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Defendant City of San Antonio, acting by and through City Public Service Board (CPS
Energy) submits this Amended Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6), and in the alternative, its Amended Rule 12(e) Motion for a More Definite
Statement in response to the pro se Original Complaint, ECF No. 4, and Supplemental to
Original Complaint, ECF No. 16, filed by Plaintiff Michael Thomas Paul.1 Dismissal is
appropriate because both Mr. Pauls Original Complaint and his Supplemental to Original
Complaint fail to state a claim for relief that is plausible on its face, or a federal question that
CPS Energy hereby incorporates, in their entirety, the arguments advanced in Defendant
CPS Energys 12(B)(1) and 12(B)(6) Motion to Dismiss With Prejudice, ECF. No. 14.
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CPS Energy files this Amended Motion to Dismiss in an abundance of caution to avoid any argument of waiver or
mootness of its prior Motion to Dismiss following the filing of Mr. Pauls Supplemental to Original Complaint,
ECF No. 16, which might be construed as an amendment of his Original Petition, ECF No. 4. For purposes of the
present Motion, CPS Energy presumes that Mr. Pauls live pleading in this matter is a combination of the Original
Petition and the Supplemental to Original Complaint as if the latter had been appended at the end of the former.
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1. Motion to Dismiss
Mr. Pauls Supplemental to Original Complaint, ECF No. 16, raises some additional
arguments and causes of action beyond those addressed in the Original Complaint. Even so, none
of the arguments gives rise to a federal question or the jurisdiction of this Court or survives
It does not appear from the face of the document that Mr. Pauls claims regarding
warning labels, conspiracy, the Magnuson-Moss Warranty Act, failure to investigate or his belief
that the federal government secretly maintains control over solar array systems are asserted
against CPS Energy. See Supp. to Orig. Compl., ECF No. 16 at 15 and p. 8.
B. Fraud
In the Supplement to Original Complaint, Mr. Paul states I am claiming the use of Fraud
[sic.] to induce a contract which stems from an in person [sic.] meeting in July 2013. Supp. to
Orig. Compl. p. 3. Yet claims for fraud are subjected to a heightened pleading standard. See Fed.
R. Civ. P. 9(b); Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029,
103233 (5th Cir. 2010) (holding that a plaintiff had not adequately pleaded fraud when he
alleged only slight circumstantial evidence of fraud). Mr. Pauls conclusory and confusing
allegations do not rise to the heightened standard required for fraud claims and, therefore, the
fraud claim should be dismissed. Furthermore, the claim arises under state law and does not
present a federal question which would give rise to the jurisdiction of federal courts.
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Case 5:16-cv-01119-OLG Document 18 Filed 01/23/17 Page 3 of 5
It is not clear from Mr. Pauls Supplement to Complaint what he is referring to when he
alleges violation of the federal PURA regulation. To the extent that Mr. Paul is referring to the
Public Utility Regulatory Policies Act (PURPA), that legislation limits the availability of
review of alleged civil violations by federal courts: Notwithstanding any other provision of law,
no court of the United States shall have jurisdiction over any action arising under any provision
CPS Energy contends that it is not subject to the PURPA provisions alluded to by Mr.
Paul and that it complied with all applicable legal requirements regarding Mr. Pauls account at
all times. However, even if his allegation had any merit, the Court lacks jurisdiction to hear it.
CPS Energy hereby reasserts as if set forth in their entirety herein those arguments and
positions advanced in Defendant CPS Energys Rule 12(E) Motion, in the Alternative, for More
In addition to those arguments previously set forth, CPS Energy would draw the Courts
attention to the additional difficulty posed by Mr. Pauls Supplement to Original Petition
which makes fleeting references to laws and technical standards without explanation and which
is not properly divided into short paragraphs that would allow CPS Energy to respond. For
example, in one instance, Mr. Pauls Supplement to Original Petition has a paragraph that
extends for four pages without any break. Supp. to Orig. Pet. pp. 48.
Consequently, in the event that the Court determines that Mr. Pauls suit may proceed in
this Court, CPS Energy urges that he be ordered to prepare an amended pleading that comports
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with the Federal Rules of Civil Procedure and their requirement that claims be stated in
numbered paragraphs, each limited as far as practicable to a single set of circumstances. Fed.
R. Civ. P. 10(b).
The filing of the Supplement to Original Complaint has not changed the fact that Mr.
Paul has not properly pleaded any claim against CPS Energy, and has not properly invoked the
federal jurisdiction of this Court. Thus, CPS Energy respectfully requests, that the Court grant
this motion and dismiss with prejudice the causes of action asserted against it for failure to state
a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6), and
also to dismiss for the lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
In the alternative, CPS Energy asks that the Court order Mr. Paul to further amend his Complaint
Respectfully submitted,
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Case 5:16-cv-01119-OLG Document 18 Filed 01/23/17 Page 5 of 5
CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of January 2017, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system through which a copy was served upon: