Opinion
6:23-CV-00648-ADA-JCM
05-02-2024
THOMAS MANN, JR., Plaintiff, v. PNC BANK, N.A., et al, Defendants.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE.
TO: HONORABLE ALAN D. ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 21), Plaintiff's Response (ECF No. 23), and Defendants' Reply (ECF No. 23). For the reasons described below, the Court RECOMMENDS the Defendant's Motion be GRANTED.
I. BACKGROUND
Plaintiff Thomas Mann Jr. sued Defendants in Bell County, Texas on August 8, 2023. Defs.' Notice of Removal (ECF No. 1), Ex. 1 at 4. Defendants removed this case to federal Court on September 5, 2023, arguing that this Court has original subject matter jurisdiction based on diversity of citizenship. Defs.' Notice of Removal at 2. In his Original Petition, Plaintiff, an African American, brought claims against Defendants under 42 U.S.C. § 1981 and 42 U.S.C. § 2000-d for allegedly denying Plaintiff the right to contract on an equal basis with white citizens. Defs.' Notice of Removal, Ex. 1 at 9-11.
Plaintiff alleges that on or about June 24, 2023, he submitted an application for a home equity loan to Defendant PNC Bank, seeking to borrow a $100,000 line of credit with the bank. Id. at 6. Plaintiff alleges that he offered his home in Killeen, Texas as collateral on the application. Id. On June 28, 2023, Defendant Joelle Neff emailed Plaintiff informing him that she would be processing the loan and requested information including proof of a homestead exemption. Id. Plaintiff emailed Defendant Neff back and advised that he did not possess a homestead exemption on the Killeen home and that he did not intend to seek one. Id. Defendant Neff informed Plaintiff that a homestead exemption was required for a HELOC loan and that she would withdraw Plaintiff's loan application. Id. at 7.
Defendant Neff informed Plaintiff that the homestead exemption was required by the Texas Constitution, not by PNC. Id. Defendant Edmondson also advised Plaintiff that his loan application was denied because Plaintiff did not offer a homestead as collateral for the loan. Id. at 8. Plaintiff alleges that “Upon information and belief, Plaintiff was denied the requested loan because of his race as Defendants had only offered pretextual reasons for the denial.” Id. at 8.
After removing the case to federal court, Defendants moved to dismiss Plaintiff's Petition. ECF No. 4. Plaintiff filed a Motion to Amend his Complaint, which the Court granted by Text Order. ECF No. 9; Text Order Oct. 12, 2023. Plaintiff's Amended Complaint incorporates paragraphs one through twenty-four of his Original Petition and only includes a new cause of action for violations of Section 17.46 of the Texas Business and Commerce Code. Pl.'s Am. Compl. (ECF No. 11). Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).
II. LEGAL STANDARD
To avoid dismissal for failure to state a claim under Rule 12(b)(6), a plaintiff must plead enough facts to state a plausible claim to relief on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court accepts all well-pleaded facts as true and will view them in a light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
The court determines whether the plaintiff has stated both a legally cognizable and plausible claim; the court should not evaluate the plaintiff's likelihood of success. Lone Star Fund V. (U.S.), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Based on the assumption that all the allegations in the complaint are true, the factual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. A court, however, need not blindly accept each allegation of fact; properly pleaded allegations of fact amount to more than just conclusory allegations or legal conclusions masquerading as factual conclusions. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); see Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
When the plaintiff pleads factual content that allows the court to reasonably infer that the defendant is liable for the alleged misconduct, then the claim is plausible on its face. Iqbal, 556 at 678. The plausibility standard, unlike the “probability requirement,” requires more than a sheer possibility that a defendant acted unlawfully. Id. A pleading offering “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.
III. ANALYSIS
Defendants argue first that Plaintiff abandoned his claims under 42 U.S.C. §§ 1981 and 2000d by amending his Complaint and failing to mention either claim. Defs.' Mot. at 5. Defendants also argue that Plaintiff has failed to state a claim under either statute. Finally, Defendants argue that Plaintiff fails to state a claim under the Deceptive Trade Practices Act because he is not a consumer as defined by the statute. Id. at 11. Plaintiff argues that he has not abandoned his claims under Sections 1981 and 2000d and that he is a consumer under the statute.
A. Plaintiff abandoned his claims under 42 U.S.C. § 1981 and § 2000d.
Defendants argue that Plaintiff's Amended Complaint supersedes Plaintiff's Original Petition. Defs.' Mot. at 5. Plaintiff argues that his Amended Complaint abandons nothing and adds a third claim. Pl.'s Resp. at 2. The Court construes Plaintiff's argument in his response as an argument that he supplemented his Original Petition rather than amended it.
Plaintiff's Amended Complaint is properly viewed as an Amended Complaint rather than a supplement to his Original Petition. “A supplemental pleading differs from an amended pleading in two respects: amended leadings relate to matters that occurred prior to the filing of the original pleading and entirely replace the earlier pleading; supplemental pleadings address events that occurred subsequent to the initial pleading and add to the pleading.” McRaney v. N. Am. Mission Bd. Of S. Baptist Convention, Inc., No. 1:17-CV-80-GHD-DAS, 2022 WL 17490496, at *1 (N.D. Miss. Dec. 7, 2022) (citations omitted). Here, Plaintiff's Amended Complaint relates to matters that occurred prior to filing his Original Petition. Accordingly, it entirely replaces the Original Petition.
An Amended Complaint can incorporate the prior pleading by referencing and adopting it. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Plaintiff partially adopted and incorporated his Original Petition into his Amended Petition. Pl.'s Am. Compl. at 1. Plaintiff's Amended Complaint and Plaintiff's argument in his response indicate that Plaintiff is confused about this procedural mechanism. Plaintiff's Amended Complaint states that “Plaintiff hereby adopts and incorporates herein Paragraph (sic) one through twenty-four of the Original Petition as filed with the Bell County District Court on August 8, 2023.” Id. This indicates Plaintiff's intent to adopt only paragraphs one through twenty-four which do not contain Plaintiff's original claims, and therefore, to abandon the original claims. The next paragraph, however, states that “Plaintiff now adds claim number three.” Id. This indicates that Plaintiff misunderstands the effect of filing an Amended Complaint. Generally, Courts are required to hold pro se litigants to less stringent standards than lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Here, however, Plaintiff is a licensed attorney not eligible to practice in Texas for failure to comply with MCLE requirements. ineligible NameSort (texasbar.com) (last visited May 2, 2024). Accordingly, Plaintiff is tasked with understanding the law, and his misunderstanding does not alter the fact that his Amended Complaint abandoned the two federal causes of action and only his Deceptive Trade Practices Act claim remains.
B. Plaintiff is not a consumer under the Deceptive Trade Practices Act.
Plaintiff alleges that Defendants committed deceptive trade practices in violation of Section 17.46 of the Texas Business and Commerce Code. Pl.'s Am. Compl. at 2. Defendants argue that Plaintiff is not a consumer under the DTPA and that his claims under it must be dismissed under Rule 12(b)(6).
“Consumer” is defined as “an individual . . . who seeks or acquires by purchase or lease, any goods or services.” Tex. Bus. & Com. Code § 17.45(4). A loan is not a good or a service. Riverside Nat. Bank v. Lewis, 603 S.W.2d 169, 174 (Tex. 1980). Since this dispute only involves Plaintiff's attempt to secure a loan from Defendant PNC, Plaintiff is not a consumer under the DTPA. Accordingly, Plaintiff has failed to state a claim under the DTPA, and his case should be dismissed.
IV. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS the Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 21) be GRANTED.
V. OBJECTIONS
The parties may wish to object to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.