Preview
Filed: 5/31/2022 11:20 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 65003233
By: Shailja Dixit
6/1/2022 7:52 AM
NO. 22-CV-0763
NICOLE NADRA BAUKUS § IN THE DISTRICT COURT
Plaintiff, §
§
v. §
§
405TH JUDICIAL DISTRICT
SCOTT J. ENGLE, JAMIE B. NASH §
AND SCOTT J. ENGLE D/B/A §
MONTGOMERY COUNTY POLICE §
REPORTER §
Defendants. § GALVESTON COUNTY, TEXAS
DEFENDANTS’ MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Defendants, SCOTT J. ENGLE, JAMIE B. NASH and SCOTT J. ENGLE
D/B/A MONTGOMERY COUNTY POLICE REPORTER, and request this Honorable Court to
dismiss NICOLE NADRA BAUKUS’ Original Petition for the grounds set forth herein.
I.
TEXAS CITIZENS PARTICIPATION ACT
1. On May 2, 2022, Plaintiff filed her Original Petition. The filing is a legal action
based on or in response to Defendants’ exercise of the right to free speech, and therefore
Defendants may move for dismissal under the Texas Citizen’s Participation Act (“TCPA”). See
TEX. CIV. PRAC. & REM. CODE § 27.003(a).
2. Dismissal of this action is required because the exercise of free speech, defined as
a communication made in connection with a matter of public concern, is under the TCPA. See
TEX. CIV. PRAC. & REM. CODE § 27.001(3).
3. This motion is timely because it is filed within sixty days of the date of service of
Plaintiff’s motion. See TEX. CIV. PRAC. & REM. CODE § 27.003(b).
BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 1 OF 5
4. To overcome dismissal, Plaintiff must establish by clear and specific evidence a
prima facie case for each essential element of the claim in question." See TEX. CIV. PRAC. &
REM. CODE § 27.005(b), 27.005(c).
4. Plaintiff cannot establish by clear and specific evidence a prima facie case for
each essential element of Libel Per Se, because Defendants did not publish any false statements
regarding Plaintiff nor any statements that could have injured Plaintiff’s reputation.
5. Even if Plaintiff somehow establishes by clear and specific evidence a prima facie
case for each essential element of the claim in question, the burden shifts back to Defendants to
establish an affirmative defense or other grounds on which she is entitled to judgment as a matter
of law. See TEX. CIV. PRAC. & REM. CODE § 27.005(d). Defendants can and will easily show the
Court statements made are true and/or are an accurate reporting of allegations made by a third
party regarding a matter of public concern.
6. As a result of Plaintiff’s baseless petition, which is intended only to harass
Defendants and cause unnecessary litigation costs, Defendants shall recover costs and reasonable
attorney's fees incurred in conjunction with the dismissal, and should recover sanctions against
Plaintiff sufficient to deter future similar actions. See TEX. CIV. PRAC. & REM. CODE §
27.009(a)(1-3). Defendants have incurred and will continue to incur reasonable attorney's fees,
damages, and costs that are recoverable, for proceedings in this Court, at the Court of Appeals,
and for review at the Texas Supreme Court.
II.
BASELESS CAUSE OF ACTION
8. Pursuant to Tex. R. Civ. P. Rule 91a, a party may move to dismiss a cause of
action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if
BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 2 OF 5
the allegations, taken as true, together with inferences reasonably drawn from them do not entitle
the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person
could believe the facts pleaded.
9. Dismissal of this action is required because it has no basis in law or fact. See Tex.
R. Civ. P. Rule 91a(1).
10. This motion is timely because it is filed within sixty days of the date of service of
Plaintiff’s motion. See Tex. R. Civ. P. Rule 91a(3).
11. As a result of Plaintiff’s baseless petition, which is intended only to harass
Defendants and cause unnecessary litigation costs, Defendants may recover costs and reasonable
attorney's fees incurred in conjunction with the dismissal. See Tex. R. Civ. P. Rule 91a(7).
Defendants have incurred and will continue to incur reasonable attorney's fees, damages, and
costs that are recoverable, for proceedings in this Court, at the Court of Appeals, and for review
at the Texas Supreme Court.
WHEREFORE, Defendants request this Honorable Court to dismiss Plaintiff’s Original
Petition, with prejudice, for attorney fees, costs, sanctions, and for such other and further relief
that may be awarded at law or in equity.
Respectfully submitted,
BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 3 OF 5
Morgan Bourque, Attorney at Law
24 Waterway Avenue, Suite 660
The Woodlands, Texas 77380
(713) 862-7766 (Phone)
(832) 813-0321 (Fax)
By:
Nicholas R. Dillard
State Bar No. 24073506
nicholas.dillard@talltexaslaw.com
Morgan Bourque
State Bar No. 24062627
morgan@morganbourque.com
Attorneys for Defendants
SCOTT J. ENGLE, JAMIE B. NASH and
SCOTT J. ENGLE D/B/A MONTGOMERY
COUNTY POLICE REPORTER
BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 4 OF 5
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served in accordance with Rule
21a of the Texas Rules of Civil Procedure on the following on May 31, 2022:
Julie A. Ketterman by electronic filing manager at service@kettermanlawpc.com.
Nicholas R. Dillard
Morgan Bourque, Attorney at Law
Attorneys for Defendants
SCOTT J. ENGLE, JAMIE B. NASH and
SCOTT J. ENGLE D/B/A MONTGOMERY
COUNTY POLICE REPORTER
BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 5 OF 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Nicholas Dillard
Bar No. 24073506
nicholas.dillard@talltexaslaw.com
Envelope ID: 65003233
Status as of 6/1/2022 7:53 AM CST
Associated Case Party: NicoleNadraBaukus
Name BarNumber Email TimestampSubmitted Status
Julie A.Ketterman service@kettermanlawpc.com 5/31/2022 11:20:32 PM SENT
Associated Case Party: ScottJ.Engle
Name BarNumber Email TimestampSubmitted Status
Nicholas RDillard nicholas.dillard@talltexaslaw.com 5/31/2022 11:20:32 PM SENT
Preview
Filed: 5/31/2022 11:20 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 65003233 By: Shailja Dixit 6/1/2022 7:52 AM NO. 22-CV-0763 NICOLE NADRA BAUKUS § IN THE DISTRICT COURT Plaintiff, § § v. § § 405TH JUDICIAL DISTRICT SCOTT J. ENGLE, JAMIE B. NASH § AND SCOTT J. ENGLE D/B/A § MONTGOMERY COUNTY POLICE § REPORTER § Defendants. § GALVESTON COUNTY, TEXAS DEFENDANTS’ MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Defendants, SCOTT J. ENGLE, JAMIE B. NASH and SCOTT J. ENGLE D/B/A MONTGOMERY COUNTY POLICE REPORTER, and request this Honorable Court to dismiss NICOLE NADRA BAUKUS’ Original Petition for the grounds set forth herein. I. TEXAS CITIZENS PARTICIPATION ACT 1. On May 2, 2022, Plaintiff filed her Original Petition. The filing is a legal action based on or in response to Defendants’ exercise of the right to free speech, and therefore Defendants may move for dismissal under the Texas Citizen’s Participation Act (“TCPA”). See TEX. CIV. PRAC. & REM. CODE § 27.003(a). 2. Dismissal of this action is required because the exercise of free speech, defined as a communication made in connection with a matter of public concern, is under the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.001(3). 3. This motion is timely because it is filed within sixty days of the date of service of Plaintiff’s motion. See TEX. CIV. PRAC. & REM. CODE § 27.003(b). BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 1 OF 5 4. To overcome dismissal, Plaintiff must establish by clear and specific evidence a prima facie case for each essential element of the claim in question." See TEX. CIV. PRAC. & REM. CODE § 27.005(b), 27.005(c). 4. Plaintiff cannot establish by clear and specific evidence a prima facie case for each essential element of Libel Per Se, because Defendants did not publish any false statements regarding Plaintiff nor any statements that could have injured Plaintiff’s reputation. 5. Even if Plaintiff somehow establishes by clear and specific evidence a prima facie case for each essential element of the claim in question, the burden shifts back to Defendants to establish an affirmative defense or other grounds on which she is entitled to judgment as a matter of law. See TEX. CIV. PRAC. & REM. CODE § 27.005(d). Defendants can and will easily show the Court statements made are true and/or are an accurate reporting of allegations made by a third party regarding a matter of public concern. 6. As a result of Plaintiff’s baseless petition, which is intended only to harass Defendants and cause unnecessary litigation costs, Defendants shall recover costs and reasonable attorney's fees incurred in conjunction with the dismissal, and should recover sanctions against Plaintiff sufficient to deter future similar actions. See TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1-3). Defendants have incurred and will continue to incur reasonable attorney's fees, damages, and costs that are recoverable, for proceedings in this Court, at the Court of Appeals, and for review at the Texas Supreme Court. II. BASELESS CAUSE OF ACTION 8. Pursuant to Tex. R. Civ. P. Rule 91a, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 2 OF 5 the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. 9. Dismissal of this action is required because it has no basis in law or fact. See Tex. R. Civ. P. Rule 91a(1). 10. This motion is timely because it is filed within sixty days of the date of service of Plaintiff’s motion. See Tex. R. Civ. P. Rule 91a(3). 11. As a result of Plaintiff’s baseless petition, which is intended only to harass Defendants and cause unnecessary litigation costs, Defendants may recover costs and reasonable attorney's fees incurred in conjunction with the dismissal. See Tex. R. Civ. P. Rule 91a(7). Defendants have incurred and will continue to incur reasonable attorney's fees, damages, and costs that are recoverable, for proceedings in this Court, at the Court of Appeals, and for review at the Texas Supreme Court. WHEREFORE, Defendants request this Honorable Court to dismiss Plaintiff’s Original Petition, with prejudice, for attorney fees, costs, sanctions, and for such other and further relief that may be awarded at law or in equity. Respectfully submitted, BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 3 OF 5 Morgan Bourque, Attorney at Law 24 Waterway Avenue, Suite 660 The Woodlands, Texas 77380 (713) 862-7766 (Phone) (832) 813-0321 (Fax) By: Nicholas R. Dillard State Bar No. 24073506 nicholas.dillard@talltexaslaw.com Morgan Bourque State Bar No. 24062627 morgan@morganbourque.com Attorneys for Defendants SCOTT J. ENGLE, JAMIE B. NASH and SCOTT J. ENGLE D/B/A MONTGOMERY COUNTY POLICE REPORTER BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 4 OF 5 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served in accordance with Rule 21a of the Texas Rules of Civil Procedure on the following on May 31, 2022: Julie A. Ketterman by electronic filing manager at service@kettermanlawpc.com. Nicholas R. Dillard Morgan Bourque, Attorney at Law Attorneys for Defendants SCOTT J. ENGLE, JAMIE B. NASH and SCOTT J. ENGLE D/B/A MONTGOMERY COUNTY POLICE REPORTER BAUKUS V. ENGLE, ET AL. MOTION TO DISMISS PAGE 5 OF 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Nicholas Dillard Bar No. 24073506 nicholas.dillard@talltexaslaw.com Envelope ID: 65003233 Status as of 6/1/2022 7:53 AM CST Associated Case Party: NicoleNadraBaukus Name BarNumber Email TimestampSubmitted Status Julie A.Ketterman service@kettermanlawpc.com 5/31/2022 11:20:32 PM SENT Associated Case Party: ScottJ.Engle Name BarNumber Email TimestampSubmitted Status Nicholas RDillard nicholas.dillard@talltexaslaw.com 5/31/2022 11:20:32 PM SENT