Garcia v. Deno, 082520 TXNDC, C. A. 4:20-cv-00634-P-BP

Docket NºCivil Action 4:20-cv-00634-P-BP
Party NameMICHAEL GARCIA, Plaintiff, v. MARK DENO, Defendant.
Case DateAugust 25, 2020
CourtUnited States District Courts, 5th Circuit, Northern District of Texas



MARK DENO, Defendant.

Civil Action No. 4:20-cv-00634-P-BP

United States District Court, N.D. Texas, Fort Worth Division

August 25, 2020



Before the Court is Defendant's Motion to Dismiss and Brief in Support filed on June 24, 2020. ECF No. 5. As of the date of this Findings, Conclusions, and Recommendation, Plaintiff has not filed a response to Defendant's Motion. Based upon a full review of the relevant pleadings on file and the applicable legal authorities, the undersigned RECOMMENDS that United States District Judge Mark T. Pittman GRANT Defendant's Motion to Dismiss (ECF No. 5) and DISMISS Plaintiff's claims without prejudice.


On June 2, 2020, Plaintiff Michael Garcia (“Garcia”) brought this action against Defendant Mark Deno (“Deno”) in the Justice Court No. 1 of Tarrant County, Texas for violating 11 U.S.C. § 524 by attempting to collect a debt that had been discharged in bankruptcy. ECF No. 1-3 at 3. Garcia sought damages in the amount of $10, 000.00 and an order removing his account from the “major credit bureaus” and “collection agencies, ” and an end to “aggressive collections.” Id. Garcia alleges that Deno “continues to aggressively try to collect on accounts that were discharged.” Id. On June 17, 2020, Deno timely removed the case to this Court. ECF No. 1. Thereafter, he filed a Motion to Dismiss, asserting that Garcia's claim should be dismissed due to a lack of subject matter jurisdiction, or in the alternative, for Garcia's failure to state a claim. ECF No. 5 at 4-8.


A. Federal Rule of Civil Procedure 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint based on lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Because “[f]ederal courts are courts of limited jurisdiction[, t]hey possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). If a Court lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). In determining whether subject matter jurisdiction exists, a court “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” CleanCOALition v. TXU Power, 536 F.3d 469, 473 (5th Cir. 2008) (quoting

Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).

“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). This “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id. Dismissal for lack of subject matter jurisdiction “is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Id. “The district court may dismiss for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Lowe v. ViewPoint Bank, 972 F.Supp.2d 947, 953 (N.D. Tex. 2013) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). “A motion to dismiss based on the complaint alone presents a ‘facial attack' that requires the court to merely decide whether the allegations in the complaint, taken as true, sufficiently state a basis for subject matter jurisdiction.” Id. (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). “If sufficient, those allegations alone provide jurisdiction.” Paterson, 644 F.2d at 523. “When evidence is presented with the motion to dismiss, the attack is ‘factual' and ‘no presumptive truthfulness attaches to [the] plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'” Lowe, 972 F.Supp.2d at 953 (quoting Williamson, 645 F.2d at 413).

B. Federal Rule of Civil Procedure 12(b)(6)

Rule 12(b)(6) permits dismissal of a complaint for failure to state a claim upon which relief can be granted. The Rules require that each complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a). A complaint must include sufficient factual...

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