James Murungi v. Texas Guaranteed, et al

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UNPUBLISHED OPINION FILED. [10-30238 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 10/07/2010 [10-30238]

James Murungi v. Texas Guaranteed, et al

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Case: 10-30238

Document: 00511235970

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Date Filed: 09/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30238 S u m m a r y Calendar September 16, 2010 Lyle W. Cayce Clerk

J A M E S H. MURUNGI, P la in t if f ­ A p p e lla n t , v. T E X A S GUARANTEED; SALLIE MAE, INCORPORATED, D e fe n d a n t s ­ A p p e lle e s .

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:09-CV-3109

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* J a m e s H. Murungi, proceeding pro se, appeals the district court's dismissal o f his Higher Education Act of 1965 (HEA) and state law fraud claims against b o th defendants, as well as the dismissal of his Fair Debt Collection Practices A c t (FDCPA) claim against Sallie Mae. He also challenges the district court's g r a n t of summary judgment on his state law intentional infliction of emotional d is t r e s s (IIED) claims against both defendants, as well as his FDCPA claim a g a in s t Texas Guaranteed. We affirm.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Date Filed: 09/16/2010

No. 10-30238 I M u r u n g i consolidated several student loans with Sallie Mae in 1994. Soon t h e r e a ft e r , Sallie Mae entered a guaranty agreement with Texas Guaranteed, u n d e r which Texas Guaranteed promised to reimburse Sallie Mae for any losses a r i s in g from default on the loan. When Murungi defaulted, Sallie Mae filed a c la im for reimbursement with Texas Guaranteed. After Texas Guaranteed paid t h e claim, it sought to collect from Murungi. But when Murungi failed to a r r a n g e a payment plan, Texas Guaranteed initiated administrative wage g a r n is h m e n t proceedings. M u r u n g i then sued Sallie Mae and Texas Guaranteed, alleging violations o f the HEA and FDCPA. He also brought state law claims for defamation, IIED, a n d fraud. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the district c o u r t dismissed the HEA claims against both defendants and the FDCPA claim a g a in s t Sallie Mae. The district court also dismissed the state law fraud claims a g a in s t both defendants for failing to allege fraud with particularity as required b y Federal Rule of Civil Procedure (9)(b). Finally, the district court granted s u m m a r y judgment for both defendants on the defamation and IIED claims, and fo r Texas Guaranteed on the FDCPA claim. This appeal followed.

II W e begin by noting that when a litigant fails to raise an issue or to provide a n y citations to the record or case law concerning an issue, the issue is waived a s inadequately briefed.1 Murungi does not raise the defamation claim in his b r ie f, and although he purports to appeal the dismissal of his FDCPA claim a g a in s t Sallie Mae, he does not advance any reasoning as to why the dismissal s h o u ld not stand. Accordingly, these issues have been waived. Murungi also

Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) ("Issues not raised or inadequately briefed on appeal are waived.").

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No. 10-30238 fa ils to address adequately his HEA claims on appeal. Even if he did, however, w e agree with the district court that the HEA does not provide a private right o f action.2 W e next turn to Murguni's challenge to the district court's dismissal of his fr a u d claims, which we review de novo.3 To state a claim for relief, "the

c o m p l a i n t must allege `more than labels and conclusions'" and "`factual a lle g a t io n s must be enough to raise a right to relief above the speculative level.'" 4 M o r e o v e r , Rule (9)(b) requires that a complaint "state with particularity the circu m sta n ces constituting fraud." Put simply, Rule (9)(b) requires the appellant t o lay out "`the who, what, when, where, and how'" of the events constituting fr a u d .5 M u r u n g i's efforts to revive his fraud claims are meritless. His allegations o f fraud offered, in the district court's words, "no factual heft." After reviewing t h e pleadings, we agree that Murungi's allegations plainly fall short of this c o u r t's requirement that an appellant lay out "`the who, what, when, where, and h o w '" of the events constituting fraud.6 F in a lly , we address Murungi's IIED claims and his FDCPA claim against T e x a s Guaranteed, upon which the district court granted summary judgment for t h e defendants. We review a district court's grant of summary judgment de

See, e.g., McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1224-25 (11th Cir. 2002); Thomas M. Cooley Law Sch. v. ABA, 459 F.3d 705, 711 (6th Cir. 2006); L'ggrke v. Benkula, 966 F.2d 1346, 1348 (10th Cir. 1992).
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Jebaco, Inc. v. Harrah's Operating Co., Inc., 587 F.3d 314, 318 (5th Cir. 2009). Id. (citation omitted).

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Benchmark Elec., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003) (citation omitted).
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Id.

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No. 10-30238 n o v o .7 Summary judgment is warranted when "`the pleadings, the discovery and d is c lo s u r e materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a t t e r of law.'"8 An issue of material fact is genuine if a reasonable jury could r e t u r n a verdict for the non-moving party.9 T h e only IIED claim Murungi raises on appeal concerns the defendants' a lle g e d ly abusive phone calls, but he offers no evidence that the callers' actions m e e t the high bar imposed by Louisiana law to qualify as extreme and o u tr a g e o u s conduct. Because no reasonable jury could find, based on the

e v id e n c e in the record, that the defendants' conduct was extreme and o u tr a g e o u s , the district court properly granted summary judgment. M u r u n g i argues that Texas Guaranteed should not qualify for the " g o v e r n m e n t actor" exemption from the FDCPA. The district court did not grant s u m m a r y judgment against him on this ground. Rather, the district court found t h a t Texas Guaranteed was not a "debt collector" subject to the FDCPA because it s actions to collect Murungi's defaulted loan were "incidental" to its "bona fide f i d u c ia r y obligation" to the United States government.1 0 Giving this pro se p la in t iff the benefit of the doubt that this issue is not waived, we address the d is t r ic t court's actual ruling. W e agree with the analysis of the district court, as well as our sister c i r c u it s , that a guarantor under the Federal Family Education Loan Program

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DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009) (citations omitted). Id. (quoting FED. R. CIV. P. 56(c)). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See 15 U.S.C. § 1692a(6)(F)(i).

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No. 10-30238 h a s a fiduciary obligation to the United States government.1 1 Because Texas G u a r a n t e e d was the guarantor of Murungi's loan long before it attempted to c o lle c t from him, Texas Guaranteed's actions to collect that debt were merely in c id e n t a l to its fiduciary obligation. As such, in the circumstances of this case, T e x a s Guaranteed is not a debt collector subject to the FDCPA. For the first t im e on appeal, Murungi alleges that Texas Guaranteed utilized "third party c o lle c t o r s ." Because issues raised for the first time on appeal are waived,1 2 we d o not address the extent, if any, to which these allegations affect the merit of Murungi's claims. * T h e judgment is AFFIRMED. * *

Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1034 (9th Cir. 2009); Pelfrey v. Educ. Mgmt. Corp., 208 F.3d 945 (11th Cir. 2000) (per curiam), aff'g 71 F.Supp.2d 1161 (N.D. Ala. 1999).
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Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 344 n.3 (5th Cir. 2007).

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