United States District Court for the Northern District of Texas, Amarillo Division
December 17, 2021, Decided; December 17, 2021, Filed
2:21-CV-75-Z-BR

Reporter
2021 U.S. Dist. LEXIS 251284 *
MARCUS A. MURPHY, Plaintiff, v. JIMMY R. WISE, in his official-capacity As Borger (TX) Tow-Truck Driver/Contractor, Defendant.
Core Terms

towing, trespass to chattel, fail to state a claim, motor carrier, cause of action, allegations, intentional infliction of emotional distress, federal law, regulation
Counsel: [*1] Marcus A Murphy, Plaintiff, Pro se, Fountain, CO.
Judges: MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE.
Opinion by: MATTHEW J. KACSMARYK
Opinion

ORDER
Before the Court is Defendant’s Motion to Dismiss for Failure to State a Claim (ECF No. 9). Having considered the procedural history, parties’ pleadings and motions practice, and relevant evidence, the Court GRANTS Defendant’s Motion to Dismiss.

BACKGROUND
The case before the Court is one of four suits brought by Plaintiff Marcus A. Murphy (“Murphy”).1 Murphy is a licensed attorney in Colorado and claims the status of pro se litigant in all four suits in which he alleges trespass and intentional infliction of emotional distress. ECF No. 3 at 3. In the present case, Murphy filed suit against Defendant Jimmy Wise (“Mr. Wise”), a resident of Texas, in his official capacity as Borger (TX) Tow-Truck Driver/Contractor. Id. at 1.
The police arrested Murphy on April 26, 2019, in Borger, TX. Murphy’s car remained in the Borger Walmart Gas Station parking lot unattended. ECF No. 12 at 21. The Borger Police requested Mr. Wise tow the vehicle following Murphy’s arrest. ECF No. 9 at 2. Upon release from [*2] the jail, Murphy attempted to recover his car from Mr. Wise’s lot. ECF No. 12 at 21. Murphy was unable to get his car out of impound because he did not have enough cash money to cover the costs. Id. Murphy subsequently remained in his “dirty and soiled” prison uniform for five days until he was able to procure the cash to retrieve his vehicle from Mr. Wise. Id. at 22.
The tow bill was approximately $700 and accounted for fees allowed by Texas law. ECF No. 9 at 2. On April 23, 2021 — approximately two years after Murphy was arrested — Murphy filed a civil complaint against Mr. Wise claiming compensatory damages of over $1,000,000. Id.
On August 9, 2021, Mr. Wise filed a Motion to Dismiss Mr. Murphy’s Complaint on the grounds that it fails to state a claim on which relief can be granted under Fed. R. Civ. P. 12(b)(6) (“Rule 12(b)(6)”), that the Court lacks jurisdiction because the allegations regarding the amount in controversy are not pled in good faith under Fed. R. Civ. P. 12(b)(7), and that Mr. Murphy’s complaint does not meet the pleading standards required by Rule 8 of the Federal Rules of Civil Procure. ECF No. 9 at 1.

LEGAL STANDARDS
In order to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible [*3] on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). The factual allegations must be sufficient to raise a right to relief that amounts to more than mere speculation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
The Court must conduct a two-pronged inquiry. See Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019). First, a court must identify the complaint’s well-pleaded facts. Id. at 599. Courts must set aside “any unsupported legal conclusions.” Id.; See also Iqbal, 556 U.S. at 678. Second, a court asks whether the remaining allegations “are sufficient to nudge the plaintiffs claim across the ‘plausibility threshold.'” Waller, 922 F.3d at 599 (quoting Iqbal, 556 U.S. at 678). In other words, a court asks whether it can reasonably infer from the complaint’s well-pleaded facts “more than the mere possibility of misconduct.” Waller, 922 F.3d at 599 (citing Iqbal, 556 U.S. at 679). This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

ANALYSIS

A. Mr. Murphy fails to state a claim for which relief can be granted.
This case is before the Court upon the basis of diversity jurisdiction, and Mr. Murphy’s claims arise under Texas state law. ECF No. 12 at 12. Therefore, this Court is tasked with applying Texas substantive law to the facts alleged in this case under the Rule 12(b)(6) standard. Having done so, the Court finds that Mr. Murphy fails to state a claim under which [*4] relief can be granted for his two causes of action.

1. Federal law precludes Mr. Murphy’s trespass to chattels cause of action.
   The Court must first determine whether Mr. Murphy properly states a claim for trespass to chattels. This Court follows the reasoning of the Court of Appeals of Texas in Dallas in A.J.’s Wrecker Serv. of Dallas, Inc. v. Salazar, 165 S.W.3d 444 (Tex. App.—Dallas 2005). In A.J.’s Wrecker, the state appellate court held that claims against towing services are preempted by federal law. Id. at 449. In the state appellate court case, the plaintiff sued a towing service on the grounds of trespass to chattel, among other causes of action, for towing her car when it was parked in an unmarked space. Id. at 446. The state court explained that towing services fall within the scope of Federal Statute 49 U.S.C.A. § 14501(c) which states that federal law prohibits states from enacting or enforcing any law that relates to “price, route, or service” of motor carriers. Id. at 447. With respect to motor carriers, Section 14501(c) provides as follows:
   (c) Motor carriers of property —
   (1) General rule.–Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any [5] motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property. (2) Matters not covered. — Paragraph (1) — (A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization; (B) does not apply to the transportation of household goods; and; (C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle. Furthermore, the state court in A.J.’s Wrecker explained that if state claims of civil theft, like trespass to chattels, [6] are allowed to proceed, towing services could be “hauled into court to defend its actions every time it tows a car without the owner’s consent” thereby constituting “regulation of motor carriers through enforcement of state law.” Id. at 449. Last, the A.J.’s Wrecker court held that the 49 U.S.C.A. § 14501(c) safety exception to preemption is limited to allowing regulation of mechanical components of motor vehicles, thereby concluding that the safety exception is not a “general exception for safety-related regulation concerning motor carriers.” Id. at 449. Thus, federal law preempted plaintiffs claims as the exception did not apply to plaintiffs “trespass to chattel” cause of action. Id. at 459.
   Like the towing company in A.J.’s Wrecker, Mr. Wise’s services as a tow-truck operator fall within the scope of a motor carrier as defined by the federal statute. Thus, because 49 U.S.C.A. § 14501(c) preempts Mr. Murphy from pursuing his state law cause of action for trespass to chattel, he fails to state a claim under Texas law for which relief can be granted by this Court.
2. Murphy fails to state a claim under state law.
   Even if the Court found federal law does not preempt Murphy’s state law claims, Murphy failed to state a claim under Texas law. The Court considered [7] whether Murphy’s trespass to chattel claim meets the elements of applicable state law and finds it does not. Texas law defines trespass to chattel as the wrongful interference with the use or possession of another’s property. Omnibus Int’l, Inc. v. AT&T, Inc., 111 S.W.3d 818, 826 (Tex. App.—Dallas 2003, pet. dismissed). For liability to attach, “causing actual damage to the property or depriving the owner of its use for a substantial period must accompany the wrongful interference.” Id. (citing See Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981)). Chapter 2308 of the Texas Occupation Code (“Tex. Occ. Code Ann.”) authorizes towing from private property without the car owner’s consent, so long as the landowner and towing company comply with its provisions. Tex. Occ. Code Ann. §§ 2308.252, 2308.301 (2013). Thus, in authorizing “towing from private property,” Texas law does not recognize it as a trespass to chattel cause of action. Here, Murphy acknowledges that Mr. Wise was working on behalf of the city of Borger as a tow-truck driver. ECF No. 3 at 1. Murphy indicates that his vehicle was towed from the Borger Walmart Gas Station, a privately owned gas station. Id. at 7. Furthermore, there is no indication that Mr. Wise wrongfully retained possession of Murphy’s vehicle as he towed the vehicle from private property as allowed by Chapter 2308 Tex. Occ. Code Ann. Thus, [8] even in the absence of federal preemption, Murphy’s claim fails to meet the elements of a trespass to chattel cause of action.
3. Murphy fails to state a claim for intentional infliction of emotional distress.
   This Court next applies the Rule 12(b)(6) analysis to determine whether Murphy’s intentional infliction of emotional distress (“IIED”) claim meets the elements of applicable Texas law.
   Texas jurisprudence follows the Restatement of Torts § 46 (1965) to these claims. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). To succeed on an IIED claim, the claimant must prove: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Id According to Section 46 of the Restatement, liability for outrageous conduct should be found “only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. cmt. d. Determining whether a complaint states a possible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and [9] common sense. Iqbal at 679. In his Complaint, Murphy asserts that Mr. Wise towed his vehicle and did not release it back into Murphy’s custody until Murphy tendered the proper payment in the form required. ECF No. 3 at 8. There are no factual allegations in Murphy’s Complaint indicating that Mr. Wise’s conduct was extreme or outrageous or that his actions caused Murphy emotional distress. Murphy’s Complaint is rather composed of broad claims and conclusory statements, none of which can survive the first prong of the Rule 12(b)(6) analysis. Furthermore, because Murphy fails to include factual allegations in his Complaint that meet the requirements for an IIED claim, the plausibility step in the Rule 12(b)(6) analysis need not be addressed. Thus, Murphy fails to state a claim under which relief can be granted for an intentional infliction of emotional distress arising under Texas law. CONCLUSION Mr. Murphy fails to state a claim satisfying Rule 12(b)(6) for both of his asserted claims of trespass to chattel and intentional infliction of emotional distress. For the reasons set forth above, the Court GRANTS Defendant’s Motion to Dismiss. Because Plaintiff’s complaint is dismissed under Rule 12(b)(6), the Defendant’s motions under Rule 12(b)(7) and Rule 8 are DENIED as moot [10] .
   SO ORDERED.
   December 17, 2021.
   /s/ Matthew J. Kacsmaryk
   MATTHEW J. KACSMARYK
   UNITED STATES DISTRICT JUDGE

JUDGMENT
Of equal date herewith, the Court GRANTED Defendant’s Motion to Dismiss Plaintiffs Complaint pursuant to Federal Rule of Appellate Procedure 12(b)(6) and DENIED as moot Defendant’s motions under Rule 12(b)(7) and Rule 8.
Judgment is entered accordingly.
December 17, 2021.
/s/ Matthew J. Kacsmaryk
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE