Lowe v. Viewpoint Bank

• Citation: 972 F.Supp.2d 947
• Decision Date: 18 September 2013
• Docket Number: Civil Action No. 3:12–CV–1725–G(BH).
• Parties: Sherri R. LOWE, Plaintiff, v. VIEWPOINT BANK, Defendant.
• Court: U.S. District Court — Northern District of Texas

972 F.Supp.2d 947

Sherri R. LOWE, Plaintiff,

v.VIEWPOINT BANK, Defendant.

Civil Action No. 3:12–CV–1725–G(BH).

United States District Court,

N.D. Texas,

Dallas Division.

Sept. 18, 2013.

Sherri R. Lowe, Dallas, TX, pro se.

S. Cass Weiland, Constance Rose Ariagno, Robert A. Hawkins, Patton Boggs LLP, Dallas, TX, for Defendant.

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

A. JOE FISH, Senior District Judge.

After reviewing all relevant matters of record in this case, including the findings, conclusions, and recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the undersigned district judge is of the opinion that the findings and conclusions of the magistrate judge are correct and they are accepted as the findings and conclusions of the court.

Accordingly, defendant ViewPoint Bank's second renewed motion to dismiss for lack of subject matter jurisdiction, filed March 15, 2013 (docket entry 39), plaintiff's motion for directed verdict, filed December 13, 2012 (docket entry 27), and plaintiff's motion for summary judgment, filed April 5, 2013 (docket entry 42), are DENIED.

SO ORDERED.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, United States Magistrate Judge.

Pursuant to Special Order No. 3–251, this case has been automatically referred for pretrial management. Before the Court are Defendant ViewPoint Bank's Second Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed March 15, 2013 (doc. 39), Plaintiff's Motion for Directed Verdict, filed December 13, 2012 (doc. 27), which has been liberally construed as a motion for summary judgment, and Plaintiff's Motion for Summary Judgment,¹ filed April 5, 2013 (doc. 42). Based on the relevant filings, evidence, and applicable law, the motions should be DENIED.

I. BACKGROUND

On June 4, 2012, Sherri R. Lowe (Plaintiff) filed this pro se action against ViewPoint Bank (Defendant) arising from its closure of her checking accounts. ( See Orig. Compl. (doc. 3) at 1.) ² In her amended complaint, she asserts federal claims for violation of her due process right under the Fifth Amendment and 42 U.S.C. § 1983; invidious discrimination under Title II of the Civil Rights Act(CRA) of 1964; and violations of several federal criminal statutes, the Right to Financial Privacy Act (RFPA), and the Gramm–Leach–Bailey Act (GLBA). ( See Am. Compl. (doc. 24) at 3–9.) She also asserts state law claims for breach of the duty of good faith and breach of “ordinary care” under the Texas Uniform Commercial Code (UCC), negligence, breach of contract, and defamation and slander. ( See id.)

Plaintiff claims to be the owner of a consulting business called “Lowe's Consulting Services, Inc.” (LCS). (doc. 24 at 1–2.) On May 15, 2010, she opened a checking account with Defendant on behalf of LCS and deposited a $1,500 check from one of LCS's clients. ( Id. at 9, 28–31.) On May 20, 2010, Defendant closed both her business and personal checking accounts. ( Id. at 8–10.) Plaintiff later filed a report with the Addison Police Department (APD). ( Id. at 23.) She told the investigating officer that she “was missing $112” as a result of Defendant's actions. ( Id.) When the officer inquired with the bank, the bank manager responded that Defendant “refused to do business” with Plaintiff and would mail her a certified check “as per Bank procedure.” ( Id.)

On December 13, 2012, Plaintiff filed a motion for directed verdict that has been liberally construed as a motion for summary judgment. ( See docs. 27, 28.) Defendantlater filed a renewed ³ motion to dismiss for lack of subject matter jurisdiction. (doc. 39.) Together with her response to Defendant's motion to dismiss, Plaintiff filed a motion for summary judgment. ( See doc. 42 at 12–20.) The motions are now ripe for recommendation.

II. RULE 12(b)(1) MOTION

Defendant seeks dismissal under Rule 12(b)(1), contending that the Court lacks subject-matter jurisdiction over this case. (doc. 39.)

A motion to dismiss under Rule 12(b)(1) challenges a court's subject matter jurisdiction. SeeFed.R.Civ.P. 12(b)(1). Such a motion “may be raised by a party, or a by a court on its own initiative at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The Court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. SeeFed.R.Civ.P. 12(h)(3).

A. Rule 12(b)(1) Standard

“Federal courts are courts of limited jurisdiction. They 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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). They “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).

“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. When the court dismisses for lack of subject matter jurisdiction, that dismissal “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. 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. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). “If sufficient, those allegations alone provide jurisdiction.” Id. Facial attacks are usually made early in the proceedings. 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.” Williamson, 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).

Here, Defendant does not support its Rule 12(b)(1) motion with evidence. It presents a facial attack that does not require resolution of matters outside the pleadings. See Ramming, 281 F.3d at 161;Williamson, 645 F.2d at 412–13.

B. Federal Question Jurisdiction

Defendant argues that federal question jurisdiction is lacking because “[t]he federal statutes cited by Plaintiff do not provide a private cause of action and none can be inferred.” (doc. 39 at 2.) She asserts claims for violations of her due process rights under the Fifth Amendment and 42 U.S.C. § 1983; invidious discrimination under Title II; and violations of criminal statutes 18 U.S.C. 493, 494, 1005, and 1006, the RFPA, and the GLBA. ( See doc. 24 at 3–9.)

A court has federal question jurisdiction when the plaintiff's claim arises under the Constitution, laws, or treaties of the United States. See28 U.S.C. § 1331 (2005). A claim arises under federal law when federal law creates the cause of action, or when a state law claim raises a federal issue. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005); Singh v. Duane Morris LLP, 538 F.3d 334, 338 (5th Cir.2008). The party invoking federal question jurisdiction bears the burden of establishing its existence. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103–04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); accord Ramming, 281 F.3d at 161.

When a private citizen relies on a federal statute as a basis for federal question jurisdiction, that statute must provide a private cause of action, or else a federal court will not have subject matter jurisdiction to hear the dispute. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 817, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). “[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (quotation omitted). Instead, the statute must either explicitly create a right of action or implicitly contain one. Id. at 575, 99 S.Ct. 2479. Without congressional intent to create a private cause of action, one does not exist, and courts may not create one, no matter how desirable or compatible with the statute. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). The question of whether Congress intended to create a private right of action is “definitively answered in the negative where a statute by its terms grants no private rights to any identifiable class.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283–84, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (internal quotations omitted).

Federal courts have determined that 18 U.S.C. §§ 493, 656, 1005, and 1006, as well as the GLBA, by their terms, do not create a private right of action. See Fed. Nat. Mortgage Ass'n v. Smith, No. 3:13–CV–1091–K–BN, 2013 WL 1759521, at *5 n. 1 (N.D.Tex. Apr. 5, 2013), rec. adopted,...