Lowe v. Viewpoint Bank
| Decision Date | 22 August 2014 |
| Docket Number | No. 3:12-CV-1725-G-BH,3:12-CV-1725-G-BH |
| Parties | SHERRI R. LOWE, Plaintiff, v. VIEWPOINT BANK, Defendant. |
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas |
Pursuant to Special Order No. 3-251, this case has been automatically referred for pretrial management. Before the Court are Plaintiff's Motion for Leave to File Third Amended Complaint, filed September 27, 2013 (doc. 59), Defendant ViewPoint Bank's Motion to Dismiss for Failure to State a Claim, or, in the Alternative, for Summary Judgment,1 filed December 8, 2013 (doc. 63), and Plaintiff Sherri R. Lowe [sic] Motion for Summary Judgment for All Claims Against Defendant Viewpoint Bank, filed January 3, 2014 (doc. 68). Based on the relevant filings, evidence, and applicable law, the motion for leave to file a third amended complaint is DENIED. Defendant's motion to dismiss under Rule 12(b)(6) should be GRANTED, and its motion for summary judgment should be GRANTED in part and DENIED in part. Plaintiff's motion for summary judgment should be DENIED.
Sherri R. Lowe (Plaintiff) is the owner of a consulting business called "Lowe's Consulting Services, Inc." (LCS). (Doc. 38 at 1-2.) On May 15, 2010, she opened a checking account withViewPoint Bank (Defendant) on behalf of LCS and deposited a $1,500 check from one of its clients. (Id. at 8, 28-31.) Defendant subsequently closed both her business and personal checking accounts due to alleged fraudulent activity. (Id. at 1.) One of Defendant's managers explained to Plaintiff that upon investigation, her business was found to not be located at the address she had provided, and that the check she had deposited was fraudulent. (Id.) Plaintiff later filed a report with the Addison Police Department. (Id. at 22.) 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 June 4, 2012, Plaintiff filed this pro se action against Defendant. (See doc. 3 at 1.)2 In her second amended complaint, she asserts federal claims for violations of her Fifth Amendment due process rights under 42 U.S.C. § 1983, several federal criminal statutes, the Right to Financial Privacy Act (RFPA), and the Gramm-Leach-Bailey Act (GLBA), and for invidious discrimination under Title II of the Civil Rights Act (CRA) of 1964. (See doc. 38 at 2-8.) She also asserts state law claims for breach of the duty of good faith, breach of "ordinary care" under the Texas Uniform Commercial Code (UCC), negligence, defamation, slander, and breach of contract. (See id.)
On September 27, 2013, Plaintiff moved for leave to file a third amended complaint. (Doc. 59.) On December 9, 2013, Defendant moved to dismiss some of her claims for failure to state a claim and for summary judgment on the remaining claims. (Doc. 63.) On January 3, 2014, Plaintifffiled a cross-motion for summary judgment.3 (See doc. 68). The motions are now ripe for recommendation.
Plaintiff seeks leave of court to file her third amended complaint. (Doc. 59.) Defendant opposes because the changes Plaintiff seek would be meaningless based on the denial of her earlier motion for summary judgment. (Doc. 61 at 2.)4
Rule 15(a) of the Federal Rules of Civil Procedure evinces a bias in favor of amendment and requires that leave be granted "freely." Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir. 1982). A court's discretion to grant leave is severely limited by the bias of Rule 15(a) favoring amendment. Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981). Leave to amend should not be denied unless there is a substantial reason to do so. Jacobsen v. Osbourne, 133 F.3d 315, 318 (5th Cir. 1998) (emphasis added) (internal quotation marks omitted). There is a substantial reason to deny leave if the proposed amendment would cause undue delay or prejudice to the non-movant, if it is motivated by bad faith or dilatory motives, if there have been repeated failures to cure deficiencies with prior amendment, or if the amendment is futile. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Martin's Herend Imports, Inc. v. Diamond & Gem Trading, 195 F.3d 765, 770 (5th Cir. 1999); Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993). Allowing a plaintiff's leave to amend would be futile if such amended complaint "could not survive a Fed. R. Civ. P. 12(b)(6) motion[.]" Briggs v. Miss., 331 F.2d 499,508 (5th Cir. 2003); see Rio Grande Royalty Co., Inc. v. Energy Transfer Partners, L.P., 620 F.3d 465, 469 (5th Cir. 2010) (). In such situations, courts have discretion to deny the plaintiff leave to amend. See Ackerson v. Bean Dredging, LLC, 589 F.3d 196, 208 (5th Cir. 2009) ()
Plaintiff's proposed third amended complaint makes the following changes to the second amended complaint: (1) under jurisdiction and venue, she changes 12 U.S.C. § 3416 to § 3417 and adds 42 U.S.C. § 2000a et seq and 18 U.S.C. §§ 493, 1006, (doc. 59-1 at 2); and (2) under invidious discrimination claim, she changes 42 U.S.C. § 2000e et seq to § 2000a et seq, (id. at 8). Plaintiff previously cited 12 U.S.C. § 3401 et seq to cover all relevant statutes under the Financial Privacy Act, making the change from 12 U.S.C. § 3416 to § 3417 unnecessary. The Court has already found that §§ 493, 1005, and 1006 do not create a private right of action. (Doc. 56 at 5-6.) It also liberally construed Plaintiff's invidious discrimination claim as involving the "Public Accommodation" section of Title II, 42 U.S.C. § 2000a, and it concluded that Plaintiff could not recover against Defendant that section as a matter of law because a bank was not a place of public accommodation. (Id. at 11-12 n. 10.) Because it has already been determined that Plaintiff fails to state a claim, amendment of those claims would be futile, and her proposed third amended complaint will "not survive a Fed. R. Civ. P. 12(b)(6) motion[.]"5 Briggs, 331 F.2d at 508; see Ackerson, 589 F.3d at 208. Plaintiff's motion for leave to file a third amended complaint is therefore DENIED.
In response to Defendant's motions to dismiss and for summary judgment, Plaintiff asserts that Defendant failed to "state the relief sought and grounds for the relief with 'particularity.'" (Doc. 67 at 1-2, ##1, 2, 7.) She also objects to its exhibits because the declaration of its branch manager was not sworn, and not all exhibits were attached to its motion. (Id. at 2, ##4, 5.)
Plaintiff argues that Defendant failed to meet the Fed. R. Civ. P. 7(b)(1)'s requirements. (Id. at 1-2, ##1, 2, 7.)6 It requires that parties filing a motion must "state with particularity the grounds for seeking the order[,] and . . . state the relief sought." Fed. R. Civ. P. 7(b)(1)(B)-(C). Here, Defendant's motion lacks detailed arguments because its arguments are contained in its brief as required by the local rule. See N.D. Tex. Local R. § 7.1(d), (h). The brief lays out what relief it seeks, i.e., dismissal or summary judgment, and cites case law. (See generally doc. 64.) Plaintiff's Rule 7(b) objection is OVERRULED.
Plaintiff objects to Brannon Spinden's declaration because it is not sworn. (Doc. 67 at 2.) An affidavit is defined as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by such officer under his seal of office. " Blanco, Inc. v. Porras, 897 F.2d 788, 792 (5th Cir.1990) (emphasis original); see also Wavefront Tech. Solutions, Inc. v. Morton, No. H-11-383, 2012 WL 2846868, at *5 , adopted by 2012 WL 2842269 (July 10, 2012). Under 28 U.S.C. § 1746, all matters that are permitted to be supported, evidenced, established or proven by affidavit"may, with like force and effect, be supported, evidenced, established, or proved by [an] unsworn declaration" as long as the affiant subscribes to the statement under penalty of perjury. 28 U.S.C. § 1746 Attorneys and pro se litigants alike must strictly comply with the requirement of sworn statements, and courts should require correction of any deficiencies in supporting papers that they intend to rely on. See Gordon v. Watson, 622 F.2d 120, 123 (1980) (per curiam); accord Brady v. Blue Cross and Blue Shield of Texas, Inc., 767 F.Supp. 131, 135 (N.D.Tex.1991). An unsworn declaration may substitute for an affiant's oath, however, if it is made "under penalty of perjury" and is "verified as true and correct." See Nissho-Iwai American Corp., 845 F.2d at 1306 (citing 28 U.S.C. § 1746); accord Washington v. Moore, No. 92-1430, 1993 WL 117975, at *1 (5th Cir. Mar. 30, 1993).
Here, the declaration was made under penalty of perjury and is declared to be true and correct. (See doc. 67 at 2-3) It is therefore competent summary judgment evidence. See 28 U.S.C. § 1746; Bazemore v. Castaneda, No. EP-10-CV-403-DB-DCG, 2011 WL 1675416, at *5 (W.D. Tex. Apr. 12, 2011). Plaintiff's objection is OVERRULED.
Plaintiff asserts that Defendant failed to attach all of the exhibits upon which it relies to its motion as required by Fed. R. Civ. P. 10(c). (Doc. 67 at 2.) Rule 10(c) states:
Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in...
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