Punch v. City of DeSoto

N.D. Texas

Punch v. City of DeSoto

DecidedFebruary 10, 2020

Docket3:20-cv-00029

StatusUnknown

This text of Punch v. City of DeSoto (Punch v. City of DeSoto) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Punch v. City of DeSoto, (N.D. Tex. 2020).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SHMARA PUNCH, § § Plaintiff, § § VS. § Civil Action No. 3:20-CV-0029-D § CITY OF DESOTO, et al., § § Defendants. § MEMORANDUM OPINION AND ORDER In this removed action, defendant DeSoto Chamber of Commerce (“DCC”) moves to dismiss the defamation claim of plaintiff Shmara Punch (“Punch”) based on the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). The court denies the motion.1 Although DCC does not address this fundamental question in its motion, the TCPA does not apply in this case. The Fifth Circuit has held that “the TCPA does not apply to diversity cases in federal court.” Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019); see Van Dyke v. Retzlaff, 781 Fed. Appx. 368 (5th Cir. 2019) (per curiam) (applying Klocke to

1Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[] issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written, however, primarily for the parties, to decide issues presented in this case, and not for publication in an official reporter, and should be understood accordingly. case removed based on diversity of citizenship). And it does not matter that this case was removed based on federal question jurisdiction rather than on diversity of citizenship.’ Because DCC cannot rely on the TCPA to secure dismissal of Punch’s defamation claim, the motion to dismiss is denied. SO ORDERED. February 10, 2020.

a Rie A. ated SENIOR JUDGE

*Although this case was removed based on federal question jurisdiction, Klocke nonetheless controls. Punch’s state-law defamation claim is “governed by state law operating of its own force.” First S. Fed. Sav. & Loan Ass’n of Mobile, Ala. v. First S. Sav. & Loan Ass’n of Jackson Cty, Miss., 614 F.2d 71, 73 (Sth Cir. 1980) (‘The Erie result applies to any issue ‘governed by state law operating of its own force,’ regardless of the jurisdictional basis.” (citation omitted)). Therefore, Klocke’s analysis, which relies on the Erie doctrine, applies with full force. -2-

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SHMARA PUNCH, § § Plaintiff, § § VS. § Civil Action No. 3:20-CV-0029-D § CITY OF DESOTO, et al., § § Defendants. § MEMORANDUM OPINION AND ORDER In this removed action, defendant DeSoto Chamber of Commerce (“DCC”) moves to dismiss the defamation claim of plaintiff Shmara Punch (“Punch”) based on the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). The court denies the motion.1 Although DCC does not address this fundamental question in its motion, the TCPA does not apply in this case. The Fifth Circuit has held that “the TCPA does not apply to diversity cases in federal court.” Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019); see Van Dyke v. Retzlaff, 781 Fed. Appx. 368 (5th Cir. 2019) (per curiam) (applying Klocke to

1Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[] issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written, however, primarily for the parties, to decide issues presented in this case, and not for publication in an official reporter, and should be understood accordingly. case removed based on diversity of citizenship). And it does not matter that this case was removed based on federal question jurisdiction rather than on diversity of citizenship.’ Because DCC cannot rely on the TCPA to secure dismissal of Punch’s defamation claim, the motion to dismiss is denied. SO ORDERED. February 10, 2020.

a Rie A. ated SENIOR JUDGE

*Although this case was removed based on federal question jurisdiction, Klocke nonetheless controls. Punch’s state-law defamation claim is “governed by state law operating of its own force.” First S. Fed. Sav. & Loan Ass’n of Mobile, Ala. v. First S. Sav. & Loan Ass’n of Jackson Cty, Miss., 614 F.2d 71, 73 (Sth Cir. 1980) (‘The Erie result applies to any issue ‘governed by state law operating of its own force,’ regardless of the jurisdictional basis.” (citation omitted)). Therefore, Klocke’s analysis, which relies on the Erie doctrine, applies with full force. -2-

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