UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
HOAINHAN "PAUL" TRUONG, ZSUZSANNA "SUSAN" POLGAR,
JOEL CHANNING, WILLIAM GOICHBERG, THE UNITED STATES
CHESS FEDERATION, BILL HALL, HERBERT RODNEY VAUGHN,
GREGORY ALEXANDER, FRANK NIRO, GRANT PERKS,
WILLIAM BROCK, RANDALL HOUGH, RANDY BAUER,
JERRY BERRY, TEXAS TECH UNIVERSITY AND
UNITED STATES OF AMERICA,
TEXAS TECH UNIVERSITYS MOTION TO DISMISS
TO THE HONORABLE JUDGE DENNY CHIN:
NOW COMES Defendant, Texas Tech University, by and through Greg
Abbott, Attorney General of the State of Texas, and the undersigned
Assistant Attorney General, and files its Motion to Dismiss pursuant
to Rule 12(b)(1) and 12(b)(6), FED. R. Civ. P., and respectfully show
the Court as follows:
Sloan filed a lengthy complaint naming Texas Tech University ("TTU")
as Defendant regarding matters of defamation. Sloan identifies federal
questions as the basis for his jurisdiction. See Verified Complaint,
Paragraph 2. Sloan seeks to vindicated his Constitutional rights to
due process, liberty, and detainment. The vehicle for vindication of
constitutional guarantees is 42 U.S.C. § 1983. Under § 1983,
Plaintiffs case must be dismissed for the following reasons:
1. Plaintiff alleges no specific cause of action against Texas Tech
2. Texas Tech University has 11th Amendment immunity from Plaintiffs §
3. Texas Tech University is not a person within the meaning of § 1983.
4. Texas Tech University is immune from suit under 47 U.S.C. § 230.
STANDARD OF REVIEW
A complaint must be dismissed if the court lacks subject matter
jurisdiction over the plaintiffs claim, FED. R. Civ. P. 12(b)(1), or
if the plaintiff fails to state a claim upon which relief may be
granted, FED. R. Civ. P. 12(b)(6). "A motion to dismiss pursuant to
Rule 12(b)(1) is analyzed under the same standard as a motion to
dismiss under rule 12(b)(6)." August Trading Inc. v. United States
Agency For Int'1 Dev., 67 F.Supp.2d 964 (S.D. Tx. 2001) at page 2;
citing Home Builders Assoc. of Mississippi, Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998). A dismissal pursuant to Rule 12(b)
(6) is only proper when it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his or her claims that would
entitle the plaintiff to relief. Rubinstein v. Collins, 20 F.3d 160
ARGUMENT AND AUTHORITIES
A. Plaintiff makes alleges no causes of action against Texas Tech
Plaintiff specifies five (5) causes of action in his Verified
Complaint. In none of these does Plaintiff allege a legally
recognizable cause of action against TTU. Plaintiff describes two
Defendants as faculty members of TTU. See Verified Complaint,
Paragraphs 16-17. Plaintiffs only other reference to Texas Tech again
mentions that TTU recently hired two Defendants and that TTU allowed
those Defendants to use TTU computers. See Verified Complaint,
Paragraphs 40-41. TTU y denies that any alleged defamatory messages in
this case were sent from any TTU omputer. TTU is not identified as
committing any action identified in Counts I-V. Because of this,
Plaintiff does not demonstrate to the court that it has subject matter
jurisdiction with respect to TTU, nor does Plaintiff state a claim
upon which relief can be granted. Defendant is therefor entitled to
dismissal from all aspects of this lawsuit.
B. Eleventh Amendment Immunity bars Plaintiffs § 1983 Claim against
Texas Tech University
If Plaintiff makes any possible claim against TTU, it is the
vindication of his Constitutional rights under 42 U.S.C. § 1983. While
Plaintiff has not asserted such claims against TTU, such claims would
be barred in the event that they were made.
It is well-settled that the Eleventh Amendment deprives a federal
court of jurisdiction to hear a suit against the State of Texas,
regardless of the relief sought, unless sovereign immunity is
expressly waived. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100-02,104 S.Ct 900, 908-09 (1984); Edelman v. Jordan, 415 U.S.
651,662-63,94 S.Ct. 1347,1355-56 (1974). Congress may, however,
abrogate a State's sovereign immunity under the Eleventh Amendment.
Kimel v. Florida Bd. Of Regents, 528 U.S.62,120 S.Ct. 631, 644 (2000);
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114,
1123-24 (1996). Likewise, a State may waive its immunity to suit in
federal court. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299,
305, 110 S.Ct. 1868, 1873 (1990); Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 105 S.Ct. 3142 (1985). In order to waive its immunity to
suit in federal court, however, a State "must specify [its] intention
to subject itself in federal court."' Feeney, 495 U.S. at 306, 110
S.Ct. at 1873 (quoting Atascadero, 473 U.S. 241. 105 S.Ct. at 3146)
(emphasis in original). State universities are afforded Eleventh
Amendment immunity as a matter of law. See Dube v. State University of
New York, 900 F.2d 587, X9-1 (2d Cir.1990), (The Second Circuit held
that "[f)or Eleventh Amendment purposes, SUNY is an integral part of
the government of the State of New York and when it is sued the State
is the real party." (citing State Univ. of New York v. Syracuse Univ.,
285 A.D. 59, 61, 135 N.Y.S.2d 539, 542 (3d Dept.1954); see also State
University of New York v. Syracuse, 206 Misc. 1003, 137 N.Y.S.2d 916
(Sup.Ct. Albany Cty.1954), affd, 285 A.D. 59, 135 N.Y.S.2d 539 (3d
Dept.1954); People v. Branham, 53 Misc.2d 346, 347-48, 278 N.Y.S.2d
494, 496 (Sup.Ct. Albany Cty.1967) ("the State University is an
integral part of the government of the State and when it is sued the
State is the real party").
TTU as a Defendant is entitled to Eleventh Amendment immunity unless
such immunity has been waived by a valid exercise of Congressional or
State legislative action. See United States v. Texas Tech Univ., 171 F.
3d 279, 289 (5th Cir.1999) (holding that Eleventh Amendment protects
Texas Tech University and its medical branch). Section 1983 does not
abrogate a state's Eleventh Amendment immunity and there has been no
waiver for section 1983 claims on the part of the State. See Quern v.
Jordan, 440 U.S. 332 (1979). Absent waiver or abrogation, sovereign
immunity extends to all state agencies because the State is the real
party in interest. See F. D.1. C. v. Meyer, 510 U.S. 471, 484-86
(1994); Kentucky v. Graham, 473 U.S. 159, 169 (1985). Nor has Texas
waived its immunity to suit in federal court under constitutional tort
statutes such as §§ 1981, 1983, 1985
I A particularly strict standard applies: immunity to suit in federal
court is waived only by "the most express language or by such
overwhelming implication from the text as [will] leave no room for any
other reasonable construction." Feeney, 495 U.S. at 305-06, 110 S.Ct.
and 1986. See e.g., Aguilar v. Texas Dept. of Crim. Justice, Inst.
Div., 160 F.3d 1052, 1054 (5th Cir. ). cert. denied, 120 S.Ct. 130
(1999). Consequently, this Court lacks jurisdiction over any uses of
action alleged by Plaintiff against Texas Tech University, and the
case against TTU should be dismissed as a matter of law.
C. Texas Tech University is not a person within the meaning of § 1983
Likewise, Plaintiff would be unable to obtain relief because TTU is
not a "person" in the § 1983 context. See, e.g., Hafer v. Melo, 502
U.S. 21, 22-23, 112 S.Ct. 358, 360 (1991); Will v. Michigan Dept. Of
State Police, 491 U.S. 58, 71,109 S.Ct. 2304, 2312 (1989); Pennhurst,
465 U.S. at 101, 104 S.Ct. at 908-09. In Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 731, 109 S.Ct. 2702, 2721 (1989), the court said
the legislative history of Section 1983 (the Civil Rights Act of 1871)
indicates that "Congress intended that the explicit remedial
provisions of § 1983 be controlling in the context of damages actions
brought against state actors alleging violation of the rights declared
D. Plaintiff's Claim Against Texas Tech University is Barred by the 42
U.S.C. § 230.
TTU specifically denies that any alleged defamatory messages in this
case were sent from any TTU computer. Even if such messages were sent
from a TTU computer, any potential claim by Plaintiff against TTU in
this case is barred by the Communications Decency Act of 1996 ("CDA"),
47 U.S.C. § 230, et seq. Section 230 provides that "[n]o provider or
user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another
footnote 2 In 1991 Congress amended § 1981 to add 1981(c) which
provided in part that the "rights protected" are protected against
"impairment under color of State law," but these provisions did not
overrule Jett, by allowing a direct cause of action under § 1981
against state actors. Oden v. Oktibbeha County, Mississippi, 246 F.3d
458, 463 (5th Cir. 200 1)("We are persuaded that the conclusion in
Jett remains the same after Congress enacted the 1991 amendments.")
information content provider," id . § 230(c)(1), and that "[n]o cause
of action may be brought and liability may be imposed under any State
or local law that is inconsistent with this section," id.
230(e)(3). Section 230(c) thus immunizes internet service providers
from defamation and other, on-intellectual property, state law claims
arising from third-party content. See Gucci Am., Inc. v. Hall &
Assocs., 135 F.Supp. 2d 409, 417 (S.D. N.Y.2001). By its plain
language, § 230 creates a federal immunity to any cause of action that
would make service providers liable for information originating with a
third party user of the service. See Zeran v. America Online, Inc.,
129 F.3d 327, 330 (4th Cir.1997). Specifically, § 230 precludes courts
from entertaining claims that would place a computer service provider
in a publisher's role. Zeran at 330. The Zeran quotation, in context,
refers to defamation and other forms of tort liability. Gucci Am.,
Inc. at 415.
In the instant case, TTU operates only in the role of an interactive
computer service. § 230 (f)(2) defines "Interactive computer service"
The term "interactive computer service" means any information service,
system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically
a service or system that provides access to the Internet and such
systems operated or services offered by libraries or educational
Clearly in this case, the allegation that TTU allowed other Defendants
to use TTU computers puts TTU in the role of an interactive computer
service. Consequently, under Zeran and the other authority cited
supra, TTU is immune from the claims of this suit, and is entitled to
This Court should dismiss Plaintiff's claims against Texas tech
University as described hereinabove.
WHEREFORE, Defendant prays that Plaintiff take nothing by his suit,
and that Defendant recovers all such other and further relief, special
or general, at law or in equity, to which it is justly entitled,
including but not limited to its costs incurred herein.
GREG ABBOTT Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
DAVID S. MORALES
Deputy Attorney General for Civil Litigation
ROBERT B. O'KEEFE
Chief Litigation Division
SCOT M. GRAYDON
Texas Bar N. 24002175
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 320-0667 FAX
ATTORNEYS FOR DEFENDANT TEXAS TECH UNIVERSITY
A. "TTU y denies that any alleged defamatory messages in this case
were sent from any TTU omputer. " sounds like an assertion to be
debated at trial, not granted at this point to dismiss the case.
B. I don't know anything about this legal point.
C. If TTU isn't a "person" nobody could ever sue them. Maybe there's
more to it than this, but this doesn't seem very likely to hold up.
D. Again, I don't know enough to have an opinion about this.
So I think they're relying on the 11th amendment (B) and the CDA
> Here's my reaction to TTU's four points:
> A. "TTU y denies that any alleged defamatory messages in this case
> were sent from any TTU computer. " sounds like an assertion to be
> debated at trial, not granted at this point to dismiss the case.
> B. I don't know anything about this legal point.
> C. If TTU isn't a "person" nobody could ever sue them. Maybe there's
> more to it than this, but this doesn't seem very likely to hold up.
> D. Again, I don't know enough to have an opinion about this.
> So I think they're relying on the 11th amendment (B) and the CDA
I believe what they're saying is that Texas Tech is not a "person" as
the term is used in 42 USC 1983. This is a civil rights law about
"persons" acting "under color of law." It is generally used for things
like cops beating people up for trying to run voter-registration
drives. I don't know if they're right, but the Texas AG probably knows
more about this than either of us. I agree that the 11th Amendment and
Section 230 arguments are the important ones. The rest seems to be
there in case Sloan tries to amend his complaint somehow.