Gonzalez v. Bank of America Ins. Servs. Inc.
| Decision Date | 12 December 2011 |
| Docket Number | No. 11-20174,11-20174 |
| Parties | JORGE GONZALEZ, Individually and on Behalf of All Other Similarly Situated, Plaintiff-Appellant v. BANK OF AMERICA INSURANCE SERVICES, INCORPORATED; BA INSURANCE SERVICES, INCORPORATED; INTERSECTIONS, INCORPORATED; INTERSECTIONS INSURANCE SERVICES, INCORPORATED; LOEB HOLDING, CORPORATION; GLOBAL CONTACT SERVICES, L.L.C.; AMERICAN INTERNATIONAL GROUP INCORPORATED; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA; BANK OF AMERICA, N.A., Defendants-Appellees |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court
for the Southern District of Texas
Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
*
In this putative class-action, Plaintiff-Appellant Jorge Gonzalez ("Gonzalez") appeals the district court's dismissal of the various state and federalclaims that he brings against Defendants-Appellees Bank of America Insurance Services, Inc., BA Insurance Services, Inc., Intersections, Inc. ("Intersections"), Intersections Insurance Services, Inc. ("Intersections Insurance"), Loeb Holding, Corp. ("Loeb Holding" or "Loeb"), Global Contact Services, L.L.C. ("Global"), American International Group Inc. ("AIG"), National Union Fire Insurance Company of Pittsburgh, Pennsylvania ("National Union"), and Bank of America, N.A. ("Bank of America"). We AFFIRM the judgment, except that we modify the dismissal to be without prejudice as to Defendant-Appellee Loeb Holding.
Plaintiff-Appellant Gonzalez is a Mexican immigrant who opened an account at Bank of America. He brings this putative class action alleging that Defendants-Appellees are engaged in a wide-reaching scheme to illegally sell inferior insurance products to Bank of America customers.
In his amended complaint, Gonzalez generally alleges that Bank of America identifies lower-income Spanish-speaking customers as potential targets, and that Bank of America then conveys information about these customers to Intersections or Intersections Insurance. Gonzalez claims that sharing this information violates the deposit agreement that customers sign with Bank of America when opening an account. Specifically, Gonzalez states that it violates Bank of America's customer Privacy Policy, which he alleges was incorporated into the deposit agreement by reference.
Gonzalez further alleges that once Intersections acquires customer information from Bank of America, it hires a telemarketing company, often Global, to contact these individuals to offer them death and disability insurance. Gonzalez states that these telemarketers sometimes use misleading sales techniques, such as misrepresenting the premium and coverage amounts, the availability of coverage, acting as though they were affiliated with Bank of America, and enrolling individuals despite only receiving a request for moreinformation. According to Gonzalez, the issued insurance policies are often underwritten by AIG or National Union. Gonzalez alleges that withdrawals for the payment of premiums are made electronically from the consumers' bank accounts with Bank of America, usually by a company called "Smart Step." Gonzalez also claims that the insurance policies are inferior and overpriced. As a result of these business practices, Gonzalez alleges that he and other potential class members have been damaged by the amount of money that was withdrawn from their bank accounts, or by the amount the premiums exceeded the actual value of the insurance.
Although providing a litany of allegations about the general business practices of the various Defendants, Gonzalez includes almost no allegations about his own interactions with the Defendant companies, or about actual actions taken against him. The only personal allegations made by Gonzalez are that he opened a bank account at Bank of America on an undisclosed date, that he was contacted by a telemarketer who persuaded him to purchase insurance, and that withdrawals for premiums were made from his account.
In his amended complaint, Gonzalez brings claims for: (1) breach of contract against Bank of America; (2) breach of fiduciary duty against Bank of America; (3) common law fraud against all of the Defendants-Appellees; (4) unjust enrichment against all of the Defendants-Appellees; and (5) racketeering under Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), against all of the Defendants-Appellees. As to the RICO claim, Gonzalez alleges that Defendants-Appellees committed various acts of fraud in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, the Telemarketers and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. § 6101 et seq., and the Access Devices Act, 18 U.S.C. § 1029.1
The district court granted Defendants-Appellees' motions to dismiss, finding: (1) that Gonzalez lacked standing to sue because he failed to allege any personal injury; (2) that Gonzalez failed to make a prima facie case of personal jurisdiction over Loeb Holding; and, on the merits, (3) that Gonzalez failed to state a claim because he did not make any individual allegations and because the conduct alleged to have been taken against him was not actionable.
The district court entered judgment on February 22, 2011, dismissing the amended complaint with prejudice.2 The following day, Gonzalez filed a motion for leave to file a second amended complaint. Prior to the district court ruling on that motion, Gonzalez filed a notice of appeal, appealing the dismissal of his amended complaint, as well as the district court's "implicit denial" of his motion for leave to amend. The next day, on March 11, the district court requested that Gonzalez provide additional information about the date on which his motion to amend was served on Defendants-Appellees. Rather than supply this information, Gonzalez filed an objection to the order, indicating in his objection that he no longer wanted the district court to rule on his motion to amend. The district court then placed a notice on the docket, stating that it understood Gonzalez's objection to be a withdrawal of his motion. In response, Gonzalez filed another similar objection, stating that the district court no longer hadjurisdiction over this suit. Because of Gonzalez's objections, no formal ruling was ever made on his motion to amend.
This court reviews de novo a district court's grant of a motion to dismiss under Rule 12(b)(6). Ballard v. Wall, 413 F.3d 510, 514-15 (5th Cir. 2005). We accept "all well-pleaded facts as true and view[] those facts in the light most favorable to the plaintiff." Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While complaints generally need to contain only a short and plain statement of the cause of action, allegations of fraud must "state with particularity the circumstances constituting fraud . . . ." Fed. R. Civ. P. 9(b). Under Rule 9(b), a plaintiff must include the "time, place and contents of the false representations, as well as the identity of the person making the misrepresentation and what [that person] obtained thereby." U.S. ex rel. Russell v. Epic Healthcare Mgmt. Grp., 193 F.3d 304, 308 (5th Cir. 1999) (quotation and internal citations omitted) (alteration in original).3 We also review a district court's decision to dismiss for lack of standing or personal jurisdiction de novo. Ordonez Orosco v. Napolitano, 598 F.3d 222, 225 (5th Cir. 2010); Gardemal v. Westin Hotel Co., 186 F.3d 588, 592 (5th Cir. 1999).
A district court's denial of a motion for leave to amend a pleading or a denial of a motion to amend a judgment is reviewed for abuse of discretion. RioGrande Royalty Co., Inc. v. Energy Transfer Partners, 620 F.3d 465, 468 (5th Cir. 2010); Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003).
As a preliminary matter, we first consider the district court's holding that Gonzalez failed to make a prima facie case of personal jurisdiction over Loeb Holding. Guidry v. U.S. Tobacco Co., 188 F.3d 619, 623 n.2 (5th Cir. 1999) ().4 A plaintiff bears the burden of proving the district court's personal jurisdiction, but relevant factual disputes should be resolved in the plaintiff's favor. Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002). At this stage, a plaintiff need only plead a prima facie case of personal jurisdiction. Felch v. Transportes Lar-Mex S.A. DE CV, 92 F.3d 320, 325 (5th Cir. 1996). The only argument that Gonzalez makes to support personal jurisdiction over Loeb Holding is an alter ego theory, in which he claims that Loeb controls the operations of Intersections because Loeb is an investor in Intersections.5
Under the federal rules, except where a federal statute provides for more expansive personal jurisdiction, "the personal jurisdiction of a federal district court is coterminous with that of a court of general jurisdiction of the state inwhich the district court sits." Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 418 (5th Cir. 2001).6 Here, the Texas long-arm statute extends jurisdiction to the fullest extent allowed by the Due Process Clause of the Fourteenth Amendment. Stroman Realty, Inc. v. Antt, 528 F.3d 382, 385 (5th Cir. 2008); Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994). Thus, we only need determine whether exercising jurisdiction over Loeb Holding would offend due process. Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 214 (5th Cir. 2000). Due process requirements are met when the defendant has certain minimum contacts with the forum such that the maintenance of the suit does not offend...
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