Marshall Response 121211

8/3/2019 Marshall Response 121211

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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONTHE GIL RAMIREZ GROUP, L.L.C.AND GIL RAMIREZ, JR.

Plaintiffs,VS.IVIL ACTION NO. 4:10-CV-04872HOUSTON INDEPENDENT SCHOOLDISTRICT, LAWRENCE MARSHALL,EVA JACKSON AND RHJ-JOC, INC.

Defendants.DEFENDANT LAWRENCE MARSHALL AND MARSHALL & ASSOCIATES'ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' SECOND AMENDEDORIGINAL COMPLAINT AND REQUEST FOR PERMANENT INJUNCTION ANDJURY DEMAND

Defendants Lawrence Marshall ("Marshall") and Marshall & Associates (collectively,"Defendants") file this Answer and Affirmative Defenses to Plaintiffs The Gil Ramirez Group,L.L.C. and Gil Ramirez, Jr.'s (collectively, "Plaintiffs") Second Amended Original Complaintand Request for Permanent Injunction ("Com plaint"), and would show the Court the following:

Pursuant to Federal Rule of Civil Procedure 8(b), Defendants deny each and everyallegation contained in Plaintiffs' Complaint except for those expressly admitted below.Defendants may not have personal knowledge of the facts expressed in the Complaint and mayhave relied on individuals with knowledge o f relevant facts in forming their answers.

I.ARTIES1 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph1 of Plaintiffs Complaint, and therefore deny the same.

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2.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph6 of Plaintiffs' Complaint, and therefore deny the same.

3 .efendants admit the allegations in Paragraph 3 of Plaintiffs' Complaint.4.efendants admit the allegations in Paragraph 4 of Plaintiffs' Complaintregarding Marshall's citizenship, presidency on the HISD Board of Trustees and service address.Defendants deny the rem aining allegations in Paragraph 4.5 .efendants admit that Marshall & Associates may be served at P.O. Box 88082,Houston, Texas 77288-0082. To the extent Paragraph 5 of Plaintiffs' Complaint containsadditional allegations, Defendants deny same.

6.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph6 of Plaintiffs' Com plaint, and therefore deny the sam e.7.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in paragraph7 of Plaintiffs' Comp laint, and therefore deny the sam e.

8.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph8 of P laintiffs' Complaint, and therefore deny the same.9.fter reasonable investigation, Defendants are without sufficient information or

knowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph9 of Plaintiffs' Complaint, and therefore deny the same.

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10.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph10 of Plaintiffs' Complaint, and therefore deny the same.11.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph11 of Plaintiffs' Complaint, and therefore deny the same.12.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph

12 of Plaintiffs' Complaint, and therefore deny the same.II. JURISDICTION AND VENUE

13 .efendants deny the allegations in Paragraph 13 of Plaintiffs' Complaint.Defendants also deny that any am ounts are owed to Plaintiffs.14.ithout making any admissions as to jurisdiction, Defendants admit thatPlaintiffs purport to invoke the Court's venue but state that Paragraph 14 states a legal conclusionto which no answ er is required.

III. FACTUAL ALLEGATIONS15 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph15 of Plaintiffs' Complaint, and therefore deny the same.16.efendants admit that HISD conducted a bond issue in the amount of $805

million to construct new schools and repair and update outdated schools. To the extentParagraph 16 of Plaintiffs' Complaint contains additional allegations, Defendants deny sam e.

17.efendants deny the allegations in Paragraph 17 of Plaintiffs' Comp laint.18.efendants deny the allegations in Paragraph 18 of Plaintiffs' Complaint.3Case 4:10-cv-04872 Document 85 Filed in TXSD on 12/12/11 Page 3 of 21


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27.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph27 of Plaintiffs' Complaint, and therefore deny the same.28.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph28 of Plaintiffs' Complaint, and therefore deny the same.29 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph

29 of Plaintiffs' Complaint, and therefore deny the same.30.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph3 0 of Plaintiffs' Complaint, and therefore deny the sam e.31.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph

3 1 of Plaintiffs' Complaint, and therefore deny the sam e.32.efendants admit that Marshall became president of the board in January 2009.To the extent Paragraph 32 of Plaintiffs' Complaint contains additional allegations, Defendants,after reasonable investigation, are without sufficient information or knowledge to form a beliefas to the truth or falsehood of those allegations, and therefore deny same.33 .efendants admit that Jackson has made political contributions to the Marshall's

campaign. To the extent paragraph 33 of Plaintiffs' Complaint contains additional allegations,Defendants deny the same.



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34.efendants admit that Medford has made political contributions to the "LarryMarshall Campaign." To the extent paragraph 34 of Plaintiffs' Complaint contains additionalallegations, Defendants deny the same.35 .efendants admit that Medford has made political contributions to the "LarryMarshall Campaign." To the extent paragraph 35 of Plaintiffs' Complaint contains additionalallegations, Defendants deny the same.36.efendants deny the allegations in Paragraph 3 6 of Plaintiffs' Complaint.37.efendants admit that FMB has made political contributions to Marshall's

campaign. To the extent paragraph 37 of Plaintiffs' Complaint contains additional allegations,Defendants deny the same.

38.efendants admit that Eva Jackson is the owner of R HJ-JOC, Inc.39 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph3 9 of Plaintiffs' Com plaint, and therefore deny the same.40.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph40 of Plaintiffs' Com plaint, and therefore deny the sam e.41.efendants deny the allegations in Paragraph 41 of Plaintiffs' Complaint.42.efendants deny the allegations in Paragraph 42 of Plaintiffs' Complaint.43 .efendants deny the allegations in Paragraph 43 of Plaintiffs' Complaint.44.efendants deny the allegations in Paragraph 44 of Plaintiffs' Complaint.45 .efendants deny that Marshall intended for RHJ, Jackson, FBM and Medford toreceive most, if not all, of the HISD, and Defendants deny that presented such an issue to Dr.6Case 4:10-cv-04872 Document 85 Filed in TXSD on 12/12/11 Page 6 of 21


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Saavedra. To the extent paragraph 45 of Plaintiffs' Complaint contains additional allegations,Defendants deny the same.

46.efendants deny the allegations in Paragraph 46 of Plaintiffs' Complaint.47.efendants deny the allegations in Paragraph 47 of Plaintiffs' Complaint.48.efendants deny the allegations in Paragraph 48 of Plaintiffs' Complaint.49 .efendants deny the allegations in Paragraph 49 of Plaintiffs' Comp laint.50.efendants deny the allegations in Paragraph 5 0 of Plaintiffs' Complaint.5 1.efendants deny the allegations in Paragraph 5 1 of P laintiffs' Complaint.5 2.fter reasonable investigation, Defendants are without sufficient information or

knowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph5 2 of Plaintiffs' Complaint, and therefore deny the same.

5 3 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph5 3 of Plaintiffs' Complaint, and therefore deny the same.54.efendants deny the allegations in Paragraph 5 4 of P laintiffs' Complaint.5 5 .efendants deny the allegations in Paragraph 55 of Plaintiffs' Complaint.56.efendants admit that multiple contractors were selected under the biddingprocess, including RHJ. To the extent Paragraph 56 of Plaintiffs' Complaint contains additionalallegations, after reasonable investigation, Defendants are without sufficient information or

knowledge to form a belief as to the truth or falsehood of those allegations, and therefore denythe same.

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57. Defendants admit that FBM was approved as eligible under the second biddingprocess, as alleged in Paragraph 57 of Plaintiffs' Complaint. To the extent paragraph 57 ofPlaintiffs' Complaint contains additional allegations, Defendants den y the same.

58. Defendants deny the allegations in Paragraph 5 8 of Plaintiffs' Complaint.59. Defendants admit that Joyce Moss Clay is Marshall's campaign treasurer. To the

extent paragraph 59 of Plaintiffs' Complaint contains additional allegations, Defendants deny thesame.

60. After reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph60 of Plaintiffs' Com plaint, and therefore deny the sam e.

61. After reasonable investigation, Defendants are without sufficient information Orknowledge to form a belief as to the truth or falsehood of the allegations in paragraph 61 ofPlaintiffs' Complaint, and therefore deny the same.

62. After reasonable investigation, Defendants are without sufficient information Orknowledge to form a belief as to the truth or falsehood of the allegations in paragraph 62 ofPlaintiffs' Complaint, and therefore deny the same.

63. After reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations in paragraph 63 ofPlaintiffs' Complaint, and therefore deny the same.

64. After reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations in paragraph 64 ofPlaintiffs' Complaint, and therefore deny the same.

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65 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations in paragraph 65 ofPlaintiffs' Complaint, and therefore deny the same.66.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph66 of Plaintiffs' Com plaint, and therefore deny the sam e.67.efendants deny the allegations in Paragraph 67 of Plaintiffs' Complaint.68.fter reasonable investigation, Defendants are without sufficient information or

knowledge to form a belief as to the truth or falsehood of the allegations in paragraph 68 ofPlaintiffs' Complaint, and therefore deny the same.

69 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph69 of Plaintiffs' Complaint, and therefore deny the same.70.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph70 of Plaintiffs' Com plaint, and therefore deny the sam e.

71.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph71 of Plaintiffs' Com plaint, and therefore deny the sam e.72.fter reasonable investigation, Defendants are without sufficient information or

knowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph72 of Plaintiffs' Com plaint, and therefore deny the sam e.



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73 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph73 of Plaintiffs' Complaint, and therefore deny the same.74.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph74 of Plaintiffs' Complaint, and therefore deny the same.75 .fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph

75 of Plaintiffs' Complaint, and therefore deny the same.76.efendants deny the allegations in Paragraph 76 of Plaintiffs' Complaint.Plaintiffs' characterization of the law is overly generalized and ultimately inaccurate.77.efendants deny the allegations in Paragraph 77 of Plaintiffs' Complaint.78.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph

78 of Plaintiffs' Complaint, and therefore deny the same.79 .efendants admit that Superintendent Terry Grier stated that HISD's bid processneeds to be reviewed. To the extent Paragraph 79 of Plaintiffs' Complaint contains additionalallegations, after reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of those allegations, and therefore deny

the same.80.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph80 of Plaintiffs' Complaint, and therefore deny the same.10Case 4:10-cv-04872 Document 85 Filed in TXSD on 12/12/11 Page 10 of 21


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81.fter reasonable investigation, Defendants are without sufficient information orknowledge to form a belief as to the truth or falsehood of the allegations contained in Paragraph81 of Plaintiffs' Complaint, and therefore deny the same.IV. CAUSES OF ACTION

COUNT 1:42 U.S.C. 1983 14TH AMENDMENT82.aragraph 82 of the Plaintiffs' Complaint does not require an admission or denial.To the extent Paragraph 82 references previous allegations, Defendants incorporate all answersset forth in the prior paragraphs.83 .efendants deny the allegations in Paragraph 83 of Plaintiffs' Complaint.84.efendants deny the allegations of Paragraph 84 of Plaintiffs' Complaint.85 .efendants deny the allegations in Paragraph 85 of Plaintiffs' Complaint.86.efendants deny the allegations in Paragraph 86 of Plaintiffs' Complaint.87.efendants deny the allegations in Paragraph 87 of Plaintiffs' Complaint.88.efendants deny the allegations in Paragraph 88 of Plaintiffs' Complaint.89 .efendants deny the allegations in Paragraph 89 of Plaintiffs' Complaint.9 0.efendants deny the allegations in Paragraph 9 0 of P laintiffs' Complaint.V. CAUSES OF ACTIONCOUNT 2: VIOLATION OF THE RACKETEER INFLUENCED CORRUPTORGANIZATION ACT91.aragraph 91 of Plaintiffs' Complaint does not require an admission or denial. To

the extent Paragraph 91 references previous allegations, Defendants incorporate all answers setforth in the prior paragraphs.

92:efendants deny the allegations in Paragraph 9 2 of Plaintiffs' Complaint.9 3 .efendants deny the allegations in Paragraph 93 of Plaintiffs' Complaint.1 1



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94. Defendants deny the allegations in Paragraph 94 of Plaintiffs' Complaint.95. Defendants deny the allegations in Paragraph 9 5 of Plaintiffs' Complaint.96. Defendants deny the allegations in Paragraph 9 6 of Plaintiffs' Comp laint.97. Defendants deny the allegations in Paragraph 9 7 of Plaintiffs' Comp laint.98. Defendants deny the allegations in Paragraph 9 8 of Plaintiffs' Complaint.99. Defendants deny the allegations in Paragraph 9 9 of Plaintiffs' Complaint.100. Defendants deny the allegations in Paragraph 100 of Plaintiffs' Complaint.101. Defendants deny the allegations in Paragraph 101 of Plaintiffs' Complaint.102. Defendants deny the allegations in Paragraph 102 of Plaintiffs' Complaint.103. Defendants deny the allegations in Paragraph 103 of Plaintiffs' Complaint.104. Defendants deny the allegations in Paragraph 104 of Plaintiffs' Complaint.105. Defendants deny the allegations in Paragraph 105 of Plaintiffs' Complaint.106. Defendants deny the allegations in Paragraph 106 of Plaintiffs' Complaint.107. Defendants deny the allegations in Paragraph 107 of Plaintiffs' Complaint.108. Defendants deny the allegations in Paragraph 108 of Plaintiffs' Complaint.109. Defendants deny the allegations in Paragraph 109 of Plaintiffs' Complaint.110. Defendants deny the allegations in Paragraph 110 of Plaintiffs' Complaint.111. Defendants deny the allegations in Paragraph 111 of Plaintiffs' Complaint.112. Defendants deny all allegations in paragraph 112 of the Plaintiffs' Complaint. To

the extent paragraph 112 of Plaintiffs' Complaint seeks relief against Defendants, an admissionor denial is not required. Nevertheless, Defendants deny that Plaintiffs are entitled to the reliefthey are seeking.

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VI. CAUSES OF ACTIONCOUNT 3: BREACH OF CONTRACT/BREACH OF DUTY OF GOOD FAITH

113. Paragraph 113 of Plaintiffs' Complaint does not require an admission or denial.To the extent Paragraph 113 references previous allegations, Defendants incorporate all answersset forth in the prior paragraphs.

114. Defendants deny the allegations in Paragraph 114 of Plaintiffs' Complaint.115. Defendants deny the allegations in Paragraph 115 of Plaintiffs' Complaint.116. Defendants deny the allegations in Paragraph 116 of Plaintiffs' Complaint.117. Defendants deny the allegations in Paragraph 117 of Plaintiffs' Complaint.118. Defendants deny the allegations in Paragraph 118 of Plaintiffs' Complaint.119. Defendants deny the allegations in Paragraph 119 of Plaintiffs' Complaint.

VII. CAUSES OF A CTIONCOUNT 4: PROMISSORY ESTOPPEL


121. Defendants deny the allegations in Paragraph 121 of Plaintiffs' Complaint.122. Defendants deny the allegations in Paragraph 122 of Plaintiffs' Complaint.123. Defendants deny the allegations in Paragraph 123 of Plaintiffs' Complaint.124. Defendants deny the allegations in Paragraph 124 of Plaintiffs' Complaint.125. Defendants deny the allegations in Paragraph 125 of Plaintiffs' Complaint.126. Defendants deny the allegations in Paragraph 126 of Plaintiffs' Complaint.127. Defendants deny the allegations in Paragraph 127 of Plaintiffs' Complaint.

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VIII. CAUSES OF ACTION

COUNT 5: QUASI ESTOPPEL128. Paragraph 128 of Plaintiffs' Complaint does not require an admission or denial.

To the extent Paragraph 128 references previous allegations, Defendants incorporate all answersset forth in the prior paragraphs.

129. Regarding Paragraph 129 of Plaintiffs' complaint, Defendants admit that HISDrequested bids. Defendants deny that HISD ever failed to perform under any contract. HISDperformed any contractual obligations, if any. Defendants deny that the attached contract is acomplete and accurate copy.

130. Defendants deny the allegations in Paragraph 13 0 of Plaintiffs' Comp laint.131. Defendants deny the allegations in Paragraph 13 1 of Plaintiffs' Complaint.

IX. CAUSES OF ACTIONCOUNT 6: TORTIOUS INTERFERENCE WITH EXISTING CONTRACT132. Paragraph 132 of Plaintiffs' Complaint does not require an admission or denial.


133. Defendants deny the allegations in Paragraph 13 3 of Plaintiffs' Complaint.134. Defendants deny the allegations in Paragraph 13 4 of Plaintiffs' Complaint.135. Defendants deny the allegations in Paragraph 13 5 of Plaintiffs' Complaint.136. Defendants deny the allegations in Paragraph 13 6 of Plaintiffs' Complaint.

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X . CAUSES OF ACTIONCOUNT 7: TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACT


138. Defendants deny the allegations in Paragraph 13 8 of Plaintiffs' Com plaint.139 . Defendants deny the allegations in Paragraph 13 9 of Plaintiffs' Complaint.140. Defendants deny the allegations in Paragraph 140 of Plaintiffs' Complaint.141. Defendants deny the allegations in Paragraph 141 of Plaintiffs' Complaint.142. Defendants deny the allegations in Paragraph 142 of Plaintiffs' Complaint.

X I. CAUSES OF A CTIONCOUNT 8: DECLARATORY JUDGMENT


144. Defendants deny the allegations in Paragraph 144 of Plaintiffs' Complaint.145. Defendants deny the allegations in Paragraph 145 of Plaintiffs' Complaint.

XII. CAUSES OF ACTIONCOUNT 9: CIVIL CONSPIRACY


147. Defendants deny the allegations in Paragraph 147 of Plaintiffs' Complaint.148. Defendants deny the allegations in Paragraph 148 of Plaintiffs' Complaint.

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149. Defendants deny the allegations in Paragraph 149 of Plaintiffs' Complaint.150. Defendants deny the allegations in Paragraph 15 0 of Plaintiffs' Com plaint.151. Defendants deny the allegations in Paragraph 15 1 of Plaintiffs' Comp laint.

XIV. REQUEST FOR PERMANENT INJUNCTION152. Paragraph 152 of Plaintiffs' Complaint does not require an admission or denial.


153. Defendants deny all allegations in paragraph 153 of the Plaintiffs' Complaint. Tothe extent paragraph 153 of Plaintiffs' Complaint seeks relief against Defendants, an admissionor denial is not required. Nevertheless, Defendants deny that Plaintiffs are entitled to the reliefthey are seeking.

154. Defendants deny the allegations in Paragraph 15 4 of Plaintiffs' Comp laint.155. Defendants deny the allegations in Paragraph 15 5 of Plaintiffs' Complaint.

XV, ATTORNEYS FEES156. Paragraph 156 of Plaintiffs' Complaint does not require an admission or denial.

In any event, Defendants deny that Plaintiffs are entitled to recover and/or receive any of therelief sought in Paragraph 156 of Plaintiffs' Complaint. To the extent Paragraph 156 containsfactual allegations, Defendants deny them .

157. Paragraph 157 of Plaintiffs' Complaint states a legal conclusion to which noanswer is required. To the extent Paragraph 157 contains factual allegations, Defendants denythem.

XVI. JURY DEMAND158. Plaintiffs' request for a jury trial in Paragraph 158 of Plaintiffs' Complaint does

not require an adm ission or denial.

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XVII. PRAYER159 . The final unnumbered paragraph of Plaintiffs' Complaint does not require an

admission or denial. In any event, Defendants deny that Plaintiffs are entitled to recover and/orreceive any of the relief sought in the final unnumbered paragraph of Plaintiffs Complaint. Tothe extent that the final unnumbered paragraph contains factual allegations, Defendants denythem.

XVIII. AFFIRMATIVE DEFENSES160. In asserting the following defenses, Defendants do not admit that the burden of

proving the allegations or denials contained in the defenses is upon the Defendants, but, to thecontrary, assert that the burden of proving the facts relevant to many of the defenses and theburden of proving the inverse of the allegations contained in many of the defenses is upon thePlaintiffs. Moreover, by asserting any defense, the Defendants do not admit any liability, but, tothe contrary, specifically deny any and all allegations of liability in the Plaintiffs' lawsuit.Without admitting liability as to any of the Plaintiffs' causes of action, the Defendants assert thefollowing defenses:

161. Plaintiffs have failed to state a claim up on w hich relief may be granted.162. Plaintiffs' claims are barred, in whole or in part, by limitations.163. Plaintiffs' claims are barred, in whole or in part, by failure of consideration.164. Plaintiffs' claims are barred, in whole or in part, because Plaintiffs' have failed to

satisfy conditions precedent to their alleged causes of action.165. Plaintiffs' claims are barred, in whole or in part, because of the defenses of

estoppel, quasi-estoppel and/or promissory estoppel.166. Plaintiffs' claims are barred, in whole or in part, because of ratification, laches,

waiver, disclaimer, and accord and satisfaction.

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167. Plaintiffs' claims are barred, in whole or in part, by Plaintiffs' prior, materialbreach.

168. All claims brought against Marshall in his official capacity are actually claimsbrought against the governmental entity, i .e. HISD. As such, Marshall is entitled to the sameimmunity and defenses that would be available to HISD as a political subdivision andindependent school district under Texas law, including sovereign and governmental immunity.See H afer v . Me lo, 112 S.Ct. 358, 362 (1991); TEX. CIV. PRAC, REM. CODE 101.051.

169. To the extent Plaintiffs are asserting federal claims against Marshall in hisindividual capacity, Marshall is entitled to qualified immunity from liability on Plaintiffs' claimsthat are based upon alleged violations of their constitutional or statutory rights. Marshall did nottake any actions that he knew or should have known violated the Plaintiffs' clearly-establishedconstitutional or statutory rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see alsoSaucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151 (2001); McClendon v. City of Columbia,305 F.3d 314, 3 22-23 (5th Cir. 2002) (en banc); Williams v. Kaufman County,352 F.3d 99 4, 1002(5th Cir. 2003). Marshall is therefore entitled to qualified immunity, and he is immune fromboth liability and discovery in this action. See Nieto v. San Perlita Ind Sch Dist., 894 F.2d 174(5th Cir. 199 0).

170. Marshall is entitled to common-law official immunity under Texas law. See Cityof Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994); Campbell v. Jones, 264 S.W.2d 425(Tex. 195 4).

171. Marshall asserts that, as a professional school district employee acting within thescope and course of his employment and undertaking actions that involve the exercise of

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judgment or discretion, he is entitled to comm on law, statutory and/or sovereign immu nity. TEX .EDUC. CODE 22.051 (1995 ).

172. Plaintiffs' claims are barred, in whole or in part, because Plaintiffs have failed tomitigate their damages, if any.

173. Plaintiffs' claims are b arred, in whole or in part, because its own acts or om issionscaused the alleged injury and damages complained of in this lawsuit.

174. Plaintiffs' claims against Defendants are barred, in whole or in part, because actsor om issions of third parties have caused or are the cause of Plaintiffs' alleged dam ages, if any.

175. Plaintiffs' claims are barred, in whole or in part, by the affirmative defense ofmistake.

176. Plaintiffs' claims are barred, in whole or in part, because Plaintiffs failed toperform conditions precedent under the subject contract, including but not limited to their failureto abide b y the contract's dispute resolution process.

177. Plaintiffs' claims are barred in whole or in part by truth, the First Amendment,privilege and justification.

178. Plaintiffs' claims are barred, in whole or in part, by the contributing, concurring,intervening, and/or superseding fault of persons or entities other than D efendants.

179. Defendants plead the inferential rebuttal defenses including new and independentcause and sole proximate cause.

180. Plaintiffs' claims are barred, in whole or in part, by unclean hands and/or by inpan delicto.

181. Plaintiffs' claims are barred, in whole or in part, by illegality and/or impropermotive.

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182. Plaintiffs' claims are barred, in whole or in part, by truth, knowledge, and goodfaith.

183. Plaintiffs' claims are barred, in whole or in part, because Defendants were notengaged in a RICO "enterprise."

184. Plaintiffs' claims are barred, in whole or in part, because Plaintiffs' do not have acognizable international tort claim against Defendants.

185 . Plaintiffs' claims are barred, in whole or in part, because Plaintiffs' lack standing.XIX. JURY DEMAND AND PRAYER

186. Defendants assert their rights under the Seventh Amendment to the U.S.Constitution and dem and, in accordance with FED. R. CIV . P. 38, a trial by jury on all issues.

WHEREFORE, PREMISES CONSIDERED, Defendants pray that Plaintiffs' Complaintbe dismissed in its entirety, with prejudice, that Plaintiffs take nothing by their suit, and thatDefendants be discharged. Defendants further pray that the court award Defendants all other andfurther relief, both general and special, at law or in equity, to which Defendants may be justlyentitled.

Respectfully submitted,BRACE W ELL & GIULIANI LLPBy: /s/ Jarvis V. HollingsworthJarvis V. HollingsworthAttorney-in-ChargeState Bar No. 00787708SDT Bar No. 216068

Richard F. W hiteleyState Bar No. 24013744SDT Bar No. 24408David W. M orrisState Bar No. 24046481SDT Bar No. 585 631Melissa A. MihalickState Bar No. 240455 89

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Federal Bar No. 808466711 Louisiana, Suite 23 00Telephone: (713) 221-1563Facsimile: (713) 221-1212ATTORNEY FOR DEFENDANTLAWRENCE MARSHALL

CERTIFICATE OF SERVICEI hereby certify that a true and correct copy of the foregoing document has been

forwarded to counsel of record pursuant to the Federal Rules of Civil Procedure via the Court'selectronic filing service unless the Court record indicates other means of service on the 12th dayof December, 2011; /s/ David W. Morrisarvis V. Ho llingsworth


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Marshall Response 121211