GoDaddy.com, LLC v. Toups—A Texas Appellate Court Draws on Iqbal/Twombly to Apply the New Texas Rule on Motions to Dismiss
Historically, disposing of groundless claims at the pleading stage in Texas trial courts has been difficult. Absent clear grounds for dismissal based on jurisdiction, limitations, or other legal doctrines, defendants generally filed an answer, engaged in discovery, and moved for summary judgment as early as possible. But, as of March 2013, defendants in Texas can seek dismissal on the pleadings under Texas Rule of Civil Procedure 91a. The new rule can be most easily thought of as the Texas analogue to Federal Rule of Civil Procedure 12(b)(6), with some additional fee-shifting provisions—i.e., the "loser pays" all costs and fees associated with the motion—that distinguishes Rule 91a from its federal counterpart. Since the new rule went into effect last year, several Texas trial courts have dismissed claims under Rule 91a, but until recently, no Texas appellate court had addressed it.
In GoDaddy.com, LLC v. Toups, --- S.W.3d ---, 2014 Tex. App. LEXIS 3891 (Tex. App.--Beaumont Apr. 10, 2014, no pet. h.), the Beaumont Court of Appeals ruled that the trial court had improperly denied GoDaddy.com's motion to dismiss under Rule 91a. GoDaddy.com had asserted the affirmative defense that it was immune from liability under state tort law based on a federal statute protecting internet service providers. The court agreed to hear GoDaddy.com's interlocutory appeal from the trial court's denial of the Rule 91a motion. Relying in part on the plaintiffs' admission that GoDaddy.com did not actually create or publish sexually explicit web content, the court held that GoDaddy.com was immune from plaintiffs' tort claims. The court also concluded that any further amendment by plaintiffs (who had already taken advantage of three opportunities to amend) would be futile and, therefore, barred plaintiffs from repleading their claims.
Before reaching the merits of the defendant's immunity argument, the court determined that federal case law interpreting Rule 12(b)(6) was "instructive" for motions under Texas Rule 91a, and it invoked the oft-cited portions of Iqbal and Twombly with regard to "[f]acial plausibility," "reasonable inference[s]," and "conclusory statements." See id. at *5-6. In doing so, the court confirmed that Rule 12(b)(6) authorities should guide Texas courts in analyzing motions under Rule 91a. Given the similarities between Rule 91a and the Iqbal/Twombly framework, it is hardly surprising that the court drew from federal case law. Indeed, the language of Rule 91a tracks the U.S. Supreme Court's opinions in Iqbal and Twombly.[1]
As defendants continue to seek dismissal under Rule 91a, Texas courts of appeals will undoubtedly produce more opinions regarding the new rule's interpretation and application. Currently, there are several cases pending in other courts of appeals, and it seems likely that at some point the Texas Supreme Court—the drafter of Rule 91a—will also weigh in. Nonetheless, the increasing use of Rule 91a to obtain dismissal on the pleadings, albeit with a risk of fee-shifting for both sides, seems to bring Texas state court practice closer to that of most other federal and state courts. The recent opinion by the Beaumont Court of Appeals indicates that movement is likely to continue. Defendants who choose to file Rule 91a motions to dismiss can now cite directly to Texas case law for their motion.
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[1] While citing Iqbal and Twombly, countless federal cases note that to survive a Rule 12(b)(6) motion, the complaint must "state a claim to relief that is plausible on its face" and that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 91a draws from this framework and allows for dismissal when the "allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex. R. Civ. P. 91a.1.
