United States Court of Appeals Fifth Circuit F I L E D REVISED MAY 18, 2004 April 29, 2004 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk
No. 03-10728
MARTIN K EBY CONSTRUCTION COMPANY INC
Plaintiff - Appellant
v.
DALLAS AREA RAPID TRANSIT
Defendant - Appellee
Appeal from the United States District Court for the Northern District of Texas
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.
KING, Chief Judge:
Plaintiff-Appellant Martin K. Eby Construction Company, Inc.
(Eby) appeals the district court’s judgment dismissing its action
against Defendant-Appellee Dallas Area Rapid Transit (DART).
Agreeing with the lower court that Eby must exhaust
administrative remedies before pursuing this action, we affirm.
I. Background
A. Facts
DART is a regional transportation authority created under
1 Chapter 452 of the Texas Transportation Code. See Williams v.
Dallas Area Rapid Transit, 242 F.3d 315, 317 (5th Cir. 2001); see
also In re Dallas Area Rapid Transit, 967 S.W.2d 358, 359 (Tex.
1998). In April 2002, after a competitive-bidding process, DART
awarded to Eby a contract to build a section of DART’s light-rail
transit line near downtown Dallas. Construction commenced in
June 2002. During the first six months of work on the project,
Eby made little progress. According to Eby, this delay was
caused by numerous deficiencies and inaccuracies in the designs
that were contained in DART’s bid solicitation. In DART’s view,
however, Eby bears significant responsibility for the
construction delays. Regardless of the cause of the delays, we
must determine whether Eby can pursue its suit without first
exhausting administrative remedies.
DART’s Administrative Dispute-Resolution Process
DART’s bid solicitation for the light-rail project--which is
incorporated into the parties’ contract as an exhibit--contains a
provision stating that the bidder, by responding to the
solicitation, “agrees to exhaust its administrative remedies
under . . . [1] [DART]’s Procurement Regulations or [2] the
Disputes Clause of any resulting contract” before “seeking
judicial relief of any type in connection with any matter related
to this solicitation, the award of any contract, and any dispute
under any resulting contract.” DART’s procurement regulations
contain procedures for resolving disagreements with its
2 contractors. They were promulgated in accordance with express
statutory authority; the Texas Legislature has empowered regional
transportation authorities, such as DART, to “adopt and enforce
procurement procedures, guidelines, and rules . . . covering:
[inter alia] the resolution of . . . contract disputes.” TEX.
TRANSP. CODE ANN. § 452.106(a)(2)(C) (Vernon 1999). Also, the
contract between DART and Eby contains a disputes clause, which
requires the contractor, Eby, to submit its grievances to DART’s
administrative process before seeking judicial review.
DART’s procurement regulations and the contract’s disputes
clause both provide for a similar administrative dispute-
resolution process, and the regulations contain greater detail.
Both encompass a broad range of potential disagreements. The
disputes clause applies to “any dispute concerning a question of
fact or law arising under or related to [the] contract.”
Expounding on the coverage of DART’s administrative process,
DART’s regulations state that the process covers “controversies
between [DART] and a contractor which arise under, or by virtue
of, a contract between them,” including, “without limitation,
controversies based upon breach of contract, mistake,
misrepresentation, or other cause for contract modification,
reformation, or rescission.” The regulations further explain
that the “word ‘controversy’ is meant to be broad and all-
encompassing,” applying to “the full spectrum of disagreements
from pricing of routine contract changes to claims of breach of
3 contract.”
The regulations and the disputes clause both mandate that
controversies be submitted to the contracting officer--the person
executing the contract on behalf of DART--for resolution.1 The
decision of the contracting officer is final unless the
contractor appeals within ninety days. Administrative appeals
are heard by DART’s authorized representatives, who are mostly
current or former members of the federal Armed Services Board of
Contract Appeals. DART also has promulgated a set of extensive
procedural rules for adjudicating appeals; the rules envision a
quasi-judicial proceeding that includes, among other things,
discovery and a de novo hearing where the contractor can be
represented by counsel.
Regarding the finality of the administrative decision, the
regulations and the disputes clause contain nearly identical
language: “The decision . . . shall be final and conclusive as to
questions of fact unless determined by a court of competent
jurisdiction to have been fraudulent, capricious, arbitrary, so
grossly erroneous as necessarily to imply bad faith, or not
1 Eby complains that the disputes clause does not require DART to submit its grievances to the administrative process. But both DART’s regulations and the disputes clause indicate that the dispute-resolution process is intended to resolve all conflicts between the parties. Further, DART’s regulations contain a provision explicitly stating that “[a]ll controversies involving claims asserted by [DART] against a contractor which cannot be resolved by mutual agreement shall be the subject of a decision by the Contracting Officer.”
4 supported by substantial evidence.”2 Further, the administrative
resolution is not final on questions of law. The regulations and
the disputes clause permit a dissatisfied contractor to seek
judicial review of the administrative decision within two years
of the contractor’s receipt of the decision.
Although Eby did not submit its grievances to the
administrative process described above, it asserts that it
complained to DART regarding the allegedly inadequate bid
specifications. According to Eby, DART neither accepted
responsibility for the design defects nor compensated Eby for
most of the cost overruns that it had incurred in performing the
work.3 Substantial construction remains to be done, and Eby
anticipates significant additional losses if it is forced to
complete the project. Frustrated with this state of affairs, Eby
filed suit in federal court against DART in January 2003.
B. Proceedings in the District Court
In its complaint, Eby pleaded two causes of action: breach
2 At various places in its brief, Eby claims that DART’s administrative process intends to resolve conclusively any questions of fact. But, as shown here, DART’s procurement regulations and the disputes clause of the parties’ contract both provide for substantial-evidence review of DART’s findings of fact. Regardless, we do not, in this appeal, express any opinion on the extent to which a subsequent court should defer to any findings of fact made during DART’s administrative process. 3 Eby’s complaint acknowledges that DART has paid Eby for individual change-order claims filed by Eby in accordance with the contract. But Eby maintains that this procedure is inadequate to compensate it for the losses it has suffered and will continue to suffer.
5 of contract and misrepresentation. As remedies, Eby sought
rescission of the agreement and compensation on a quantum meruit
basis. In response, DART moved to dismiss, contending first that
Eby had failed to state a claim on which relief could be granted
because it had not exhausted its administrative remedies.
Second, DART asserted that Eby’s misrepresentation claim should
be dismissed because it is a tort claim and governmental immunity
bars tort claims against DART.
The district court granted DART’s motion to dismiss both of
Eby’s claims under Rule 12(b)(6). First, the court held that Eby
could not pursue its breach-of-contract claim without first
exhausting the administrative procedure that has been established
by DART in accordance with Texas statutory law and incorporated
into the parties’ contract.4 Second, the court concluded that
governmental immunity bars Eby’s tort claim of misrepresentation.
Accordingly, in July 2003, the district court entered a judgment
that Eby take nothing on its claims against DART.5 Eby appeals,
challenging both of the district court’s rulings.
4 Rule 12(b)(6) forms a proper basis for dismissal for failure to exhaust administrative remedies. Taylor v. United States Treasury Dep’t, 127 F.3d 470, 476-78 & n.8 (5th Cir. 1997).
5 When a district court dismisses a claim under Rule 12(b)(6) for failure to exhaust administrative remedies, the dismissal is without prejudice to the claimant’s right to return to court after it has exhausted its administrative remedies. See Taylor, 127 F.3d at 478; Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035, 1037 (5th Cir. 1986).
6 II. Standard of Review
The grant of a Rule 12(b)(6) motion to dismiss is reviewed
de novo. Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th
Cir. 2003). Further, this court accepts “all well-pleaded facts
as true, viewing them in the light most favorable to the
plaintiff.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999). “Thus, the court should not dismiss [a] claim unless the
plaintiff would not be entitled to relief under any set of facts
or any possible theory that [it] could prove consistent with the
allegations in the complaint.” Id.
III. Eby’s Breach-of-Contract Claim
Eby maintains that the district court erred by requiring it
to exhaust DART’s administrative dispute-resolution process
before seeking relief for breach of contract in a court of law.
It challenges both the district court’s reliance on the parties’
contract and the court’s reliance on the dispute-resolution
procedures promulgated by DART at the direction of the Texas
Legislature. Defending the district court’s judgment, DART
primarily contends that the doctrine of exhaustion of
administrative remedies requires Eby to submit its grievances to
DART’s administrative process before pursuing judicial review.
Alternatively, DART relies on both its bid solicitation and the
parties’ contract in maintaining that Eby agreed to exhaust
administrative remedies before seeking judicial review.
7 As DART asserts, Texas courts generally do require a party
to exhaust its administrative remedies before seeking judicial
review of the decision of a governmental entity. See Tex. Dep’t
of Transp. v. Jones Bros. Dirt & Paving Contractors, Inc., 92
S.W.3d 477, 484-85 (Tex. 2002); Tex. Educ. Agency v. Cypress-
Fairbanks I.S.D., 830 S.W.2d 88, 89-90 & n.1 (Tex. 1992); Tex.
State Bd. of Exam’rs in Optometry v. Carp, 343 S.W.2d 242, 246-47
(Tex. 1961); Firefighters’ & Police Officers’ Civil Serv. Comm’n
v. Herrera, 981 S.W.2d 728, 732 (Tex. App.--Houston [1st Dist.]
1998, pet. denied); Caspary v. Corpus Christi Downtown Mgmt.
Dist., 942 S.W.2d 223, 226 (Tex. App.--Corpus Christi 1997, writ
denied); Bandera Downs, Inc. v. Alvarez, 824 S.W.2d 319, 321
(Tex. App.--San Antonio 1992, no writ); see also Glasscock
Underground Water Conservation Dist. v. Pruit, 915 S.W.2d 577,
580 (Tex. App.--El Paso 1996, no writ) (“In most instances, a
party must exhaust available administrative remedies before
resorting to the courts.” (citing Webb County Appraisal Dist. v.
New Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex. 1990))). But,
as Eby notes, none of these cases is precisely on point; they all
deal with administrative procedures codified in a statute.6
DART’s dispute-resolution process, by contrast, is found only in
its own procurement regulations and in the parties’ contract.
6 Cf. Taylor, 127 F.3d at 476-77 (applying the “jurisprudential exhaustion doctrine” and dismissing plaintiff’s suit against the IRS for failure to exhaust the IRS’s non- statutory administrative procedure for Privacy Act requests).
8 Thus, this case presents a question of first impression in Texas-
-i.e., whether a contractor can sue a regional transportation
authority for breach of contract without first submitting its
claim to the authority’s administrative process. As we explain
below, we conclude that the Texas Supreme Court, if faced with
this situation, would hold that Eby must first exhaust the
administrative remedies provided in DART’s regulations before
pursuing a breach-of-contract action in a court of law. See,
e.g., Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 406 (5th Cir.
2004) (stating the general rule that, when faced with an
unsettled question of substantive state law in a diversity case,
a federal court must make an “Erie-guess” as to how the state’s
highest court would answer the question).
Eby asserts that, because DART lacks governmental immunity
from Eby’s breach-of-contract claim, Eby has the right to sue
without first exhausting administrative remedies. Eby argues
that, under Texas law, DART waived its governmental immunity from
Eby’s breach-of-contract action by contracting with Eby. Eby is
half right. In Texas, governmental immunity embraces two
principles: “immunity from suit and immunity from liability.”
Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex.
2002). Thus, although Eby is correct that DART waived immunity
from liability by contracting with Eby, DART retains immunity
from suit on the contract, unless that immunity has been
expressly waived. Id. (“When a governmental entity contracts
9 with a private party . . . it is liable on its contracts as if it
were a private party. But a governmental entity does not waive
immunity from suit simply by contracting with a private party.
Express consent is required to show that immunity from suit has
been waived.” (citations omitted)).
Eby maintains that DART’s immunity from suit has been waived
by the Texas Legislature. In Eby’s view, the Legislature waived
DART’s governmental immunity from suit by declaring in DART’s
enabling legislation that it “may sue and be sued.” TEX. TRANSP.
CODE ANN. § 452.054(b). Texas courts are divided, however, on
whether such language is sufficiently clear and unambiguous to
constitute a waiver of immunity. See, e.g., Satterfield &
Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., 123 S.W.3d
63, 65-68 (Tex. App.--Dallas 2003, no pet.) (disagreeing with
several other Texas Courts of Appeals and holding that “sue and
be sued” language does not waive a governmental entity’s
immunity). In any event, Eby’s argument is beside the point.
Even if DART lacks governmental immunity, as Eby argues, Eby
would not be relieved of its obligation to exhaust administrative
remedies.
Eby cites no authority for the proposition that a plaintiff
is only required to exhaust administrative remedies against a
defendant who enjoys governmental immunity.7 Cf. State v. Fid. &
7 Eby contends that General Services Commission v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001), does stand
10 Deposit Co. of Md., 127 S.W.3d 339, 345-47 (Tex. App.--Austin
2004, no pet.) (holding that the State waived its sovereign
immunity from the defendant’s counterclaims by filing suit, and
then separately analyzing whether the defendant’s counterclaims
must nonetheless be dismissed for failure to exhaust statutorily
prescribed administrative remedies). On the contrary, since
DART’s administrative process culminates in the opportunity for
judicial review, it makes little sense to say that the process is
for such a proposition. But Little-Tex is inapposite. Recall that, although the State of Texas waives immunity from liability by entering into an agreement, it generally retains immunity from suit on its contracts. In Little-Tex, the Texas Supreme Court considered whether the State waives its immunity from suit by accepting benefits under a contract. Id. at 595. The Court took note of the Texas Legislature’s recent enactment of a detailed statute governing the resolution of certain contract claims against the State. See TEX. GOV’T CODE ANN. §§ 2260.001-.108 (Vernon 2000). (This statute does not apply to claims against political subdivisions like DART. See id. § 2260.001(1), (4); Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 632-34 (Tex. App.--Dallas 2001, pet. denied) (holding that DART is both a governmental entity and “a legally constituted political subdivision of the state”).) This newly enacted legislation established an administrative process to which plaintiffs must submit their claims before seeking the Legislature’s consent to sue the State under Chapter 107 of the Texas Civil Practice and Remedies Code. TEX. GOV’T CODE ANN. § 2260.005. The Court rejected the plaintiffs’ waiver-by-conduct argument “in light of the Legislature’s enactment of” this administrative process for disposing of contract claims against the State. Little-Tex, 39 S.W.3d at 597. True, the Little-Tex opinion indicates that a plaintiff does not have to submit to the administrative procedures in Chapter 2260 of the Texas Government Code if she has already obtained the Legislature’s consent to sue, since the process serves as a prerequisite to requesting such consent. Id. But, while the obligations of this particular administrative scheme are tied to the existence of governmental immunity, Little-Tex does not state, or even imply, that exhaustion of administrative remedies is generally not required when a defendant lacks governmental immunity from suit.
11 enforceable only if DART is immune from suit in a court of law.
Further, while Eby focuses heavily on the apparent waiver of
governmental immunity in DART’s enabling legislation, it ignores
the fact that the very same legislation also explicitly delegated
to DART the power to “adopt and enforce” dispute-resolution
procedures, TEX. TRANSP. CODE ANN. § 452.106(a)(2)(C) (emphasis
added), strongly suggesting that participation in those
procedures is not merely voluntary. Put another way, the
Legislature’s waiver of DART’s governmental immunity does not
equate to permission for contractors to sue DART without first
submitting their claims to the statutorily authorized
administrative process. Although the Legislature may have
intended to waive DART’s governmental immunity, it also seems to
have intended to require contractors to submit their claims to
DART’s administrative process before bringing suit. To conclude
otherwise would fail to give effect to the language of Section
452.106(a)(2)(C). See, e.g., Perkins v. State, 367 S.W.2d 140,
146 (Tex. 1963) (“[I]t is settled that every word in a statute is
presumed to have been used for a purpose; and a cardinal rule of
statutory construction is that each sentence, clause and word is
to be given effect if reasonable and possible.”).
In addition, Eby--both by submitting a bid and by entering
into the contract--agreed to submit its claims to DART’s
12 administrative process.8 Nevertheless, Eby contends that DART
cannot enforce Eby’s agreement to submit its disputes with DART
to DART’s administrative process because Eby has alleged material
breach. Eby correctly states the general rule that, when a party
materially breaches a contract, the nonbreaching party can cease
performance and sue. But the cases cited by Eby all involve
appeals from a verdict against the breaching party. See Graco
Robotics, Inc. v. Oaklawn Bank, 914 S.W.2d 633, 637 (Tex. App.--
Texarkana 1995, no writ); Tribble & Stephens Co. v. Consol.
8 We note that this court has enforced a contractually established disputes procedure in a federal government contract. See Patton Wrecking & Demolition Co. v. TVA, 465 F.2d 1073 (5th Cir. 1972). (Several years after we decided Patton Wrecking, Congress enacted the Contract Disputes Act of 1978, as amended, 41 U.S.C. §§ 601-613, which requires federal government contractors to submit their claims to an administrative dispute- resolution process that is somewhat similar to DART’s, see id. §§ 605-609.) Eby argues that we should not look to Patton Wrecking for guidance, since the Wunderlich Act, 41 U.S.C. §§ 321-322, governed judicial review of the administrative determination in that case, see 465 F.2d at 1078. Eby portrays the Wunderlich Act as a restrictive piece of legislation that curtails the rights of contractors, and Eby asserts that Texas law affords it greater rights than federal-government contractors subject to the Act. But Eby fails to recognize that Congress passed the Wunderlich Act to protect contractors and to overrule a Supreme Court decision that essentially had eliminated, absent fraud, judicial review of administrative determinations rendered under disputes clauses in federal-government contracts. See Revision Notes and Legislative Reports, 41 U.S.C.A. § 321 (West 1987); United States v. Wunderlich, 342 U.S. 98, 100-01 (1951). The Wunderlich Act requires judicial review--under standards substantially similar to those provided in DART’s regulations and disputes clause--of administrative adjudications of disputes arising under federal-government contracts. See 41 U.S.C. §§ 321-322. We therefore view Patton Wrecking as a relevant guidepost that counsels in favor of enforcing Eby’s promise to exhaust administrative remedies.
13 Servs., Inc., 744 S.W.2d 945, 947 (Tex. App.--San Antonio 1987,
writ denied); Shintech Inc. v. Group Constructors, Inc., 688
S.W.2d 144, 147 (Tex. App.--Houston [14th Dist.] 1985, no writ);
see also Brown & Root U.S.A., Inc. v. J.I. Ramirez Constructors,
Inc., No. 04-95-00200-CV, 1997 WL 61488, at *3 (Tex. App.--San
Antonio Feb. 12, 1997, no writ) (not designated for publication)
(“Once a breach by Brown & Root was established, the contractual
conditions to seeking further relief were dispensed with or
relinquished by Brown & Root . . . .” (emphasis added)). None
addresses a motion to dismiss for failure to exhaust
administrative remedies. Eby provides no authority for the
proposition that, merely by alleging material breach, it can
avoid its obligation to exhaust administrative remedies before
pursuing its breach-of-contract claim in court.
As we have said in the context of determining whether a
plaintiff has stated an actionable claim for relief, “[w]hile the
district court must accept as true all factual allegations in the
complaint, it need not resolve unclear questions of law in favor
of the plaintiff.” Kansa Reins. Co. v. Cong. Mortgage Corp. of
Tex., 20 F.3d 1362, 1366 (5th Cir. 1994) (citation omitted).
Similarly, we believe (contrary to Eby’s assertion) that the
district court, in adjudicating DART’s Rule 12(b)(6) motion to
dismiss for failure to exhaust administrative remedies, was not
required to treat the contract between DART and Eby as having
been materially breached and therefore rescinded. Accordingly,
14 we conclude that Eby’s allegation of material breach does not
prevent enforcement of its promise to exhaust DART’s
administrative dispute-resolution process before filing suit.9
In sum, the Texas Legislature has delegated to DART the
authority to adopt and to enforce administrative procedures for
resolving disputes with its contractors, and Eby has agreed to
submit its contractual disputes with DART to DART’s
administrative process. Having failed to exhaust its
administrative remedies, Eby nonetheless seeks to proceed with
this suit. We conclude that, if the Texas Supreme Court were to
confront this situation, it would hold that Eby must exhaust the
administrative remedies provided in DART’s dispute-resolution
procedures before seeking relief on the parties’ contract in a
court of law.
IV. Eby’s Misrepresentation Claim
Viewing Eby’s misrepresentation claim as one sounding in
tort, the district court dismissed it as barred by governmental
immunity. Although Eby concedes that DART enjoys immunity from
tort claims, Eby asserts that the district court erred in
dismissing its misrepresentation claim because (says Eby) it is a
9 Eby also complains that DART’s administrative procedures and the disputes clause of the parties’ contract impermissibly limit the remedies that it can seek for breach of contract. We do not decide here the remedies that will be available to Eby in a subsequent proceeding in federal or state court after it properly has exhausted DART’s administrative process.
15 quasi-contractual cause of action--not a tort claim. This, Eby
reasons, is because Texas law recognizes an equitable right to
rescind a contract when one of the parties was induced to enter
into the contract by a misrepresentation of fact, such as
inadequate bid specifications. Eby therefore concludes that
governmental immunity does not bar its quasi-contractual
misrepresentation claim against DART.
DART rejects Eby’s characterization of this claim as quasi-
contractual, asserting that causes of action based on
misrepresentation sound in tort under Texas law. Thus, DART
concludes that the district court correctly dismissed Eby’s
misrepresentation claim as barred by governmental immunity.
Alternatively, DART maintains that its administrative process
covers this claim, regardless of whether it is labeled a contract
claim or a tort claim. DART therefore contends that, even if it
is not immune from this claim, Eby must still exhaust the claim
before seeking judicial review.
We begin by pointing out that Eby’s misrepresentation claim
appears to be redundant to its first cause of action for breach
of contract. In its complaint, Eby’s primary allegation in
support of its breach-of-contract claim is that the designs
contained in DART’s bid solicitation were materially inadequate
and that DART therefore breached its duty to furnish reasonably
accurate bid information. Then, under the heading
“misrepresentation,” Eby averred that it had justifiably relied
16 to its detriment on misrepresentations made by DART in its bid
materials to the effect that those materials were sufficiently
accurate to be relied on for development of a bid price. While
the language employed differs somewhat, the gravamen of both of
Eby’s claims is that DART’s bid specifications contained material
misrepresentations.
When pressed at oral argument to identify the difference
between its two claims, Eby responded by noting that it alleged,
in its first count, that DART’s breach involved refusal to
cooperate with Eby in resolving the problems caused by the
deficient bid materials. Thus, Eby asserted that its first claim
encompasses performance issues, which are not duplicated by the
misrepresentation claim. Even so, Eby has shown only that its
first claim includes allegations not present in its second claim;
it has not demonstrated that the averments in its second claim
add to what is alleged in the first count. Moreover, Eby seeks
the same contractual relief on both claims: rescission and
recovery in quantum meruit. Eby’s misrepresentation claim is,
therefore, just a subset of its breach-of-contract claim.
With this in mind, it is clear that Eby’s misrepresentation
claim, as it is presented here, is a contractual one. See
RESTATEMENT (SECOND) OF CONTRACTS § 164(1) (1981) (“If a party’s
manifestation of assent is induced by either a fraudulent or a
material misrepresentation by the other party upon which the
recipient is justified in relying, the contract is voidable by
17 the recipient.”). Thus, the district court erred in dismissing
this claim as a tort claim barred by governmental immunity.
Nevertheless, we affirm the district court’s dismissal of Eby’s
misrepresentation claim. Since DART’s administrative process is
certainly broad enough to encompass this claim, see supra Part
I(A), it also must be exhausted, for the reasons discussed above
in Part III. We accordingly affirm the district court’s
dismissal of this claim, although not on the basis of
governmental immunity. See, e.g., Chiu v. Plano Indep. Sch.
Dist., 339 F.3d 273, 283 (5th Cir. 2003) (“This Court may affirm
on grounds other than those relied upon by the district court.”).
V. Conclusion
Accordingly, we affirm the judgment of the district court
dismissing Eby’s suit.