Case 5:16-cv-01119-OLG Document 18 Filed 01/23/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Michael Thomas Paul,

Plaintiff,

v. CIVIL ACTION NO.

City of San Antonio, acting by and 5:16-CV-01119-OLG
through City Public Service Board
(CPS Energy),

Defendant.

DEFENDANT CPS ENERGYS FIRST AMENDED 12(B)(1) AND 12(B)(6) MOTION TO

DISMISS WITH PREJUDICE AND, IN THE ALTERNATIVE, AMENDED 12(E)
MOTION FOR MORE DEFINITE STATEMENT

Defendant City of San Antonio, acting by and through City Public Service Board (CPS

Energy) submits this Amended Motion to Dismiss under Federal Rule of Civil Procedure

12(b)(1) and 12(b)(6), and in the alternative, its Amended Rule 12(e) Motion for a More Definite

Statement in response to the pro se Original Complaint, ECF No. 4, and Supplemental to

Original Complaint, ECF No. 16, filed by Plaintiff Michael Thomas Paul.1 Dismissal is

appropriate because both Mr. Pauls Original Complaint and his Supplemental to Original

Complaint fail to state a claim for relief that is plausible on its face, or a federal question that

would confer jurisdiction upon this Court.

I. Incorporation of Prior Filing

CPS Energy hereby incorporates, in their entirety, the arguments advanced in Defendant

CPS Energys 12(B)(1) and 12(B)(6) Motion to Dismiss With Prejudice, ECF. No. 14.

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CPS Energy files this Amended Motion to Dismiss in an abundance of caution to avoid any argument of waiver or
mootness of its prior Motion to Dismiss following the filing of Mr. Pauls Supplemental to Original Complaint,
ECF No. 16, which might be construed as an amendment of his Original Petition, ECF No. 4. For purposes of the
present Motion, CPS Energy presumes that Mr. Pauls live pleading in this matter is a combination of the Original
Petition and the Supplemental to Original Complaint as if the latter had been appended at the end of the former.

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II. Additional Arguments and Authorities

1. Motion to Dismiss

Mr. Pauls Supplemental to Original Complaint, ECF No. 16, raises some additional

arguments and causes of action beyond those addressed in the Original Complaint. Even so, none

of the arguments gives rise to a federal question or the jurisdiction of this Court or survives

scrutiny under Rule 12(b)(6).

A. Claims apparently not asserted against CPS Energy

It does not appear from the face of the document that Mr. Pauls claims regarding

warning labels, conspiracy, the Magnuson-Moss Warranty Act, failure to investigate or his belief

that the federal government secretly maintains control over solar array systems are asserted

against CPS Energy. See Supp. to Orig. Compl., ECF No. 16 at 15 and p. 8.

B. Fraud

In the Supplement to Original Complaint, Mr. Paul states I am claiming the use of Fraud

[sic.] to induce a contract which stems from an in person [sic.] meeting in July 2013. Supp. to

Orig. Compl. p. 3. Yet claims for fraud are subjected to a heightened pleading standard. See Fed.

R. Civ. P. 9(b); Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029,

103233 (5th Cir. 2010) (holding that a plaintiff had not adequately pleaded fraud when he

alleged only slight circumstantial evidence of fraud). Mr. Pauls conclusory and confusing

allegations do not rise to the heightened standard required for fraud claims and, therefore, the

fraud claim should be dismissed. Furthermore, the claim arises under state law and does not

present a federal question which would give rise to the jurisdiction of federal courts.

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C. Federal PURA regulation

It is not clear from Mr. Pauls Supplement to Complaint what he is referring to when he

alleges violation of the federal PURA regulation. To the extent that Mr. Paul is referring to the

Public Utility Regulatory Policies Act (PURPA), that legislation limits the availability of

review of alleged civil violations by federal courts: Notwithstanding any other provision of law,

no court of the United States shall have jurisdiction over any action arising under any provision

of subtitle A or B. 16 U.S.C. 2633(a). Standards regarding termination of customer accounts

during the pendency of disputes are found in Subtitle B. 16 U.S.C. 2623(b)(4).

CPS Energy contends that it is not subject to the PURPA provisions alluded to by Mr.

Paul and that it complied with all applicable legal requirements regarding Mr. Pauls account at

all times. However, even if his allegation had any merit, the Court lacks jurisdiction to hear it.

III. Motion for More Definite Statement

CPS Energy hereby reasserts as if set forth in their entirety herein those arguments and

positions advanced in Defendant CPS Energys Rule 12(E) Motion, in the Alternative, for More

Definite Statement, ECF. No. 14.

In addition to those arguments previously set forth, CPS Energy would draw the Courts

attention to the additional difficulty posed by Mr. Pauls Supplement to Original Petition

which makes fleeting references to laws and technical standards without explanation and which

is not properly divided into short paragraphs that would allow CPS Energy to respond. For

example, in one instance, Mr. Pauls Supplement to Original Petition has a paragraph that

extends for four pages without any break. Supp. to Orig. Pet. pp. 48.

Consequently, in the event that the Court determines that Mr. Pauls suit may proceed in

this Court, CPS Energy urges that he be ordered to prepare an amended pleading that comports

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with the Federal Rules of Civil Procedure and their requirement that claims be stated in

numbered paragraphs, each limited as far as practicable to a single set of circumstances. Fed.

R. Civ. P. 10(b).

IV. Conclusion and Prayer

The filing of the Supplement to Original Complaint has not changed the fact that Mr.

Paul has not properly pleaded any claim against CPS Energy, and has not properly invoked the

federal jurisdiction of this Court. Thus, CPS Energy respectfully requests, that the Court grant

this motion and dismiss with prejudice the causes of action asserted against it for failure to state

a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6), and

also to dismiss for the lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

In the alternative, CPS Energy asks that the Court order Mr. Paul to further amend his Complaint

to provide a clearer statement of his causes of action.

Respectfully submitted,

/s/ Matthew E. Vandenberg

Jeffrey T. Harvey
State Bar No. 6011139
jharvey@jw.com
Matthew E. Vandenberg
State Bar No. 24079501
mvandenberg@jw.com
JACKSON WALKER L.L.P.
112 E. Pecan Street, Suite 2400
San Antonio, Texas 78205
Telephone: (214) 953-6000
Facsimile: (214) 953-5822

ATTORNEYS FOR DEFENDANT

CPS ENERGY

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CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of January 2017, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system through which a copy was served upon:

Michael Thomas Paul, pro se

9123 Easy Street
San Antonio, Texas 78266
(210) 294-4533
mtp8389@gmail.com

/s/ Matthew E. Vandenberg

Matthew E. Vandenberg