     Case: 16-10105   Document: 00513931580     Page: 1   Date Filed: 03/29/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                        FILED
                                                                    March 29, 2017
                                 No. 16-10105
                                                                     Lyle W. Cayce
                                                                          Clerk
VICKIE COOK, Individually and as Natural Mother to Deanna Cook; N. W.,
a Minor, by and through her Grandparent and Guardian Vickie Cook; A. W.,
a Minor, by and through her Grandparent and Guardian Vickie Cook;
KARLETHA COOK-GUNDY, Individually and as Representative of the
Estate of Deanna Cook, Deceased,

             Plaintiffs – Appellants,
v.

CITY OF DALLAS; TONYITA HOPKINS; KIMBERLEY COLE; JOHNNYE
WAKEFIELD; YAMINAH SHANI MITCHELL; OFFICER JULIE
MENCHACA; OFFICER AMY WILBURN; ANGELIA HEROD-GRAHAM; T-
MOBILE USA, INCORPORATED; METROPCS COMMUNICATIONS,
INCORPORATED; SAMSUNG ELECTRONICS COMPANY, LIMITED;
SAMSUNG TELECOMMUNICATIONS AMERICA L.L.C.,

             Defendants – Appellees.

************************************************************************

VICKIE COOK, Individually and as Natural Mother to Deanna Cook; N. W.,
a Minor, by and through her Grandparent and Guardian Vickie Cook; A. W.,
a Minor, by and through her Grandparent and Guardian Vickie Cook;
KARLETHA COOK-GUNDY, Individually and as Representative of the
Estate of Deanna Cook, Deceased,

           Plaintiffs – Appellants,
v.

T-MOBILE USA, INCORPORATED; METROPCS COMMUNICATIONS,
INCORPORATED, SAMSUNG ELECTRONICS COMPANY, LIMITED;
SAMSUNG TELECOMMUNICATIONS AMERICA L.L.C.,

           Defendants – Appellees.
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                                      No. 16-10105



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-3788
                             USDC No. 3:14-CV-2907


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       After the tragic murder of Deanna Cook, members of Cook’s family
brought various claims against several telecommunications companies,
alleging that the location services technology on Cook’s cellular phone and
network caused a delay in the response to her 9-1-1 call, resulting in her death.
These claims include negligence, gross negligence, strict products liability,
breach of warranty, a violation of the Texas Deceptive Trade Practices Act,
misrepresentation, wrongful death, and a survival action. The district court
dismissed all claims against the telecommunications companies, holding that
the plaintiffs did not adequately plead that the companies caused the plaintiffs’
injuries, and therefore the companies were immune from liability under Texas
law. The district court also transferred the case to another judge, who later
consolidated it with a case brought by the same plaintiffs. The district court
subsequently certified the dismissal of the plaintiffs’ claims as immediately
appealable under Federal Rule of Civil Procedure 54(b). On appeal, the
plaintiffs argue that the district court erred when it dismissed their claims and
abused its discretion when it transferred the case and consolidated it with
another action. We AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 16-10105
                                              I.
       Moments before Deanna Cook was murdered inside her home by an
intruder, she managed to call 9-1-1 for assistance from her cellular phone. 1
Cook’s call was taken by an employee at the call center of the City of Dallas
Police Department’s Communications Section. Cook’s location was provided to
the 9-1-1 call center “within several minutes” of the call. Cook can be heard for
the first seventeen minutes of the recorded call screaming for help and
pleading with her attacker to stop harming her. Nearly fifty minutes after
Cook placed her 9-1-1 call, police officers arrived at Cook’s home. The officers
inspected the outside of Cook’s home and then left without entering the
residence.
       Two days later, Cook’s daughters, mother, and sister went to her home.
They noticed that water was leaking from various places around the house.
The family members went to the rear of the house, where they kicked the patio
door down and entered the residence. Upon entering the bathroom, the family
members discovered Cook’s body, floating in the overflowing bathtub.
       Cook’s estate and relatives (collectively, the Cook plaintiffs) filed a
complaint against the City of Dallas and several city employees, seeking
damages for Cook’s death. Cook v. The City of Dallas, No. 3:12-CV-3788-P
(Cook I). 2 After the Cook plaintiffs filed two amended complaints, the district
court entered a series of orders dismissing a substantial portion of their claims
in Cook I.



       1We accept as true the well-pleaded factual allegations in the plaintiffs’ complaint, as
we must when reviewing a dismissal for failure to state a claim. See Johnson v. Johnson, 385
F.3d 503, 529 (5th Cir. 2004).
       2 In Cook I, the Cook plaintiffs sued under 42 U.S.C. § 1983 and under Texas law,
alleging that Cook died because the City and several of its employees failed to timely respond
to Cook’s 9-1-1 call and did not provide experienced call operators or police officers to
investigate her call.
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                                  No. 16-10105
      Two years after the Cook plaintiffs filed their lawsuit in Cook I, they filed
a third amended complaint, seeking to add as new defendants T-Mobile,
MetroPCS, Samsung Electronics Co., and Samsung Telecommunications
America, LLC (collectively, the Telecommunications defendants). The district
court struck the third amended complaint because the Cook plaintiffs had filed
it without leave and without the defendants’ written consent. The district
court directed the Cook plaintiffs to comply with Federal Rule of Civil
Procedure 15 if they wished to amend their complaint.
      Rather than seeking leave to amend their complaint in Cook I, the Cook
plaintiffs filed an entirely new action. Cook v. T-Mobile USA, Inc., No. 3:14-
CV-2907-M (Cook II). The complaint in Cook II repeated many of the same
allegations the Cook plaintiffs had alleged in Cook I against the City and the
9-1-1 operator and added claims against the Telecommunications defendants.
Specifically, the Cook plaintiffs alleged that the phone and systems
manufactured and operated by the Telecommunications defendants and used
by Cook did not allow Cook’s name and exact location to be instantly
transmitted to a 9-1-1 call taker, a dispatcher, or on-board police patrol cars.
The Cook plaintiffs allege that had this information been more quickly
transmitted, Cook’s life would have been spared. The Cook plaintiffs’ claims
against the Telecommunications defendants included negligence, gross
negligence, strict products liability, breach of warranty, a violation of the Texas
Deceptive Trade Practices Act, misrepresentation, wrongful death, and a
survival action.
      The Telecommunications defendants filed joint motions to transfer Cook
II to the same district court judge who was presiding over Cook I for possible
consolidation. The district court granted the motion to transfer despite the
Cook plaintiffs’ objections. The district court subsequently granted a motion to
dismiss Cook II filed by Samsung America but allowed the Cook plaintiffs leave
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                                 No. 16-10105
to amend their Cook II complaint. After the Cook plaintiffs amended their
complaint, the Telecommunications defendants filed Rule 12(b)(6) motions to
dismiss, which the district court granted with prejudice. Three days after
entering the order dismissing all of the claims against the Telecommunications
defendants, the district court consolidated what remained of Cook II with Cook
I.
      Following the district court’s dismissal of the claims against them, the
Telecommunications defendants jointly filed an unopposed motion under
Federal Rule of Civil Procedure 54(b) to certify as immediately appealable the
district court’s interlocutory order dismissing the Cook plaintiffs’ claims. The
district court granted this motion, ordering that “all claims against the
Telecommunications Defendants [are] certified . . . as final and immediately
appealable.” The Cook plaintiffs timely appealed pursuant to that order.
      This appeal only involves the dismissal of the claims against the
Telecommunications defendants in Cook II.
                                       II.
      We review de novo the district court’s dismissal of the Cook plaintiffs’
claims under Rule 12(b)(6). Castro v. Collecto, Inc., 634 F.3d 779, 783 (5th Cir.
2011). “We may affirm a district court’s Rule 12(b)(6) dismissal on any grounds
raised below and supported by the record.” Raj v. La. State Univ., 714 F.3d
322, 330 (5th Cir. 2013) (quoting Cuvillier v. Taylor, 503 F.3d 397, 401 (5th
Cir. 2007)). We accept as true well-pleaded factual allegations in the complaint
and view the facts in the light most favorable to the plaintiff. Johnson v.
Johnson, 385 F.3d 503, 529 (5th Cir. 2004). “The issue is not whether the
plaintiff[s] will ultimately prevail, but whether [they are] entitled to offer
evidence to support [their] claim[s].” Jones v. Greniger, 188 F.3d 322, 324 (5th
Cir. 1999). A complaint survives a motion to dismiss where the complaint


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                                     No. 16-10105
states a “plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009);
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
        We review the district court’s decision to transfer a case for abuse of
discretion. Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 n.3 (5th
Cir. 1997). Likewise, we review the district court’s decision to consolidate cases
for abuse of discretion. Green v. Polunsky, 229 F.3d 486, 488 (5th Cir. 2000).
                                         III.
        We first address the district court’s dismissal of all of the Cook plaintiffs’
claims against the Telecommunications defendants. The district court found
that     the   Cook     plaintiffs   failed       to   adequately      plead   that    the
Telecommunications defendants’ actions caused Cook’s death and concluded
that the Telecommunications defendants were entitled to immunity under
Texas law. Because we agree the Cook plaintiffs have not adequately alleged
that the Telecommunications defendants’ acts or omissions caused Cook’s
death, we hold that the Telecommunications defendants are entitled to
immunity under Texas law and the dismissal of the Cook plaintiffs’ claims was
proper.
        Under Texas law, wireless service providers and manufacturers are
generally immune from claims arising out of their provision of 9-1-1 services.
Specifically, section 771.053(a) of the Texas Health and Safety Code states that
        [a] service provider of communications service involved in
        providing 9-1-1 service . . . [or] a manufacturer of equipment used
        in providing 9-1-1 service . . . is not liable for any claim, damage,
        or loss arising from the provision of 9-1-1 service unless the act or
        omission proximately causing the claim, damage, or loss
        constitutes gross negligence, recklessness, or intentional
        misconduct.
Tex. Health & Safety Code Ann. § 771.053(a).
        As a threshold matter, the Telecommunications defendants satisfy the
two preconditions for immunity under section 771.053(a): first, they are each
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                                      No. 16-10105
“[a] service provider of communications service involved in providing 9-1-1
service . . . [or] a manufacturer of equipment used in providing 9-1-1 service[;]”
and second, the claims against them “aris[e] from the provision of 9-1-1
service[.]” As for the first precondition, the Cook plaintiffs’ complaint alleges
that Cook called 9-1-1 using her cellular phone which was either manufactured
by or used the communications services of the Telecommunications
defendants. Further, the Cook plaintiffs allege that Cook’s call was
successfully connected to a 9-1-1 call center employee and that Cook’s location
was relayed to the call center. Each of the Cook plaintiffs’ claims is premised
on the allegation that had Cook’s location been available to emergency
responders “immediately” rather than after “several minutes,” Cook’s life
would have been spared. This satisfies the second precondition that the claims
arise from the provision of 9-1-1 services. 3
       Because     section    771.053(a)     applies    to   the    Telecommunications
defendants, the Cook plaintiffs may overcome immunity only by plausibly
alleging that the Telecommunications defendants’ acts or omissions: (1)
“proximately caus[ed]” their injuries; and (2) “constitute[d] gross negligence,
recklessness, or intentional misconduct.” Tex. Health & Safety Code Ann. §
771.053(a). The Cook plaintiffs have failed to adequately allege that the
Telecommunications defendants’ acts or omissions proximately caused their
injuries; therefore, they have failed to overcome the immunity afforded the
Telecommunications defendants by section 771.053(a).



       3 The Telecommunications defendants contend that they are immune under both
section 771.053(a) and section 772.407 of the Texas Health and Safety Code. Section 772.407
provides immunity to suppliers of equipment used in the provision of 9-1-1 services. See Tex.
Health & Safety Code Ann. §772.407. The language of section 772.407 is nearly identical to
the language of section 771.053(a). Because we conclude that all of the Telecommunications
defendants satisfy the preconditions for immunity under section 771.053(a), we need not
address whether they are immune under section 772.407.
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                                 No. 16-10105
       “The components of proximate cause are cause in fact and
foreseeability.” Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).
“The cause-in-fact element is satisfied by proof that (1) the act was a
substantial factor in bringing about the harm at issue, and (2) absent the act
(‘but for’ the act), the harm would not have occurred.” HMC Hotel Props. II Ltd.
P’ship v. Keystone-Texas Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014).
“These elements cannot be established by mere conjecture, guess, or
speculation.” Id.
      The Cook plaintiffs allege that the Telecommunications defendants
failed to implement readily available location tracking technology that would
have allowed the 9-1-1 operators to locate Cook “quicker than the several
minutes it actually took.” They also allege that this location tracking
technology would have caused Cook’s name and exact address to immediately
appear on the onboard computers located in the vehicles of police and medical
personnel located in Cook’s vicinity. They allege that Cook’s call lasted “nearly
17 minutes” and that the responding officers did not arrive, despite dispatch,
until “approximately 50 minutes” later. Further, the Cook plaintiffs plead that
the responding emergency personnel did not enter Cook’s house to investigate
her call. They claim that “Cook’s death would have been prevented if the
emergency medical technicians had been able to utilize readily available
location tracking technology to arrive at Ms. Cook’s home within 5 minutes of
her call.”
      We find the Texas Supreme Court’s recent decision in City of Dallas v.
Sanchez, 494 S.W.3d 722 (Tex. 2016), instructive here. Although Sanchez does
not involve immunity under section 771.053(a) of the Texas Health and Safety
Code, it does involve a defective 9-1-1 system and whether that defective
system was the proximate cause of the plaintiffs’ son’s death. 494 S.W.3d at
724. In Sanchez, City of Dallas 9-1-1 dispatchers received two 9-1-1 calls within
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                                  No. 16-10105
ten minutes of each other, both originating from the same apartment complex
and both requesting assistance for a drug-overdose victim. Id. at 725.
Coincidentally, the calls were placed from different phone numbers and
concerned different victims. Id. During the second call, the dispatcher acquired
the necessary information from the caller and informed the caller that the
emergency responders were en route. Id.            The call was prematurely
disconnected. Id. After emergency responders arrived at the apartment
complex, “they erroneously concluded that the two 9-1-1 calls were redundant
and that a single individual was the subject of both calls.” Id. Consequently,
the emergency responders never came to the second caller’s aid and he died six
hours later. Id. The deceased victim’s parents sued the City of Dallas for
negligence, alleging that the City’s phone system malfunctioned, resulting in
their son’s death. Id.
      The Texas Supreme Court discussed whether the Texas Tort Claims
Act’s waiver of governmental immunity applied to the City of Dallas. Id. at
726. A central issue regarding the application of that immunity statute was
“whether the phone’s [defective] condition was a proximate cause of [the
victim’s] death.” Id. (emphasis added). The court held that “the alleged
telephone-system malfunction was not a proximate cause of [the victim’s]
death.” Id. The court reasoned that “[a]lthough disconnection of the telephone
call may have contributed to circumstances that delayed potentially life-saving
assistance, the malfunction was too attenuated from the cause of [the victim’s]
death—a drug overdose—to be a proximate cause.” Id. at 727. The court
further explained that “[t]he alleged defect did not actually cause [the victim’s]
death nor was his death hastened or exacerbated by a telephone malfunction.”
Id. (emphasis added). “The malfunction was one of a series of factors that
contributed to [the victim] not receiving timely medical assistance.” Id. The


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                                       No. 16-10105
court explained that the actual causes of the victim’s death were “drugs, the
passage of time, and misinterpretation of information.” Id.
       The proximate cause inquiry in this case fits squarely under the Texas
Supreme Court’s analysis in Sanchez. The Cook plaintiffs have not sufficiently
pleaded that the allegedly defective telecommunications technology and
service was a proximate cause of Cook’s tragic demise. The Cook plaintiffs’
contention that Cook would not have died but for the fact that her location was
provided in several minutes rather than immediately is not plausible on the
facts alleged because the Cook plaintiffs have not plausibly alleged that any of
the intervening parties would have acted differently. 4 For example, they have
not plausibly alleged that the call center operator, who received Cook’s location
after “several minutes,” would have dispatched nearby emergency personnel
sooner so that they arrived while Cook was alive, rather than arriving after
fifty minutes. Further, the Cook plaintiffs alleged that even after emergency
personnel arrived at Cook’s residence, Cook’s “call was not treated as serious.”
They have failed to allege that the emergency personnel would have reacted
differently had they received Cook’s location sooner.
       Even if the brief delay in relaying Cook’s location “contributed to
circumstances that delayed potentially life-saving assistance, the [delay] was
too attenuated from the cause of [Cook’s] death . . . to be a proximate cause.”



       4  The Cook plaintiffs contend that if Cook’s location had been provided sooner, then:
(1) the 9-1-1 call taker and dispatcher would have handled Cook’s calls with greater diligence;
(2) other first responders who might have received Cook’s address on their on-board
computers might have been able to attend to Cook; (3) the police would have arrived within
six minutes, instead of fifty minutes; and (4) the responders would have heard Cook’s
screams, entered Cook’s residence, and found Cook alive. These allegations are insufficient
to defeat a motion to dismiss as they rely on conjecture and speculation. Twombly, 550 U.S.
at 555 (a plaintiff must “raise a right to relief above the speculative level”); Haargaard v.
Harris Cty., 35 F. App’x 388, at *2 (5th Cir. April 11, 2002) (“The plaintiff cannot create a
fact question about cause in fact through ‘mere conjecture, guess, or speculation.’” (quoting
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995))).
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                                     No. 16-10105
Sanchez, 494 S.W.3d at 727. Like the telephone-system malfunction in
Sanchez, the allegedly deficient telecommunications services and technology
in the instant case “did not actually cause [Cook’s] death nor was [her] death
hastened or exacerbated by” the alleged deficiencies. See id. Accordingly, we
conclude that the Cook plaintiffs have not sufficiently pleaded that the
Telecommunications defendants’ technology and services was a proximate
cause of Cook’s death. Therefore, the Telecommunications defendants are
immune from all of the Cook plaintiffs’ claims under section 771.053(a) and the
district court’s dismissal of the claims was appropriate. 5
                                           IV.
      We next address the Cook plaintiffs’ contention that the district court
abused its discretion when it transferred Cook II and subsequently
consolidated Cook II with Cook I. As a threshold matter, we must assess
whether we have jurisdiction to review the district court’s transfer and
consolidation orders at this stage of the litigation. In cases involving an
interlocutory appeal certified by a district court under Federal Rule of Civil
Procedure 54(b), we lack jurisdiction over rulings not referenced by the district
court’s certification. United Indus., Inc. v. Eimco Process Equip. Co., 61 F.3d
445, 448 (5th Cir. 1995) (citing United States v. Stanley, 483 U.S. 669, 677
(1987)).
      In this case, the district court’s Rule 54(b) was limited to the order
dismissing the Cook plaintiffs’ claims against the Telecommunications


      5 In order to overcome the Telecommunications defendants’ immunity under section
771.053(a), the Cook plaintiffs must allege both that the Telecommunications defendants’
acts or omissions: (1) “proximately caus[ed]” their injuries; and (2) “constitute[d] gross
negligence, recklessness, or intentional misconduct.” Tex. Health & Safety Code Ann.
§ 771.053(a). Because the Cook plaintiffs have failed to allege the proximate cause element
of overcoming immunity, we need not address whether the Cook plaintiffs sufficiently
pleaded that the Telecommunications defendants’ acts or omissions constituted gross
negligence, recklessness, or intentional misconduct.
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                                       No. 16-10105
defendants (“the September 22 Order”). The district court’s Rule 54(b)
certification order stated:
       It is, therefore, ORDERED that the Court’s September 22, 2015
       Order dismissing all claims against the Telecommunications
       Defendants is certified under Rule 54(b) as final and immediately
       appealable.
The district court referenced neither the order transferring Cook II nor the
order consolidating Cook II with Cook I in its Rule 54(b) certification order.
Therefore, we dismiss the Cook plaintiffs’ appeal for lack of appellate
jurisdiction as it pertains to the district court’s transfer and consolidation
orders. See United Indus., 61 F.3d at 448.
       The Cook plaintiffs urge us to exercise our pendent jurisdiction over
these orders. See Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996) (“In the
interest of judicial economy, this court may exercise its discretion to consider
under [pendent] appellate jurisdiction claims that are closely related to the
issue properly before [the court].”); Thornton v. Gen. Motors Corp., 136 F.3d
450, 453 (5th Cir. 1998) (pendent jurisdiction may be “proper in rare and
unique circumstances where a final appealable order is ‘inextricably
intertwined’ with an unappealable order or where review of the unappealable
order is necessary to ensure meaningful review of the appealable order”
(emphasis added)). We decline to exercise pendent jurisdiction in this case.
       However, even assuming arguendo that we were to exercise such
discretionary pendent jurisdiction, the district court likely did not abuse its
discretion when it transferred Cook II to a different district court judge and
then consolidated Cook II with Cook I. The parties and claims in the two cases
were sufficiently similar 6 so as to justify the transfer from a judge who was


       6In both cases, the Cook plaintiffs filed claims seeking damages based on Cook’s
emergency 9-1-1 call for help. While the parties in the two cases did not entirely overlap,
there were several common parties, including all of the Cook plaintiffs and the City of Dallas.
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                                        No. 16-10105
completely unfamiliar with the parties of and claims at issue in Cook II to a
judge who had already been involved with similar parties and claims for nearly
two years in Cook I. See United States v. Stone, 411 F.2d 597, 598–99 (5th Cir.
1969) (“District Judges have the inherent power to transfer cases from one to
another for the expeditious administration of justice.”). Further, Cook I and
Cook II involved common questions of both law and fact 7 such that the district
court did not abuse its discretion when it consolidated the cases. See Frazier v.
Garrison I.S.D., 980 F.2d 1514, 1531 (5th Cir. 1993) (“Under [Federal Rule of
Civil Procedure 42(a)], a trial court may consolidate multiple actions if the
actions involve common questions of law or fact.”). Accordingly, even if we were
to exercise our pendent jurisdiction, the Cook plaintiff’s challenge to the
district court’s transfer and consolidation orders would not be successful.
                                               V.
       Accordingly, we AFFIRM the district court’s dismissal of all of the Cook
plaintiffs’ claims against the Telecommunications defendants. Further,
because we lack appellate jurisdiction over the Cook plaintiffs’ appeal as it
pertains to the district court’s transfer and consolidation orders, we DISMISS
that portion of the Cook plaintiffs’ appeal.




See Save Power Ltd., 121 F.3d at 951 (“Complete identity of parties is not required for
dismissal or transfer of a case filed subsequently to a substantially related action.”).
       7  The common issues of fact include the sequence of events that led to Cook’s 9-1-1
call; the relevant technical limitations on cellular technology and how those limitations
affected the ability of the City of Dallas’s 9-1-1 call center to handle Cook’s call; and relevant
expert testimony on the interplay between cellular technology and the City’s technology. The
common issues of law include each party’s responsibilities and duties to Cook and the Cook
plaintiffs as well as immunity issues among the City of Dallas, its employees, and the
Telecommunications defendants. Notably, the Cook plaintiffs apparently thought that there
were sufficient common issues of law and fact so as to attempt to file their third amended
complaint in Cook I, which included their claims against the Telecommunications
defendants, before it was stricken by the district court and they filed it as a new action, Cook
II.
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