Opinion
CIVIL 6:22-cv-00695-ADA-DTG
02-28-2024
VINCIN CAMPISE, Plaintiff, v. HECTOR DAVILLA, VICTOR MERILES, ALONZO ROBLES, and ROBERTA RICO, Defendants.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DEREK T. GILLILAND UNITED STATES MAGISTRATE JUDGE
TO: THE 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 is ECF No. 21, Defendants' Motion to Dismiss brought by Hector Davilla, Victor Meriles, Roberta Rico, and Alonzo Robles (collectively, “Defendants”). After careful consideration of the briefs, arguments of counsel, and the applicable law, the Court RECOMMENDS that the Motion be GRANTED.
I. FACTUAL BACKGROUND
This is a suit brought by Plaintiff Mr. Vincin Campise for alleged identity theft and banking errors. Plaintiff is a pro se litigant apparently residing in Texas. ECF No. 1 (complaint submitted from address in Hearne, Texas 77859). Plaintiff alleges that on December 24, 2020, the Defendants consolidated his personal and business checking accounts. ECF No. 1 at 1. Plaintiff alleges several issues allegedly arose related to bank and credit card accounts in Plaintiff's name. Plaintiff alleges that on December 24, 2020 and continuing through June of 2022 when the Complaint was filed, Defendant Hector Davila directed Defendant Victor Mireles and Alonzo Robles “TO INITIATE FRAUDULENT ACCOUNTS TO BASE OF OPERATIONS FOR BB&T . . . FOR ACCESS TO CASH, AND RETAIL PURCHASES BEST BUY AND TRACTOR SUPPLY, AND TRAVELS . . . FOr THERE OWN USE AND BENEFIT.” Id. at 3 (capitalization in original). The Complaint further alleges on February 4, 2021, “A FRAUDULENT CREDIT CARD BLOCKED PAYMENT FOR BUSINESS OWNERS INSURANCE FOR INTREST [sic] 18%.” Id. On February 4, 2021, “WITHOUT PROPER BUSINESS INSURANCE PLAINTIFF WAS DENIED ACCESS TO SUBMIT BIDS ON COMMERCIAL JOBS AS MEMBER OF AGC.” Id. at 1-2. Plaintiff seeks actual damages, mental anguish damages, and punitive damages.
The Defendants in this case are employees of Truist Bank. Plaintiff has previously brought suit against Truist bank in Texas State Court, but that case was dismissed. Campise v. Davila, No. 10-23-00025-CV, 2023 WL 2916688, at *1 (Tex. App.-Waco Apr. 12, 2023, no pet.) (affirming summary judgment granted in favor of appellees, Hector Davila, Victor Mireles, Alonzo Robles, and Roberto Rico). This case is brought in federal court against the same bank employees.
Plaintiff brought another suit in the U.S. District Court for the Western District of Texas against one of the state trial court judges who presided over Mr. Campise's allegations, as well as the Robertson County court staff, Truist Bank, one of the bank employees (Mr. Davila), and counsel for the Truist Bank employees (Mr. Clem). Campise v. Russ, et al., No. 6:22-cv-1083-ADA-DTG.
Plaintiff brought this suit on June 28, 2022. ECF No. 1 (complaint). On August 8, 2022, Plaintiff filed a document with the Court styled on the Docket as an “Amended Complaint.” ECF No. 7. ECF No. 7 is one page, and is not, as a whole, an Amended Complaint. See generally Fed.R.Civ.P. 8(a) (providing what a pleading that states a claim for relief must contain). Rather, Plaintiff states in ECF No. 7 that he is providing “NOTICE TO AMEND HIS COMPLAINT TO INCLUDE” certain information. ECF No. 7 (capitalization in original). The Court will evaluate Plaintiff's pleadings in both documents as Plaintiff's Complaint.
II. LEGAL STANDARD
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). A court's alleged lack of subject-matter jurisdiction generally may be raised at any time in the same civil action, either in the answer or in the form of a suggestion to the court before a final judgment. Kontrick v. Ryan, 540 U.S. 443, 455 (2004). A motion under Rule 12(b)(1) should not be granted unless the court determines that the plaintiff cannot prove a plausible set of facts in support of its claim. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)); see also Canales v. ALM Media, LLC, No. 12-cv-1036, 2013 WL 5719476, at *3 (W.D. Tex. Oct. 18, 2013), report and recommendation accepted and adopted, No. 12-cv-1036, 2013 WL 12126240, at *2 (W.D. Tex. Dec. 4, 2013). United States District Courts have original jurisdiction over civil actions concerning a federal question, that is, actions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In the absence of a federal question, subject matter jurisdiction over a complaint can be based on diversity, if and only if diversity of citizenship exists between the parties. Mullins v. Testamerica Inc., 300 Fed. App'x 259, 259 (5th Cir. 2008) (per curiam) (unpublished) (explaining a plaintiff's failure to allege the basis for diversity jurisdiction mandates dismissal.”) (quoting Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir.1991)).
Federal Rule of Civil Procedure 12(b)(5) provides that a party may move to dismiss for insufficient service of process. A district court has “broad discretion to dismiss an action for ineffective service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994). Under Federal Rule of Civil Procedure 4, service may be effected on an individual by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made” Fed.R.Civ.P. 4(e)(1). Alternatively, service may be effected on an individual by any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.Fed. R. Civ. P. 4(e)(2). In any event, for the purposes of subsection (e)(2), serving summonses through certified mail is not authorized. Ray v. HSBC Bank, USA, No. 19-cv-285, 2022 WL 1541585, at *5 (W.D. Tex. Mar. 23, 2022), report and recommendation adopted sub nom. Sepeda v. HSBC Bank, USA, No. 19-cv-285, 2022 WL 2762906 (W.D. Tex. Apr. 26, 2022). Under Texas law, service may be effected by certified or registered mail “by (1) any sheriff or constable or other person authorized by law or, (2) by any person authorized by law or by written order of the court who is not less than eighteen years of age,” but “No person who is a party to or interested in the outcome of a suit shall serve any process.” Tex.R.Civ.P. 103.
A claim may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When analyzing a Rule 12(b)(6) Motion, the Court must “accept[] all well-pleaded facts as true, view[ing] them in the light most favorable to the plaintiff, and draw[] all reasonable inferences in the plaintiff's favor.” Johnson v. BOKF Nat'l Ass'n, 15 F.4th 356, 361 (5th Cir. 2021). Accepting the facts as true, the facts must be sufficient such that the claim “is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include specific factual allegations in support of the claim. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009). Res judicata is applicable if a four-part test is satisfied: (1) the parties must be either “identical or in privity;” (2) the judgment in the prior action must have been rendered by a court of competent jurisdiction; (3) the prior action must have been concluded in a final judgment on the merits; and (4) the same claim or cause of action must have been involved in both actions. Stock Bldg. Supply of Tex., L.P. v. Richardson, No. 06-cv-192, 2007 WL 9702864, at *4 (W.D. Tex. May 23, 2007) (quoting United States v. Davenport, 484 F.3d 321 (5th Cir. 2007)).
III. DISCUSSION
Defendants here argue that the case should be dismissed for independent grounds of: lack of subject-matter jurisdiction, for ineffective service of process, for failure to state a claim upon which relief can be granted, and under the principles of res judicata. The Court discusses each ground for dismissal below.
A. Lack of subject-matter jurisdiction
Defendant argues that the complaint fails to establish a basis for subject matter jurisdiction in this Court because there is no federal question raised in the pleadings, and the parties are not completely diverse. Defendants assert that recitation of “federal regulations” and “Consumer Protection” is insufficient to give rise to federal question jurisdiction. ECF No. 21 at 3. Defendants suggest that if Plaintiff is relying on the Federal Trade Commission Act (“FTC Act”), the Court lacks subject matter jurisdiction because there is no private cause of action for violations of the FTC Act. Arquero v. McGinnis Tessitore Wutscher LLP, No. 12-cv-432, 2013 WL 12393918, at *3 (W.D. Tex. Feb. 5, 2013) (citing Acara v. Banks, 470 F.3d 569, 572 (5th Cir. 2006) (explaining that as there is no private right of action under the FTC Act, courts lack jurisdiction to address plaintiffs' assertions thereunder), report and recommendation adopted, No. 12-cv-432, 2013 WL 12393985 (W.D. Tex. Mar. 11, 2013)). Defendant also argues that both Mr. Campise and Defendants are Texas citizens, so diversity does not exist. Plaintiff's response brief does not specify a federal question aside from “Federal regulations and ‘consumer protection.'” Plaintiff does not dispute that Defendants are Texas citizens. Indeed, the summons sent the Defendants were all sent to the same address where they are allegedly employed: 201 South Texas St., Bryan Texas 77803. ECF No. 14. Given this, the Court cannot conclude this case presents a federal question, or diversity jurisdiction.
B. Ineffective service of process
Defendant argues that the complaint should be dismissed because process was defective for two reasons. First, Defendant argues that the Summonses misspelled each Defendant's name.Second, Defendant argues that process was served by Plaintiff directly sending the summonses via Certified Mail. Plaintiff states that names are “easily misspelled,” but also appears to argue that the spellings he used were consistent with certain alternate spellings the Defendants used. ECF No. 27 at 3. Plaintiff concedes the summonses were sent by U.S. Mail, and does not dispute this was done so by Plaintiff. Id. at 4 (Plaintiff describing Certified U.S. Mail to each individual Defendant); ECF No. 14 (Summonses sent from the U.S. District Clerk's Office to Plaintiff, so that Plaintiff may have each defendant served).
Defendants provides their names as “Hector Davila (not Davilla), Victor Mireles (not Meriles), Alonso (not Alonzo) Robles, and Robert (not Roberta) Rico.” ECF No. 21 at 6 n.28.
In the Court's judgment, service was defective. See Fed R. Civ. P 12(b)(5) (“insufficient process” is a defense). Plaintiff's choice to send the summonses via Certified Mail alone is not inconsistent with Texas rules and Federal Rule of Civil Procedure 4(e)(1), but doing so on his own makes service defective because he is not a “person authorized by law” to do so. Tex.R.Civ.P. 103. Defendant does not cite authority that misspellings of names of summons must result in dismissal. Defendant does not allege that the misspellings resulted in failure of Defendants to receive the mailed documents, or confusion over who was actually named. The Court declines to reach the alternative argument about propriety of service in light of name spellings. The Court finds service was defective due to Plaintiff sending the summons himself via certified mail.
C. Failure to state a claim upon which relief can be granted
Defendants argue that Plaintiff's case should be dismissed because Plaintiff's “threadbare allegations” offer no new information related to Defendants other than what was dismissed by the Texas trial court and affirmed by the Texas Court of Appeals. ECF No. 21 at 8. Defendant also adds generally that Plaintiff's allegations are unclear. Id. Plaintiff does not address the 12(b)(6) pleading standards specifically. The Court agrees with Defendants that even under the liberal standards of Rule 12(b)(6), Plaintiff has failed “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
D. Res judicata
Defendant argues that the elements of res judicata are all satisfied based on the proceedings in the 361st Judicial District Court in Brazos County. Plaintiff does not respond to the res judicata claims. In the Court's Judgement, some of the elements of res judicata are met, and others are not clearly established. The parties here are identical to the state court parties. The Texas trial Court and Court of Appeals upholding it are both courts of competent jurisdiction. The State Court proceedings was concluded with a no-evidence motion for summary judgment, which may be synonymous with the trial court's final judgment on the merits. And, according to the Texas Court of Appeals affirming the trial court, Campise alleged “fraud, identity theft, credit-reporting violations, deceptive trade practices, and conspiracy,” and used a complaint in the state trial court that reads similar to parts of the complaint in this case Campise v. Davila, 2023 WL 2916688, at *1-2. Plaintiff appears to involve the same claims or causes of action in both actions, aside from Plaintiff's unsubstantiated assertion that there could be a federal question. The Court concludes, however, that Defendant has not met its burden to establish res judicata because it has not submitted any records from the trial Court. In fact, the Tenth Court of Appeals case cited above was not explicitly cited by Defendants in their motion, but was located by the Court. The Court declines to infer res judicata from a case in the 361st Judicial District Court in Brazos County based upon a synopsis found in an uncited Texas Court of Appeals case.
IV. RECOMMENDATION
For the above reasons, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Defendants' Motion to Dismiss (ECF No. 21) be GRANTED for a lack of subject-matter jurisdiction, insufficient process, and failure to state a claim upon which relief can be granted.
V. OBJECTIONS
The parties may wish to file objections 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, 15053 (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.