Goodwin v. New Orleans City et al

Filing 135

ORDER & REASONS: Plaintiff's 73 Motion for Default Judgment against the Baytown Housing Authority, the City of Baytown, Mr. Tombar, Mr. Rodriguez, Ms. Alexander, Dr. Shahar, Dr. Walker, and Wells Fargo is DENIED; Plaintiff's Motion for entry of default against Kelly Dorfman is DENIED; FURTHER ORDERED that Rev. Goodwin shall show good cause, in writing by 8/15/2013 why her claims against Ms. Dorfman should not be dismissed. Plaintiff's Motion for entryof default against Fran Parent, Rev. Terrell, and Mark Tiller is GRANTED. FURTHER ORDERED that the Clerk of Court shall file into the record an entry of default, pursuant to Rule 55(a), against Fran Parent, Rev. Terrell, and Mark Tiller. FURTHER ORDERED that Fran Paren t, Rev. Terrell, and Mark Tiller shall each respond to Rev. Goodwins second amended complaint by 8/15/2013,at 5:00 p.m. or show good cause, in writing, why Rev. Goodwin should not be permitted to move for default judgment against them. Plaintiff� 39;s 86 , 121 Motions for Declaratory Judgment are DENIED; Plaintiff's 118 Motion for Temporary Restraining Order is DENIED; Plaintiff's 123 Motion for Mortgage Release is DENIED; Plaintiff's 131 Motion for Continuance for Notice of Appeal for Appointership of Legal Counsel, Discovery Plan, and Deadlines is DENIED; Wells Fargo's 74 Motion to Dismiss for Failure to State a Claim is GRANTED; The claims against Wells Fargo are DISMISSED in their entirety. FURTHE R ORDERED that Wells Fargos request for an injunction is DENIED. Wells Fargo's 126 Motion to Strike is DENIED; Dr. Shahar's 54 Motion to Dismiss for Lack of Jurisdiction is GRANTED & the claims against him are DISMISSED. Dr. Brian Walker's 56 Motion to Dismiss for Failure to State a Claim is GRANTED & the claims against him are dismissed. HANO's 51 Motion to Dismiss for Lack of Subject matter Jurisdiction is GRANTED & the claims against HANO are DISMISSED.Bayto wn Defendants' 58 Motion to Dismiss for Failure to State a Claim is GRANTED & the claims against them are DISMISSED; HUD Defendants' 63 Motion to Dismiss is DENIED WITHOUT PREJUDICE; Plaintiff shall perfect service on the HUD Defendan ts no later than 8/15/2013, at 5:00 p.m.& she shall file into the record proof of such service no later than 8/222013 at 5:00 p.m.; Other deadlines are stated herein. SHOW CAUSE ORDER: to the City of New Orleans and Stephen Don Carlos. FURTHER ORDE RED that the City and Mr. Carlos shall file each respond to Rev. Goodwins second amended complaint no later than 8/15/2013, at 5:00 p.m. or show good cause why either should not be required to do so.. Signed by Judge Susie Morgan on 7/25/2013. (regular & certified mail sent to: Sharonda Williams & Stephen Don Carlos)(gbw, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REV. DENINAH GOODWIN
Plaintiff

CIVIL ACTION

VERSUS

No. 11-1397

HOUSING AUTHORITY OF
NEW ORLEANS, et al.,
Defendants

SECTION “E”

ORDER AND REASONS
Before the Court are numerous motions filed by pro se plaintiff Rev. Deninah
Goodwin (“Rev. Goodwin”)1 and various defendants. The Court rules as follows.
BACKGROUND
On October 25, 2011, Rev. Goodwin filed a “Lawsuit for Damages for Federal Breach
of Contracts during Hurricane Katrina, Rita and Ike” styled as a putative class action
brought by Rev. Goodwin, individually and on behalf of “Hattie Goodwin, deceased, and
Christenina Webb, minor child, and others affected before, during and after Hurricane
Katrina and Ike.”2 Rev. Goodwin named a number of federal and state government
agencies as defendants in her original complaint. On November 8, 2011, Rev. Goodwin

1

While Rev. Goodwin lists her late mother’s estate, her daughter Christenina Webb, and a
nonprofit organization called “I Am My Brother’s Keeper, and My Father’s Child,” as plaintiffs in the body
of her second amended complaint, see R. Doc. 27 at p. 2, she does not name those individuals and entities
in the caption. Federal Rule of Civil Procedure 10(a) requires the caption of a complaint to name all
parties. Rev. Goodwin failed to comply with this rule. Accordingly, Rev. Goodwin's mother’s estate, Ms.
Webb, and the nonprofit organization are not plaintiffs in this case. To the extent those individuals and
entities are plaintiffs, the Court’s ruling applies to them as well. In addition, the Court notes that Rev.
Goodwin purports to represent not only herself but also to appear on behalf of her late mother’s estate,
Ms. Webb, and the nonprofit organization. Rev. Goodwin also purports to act as “Lead Plaintiff” on behalf
of a putative class of “Affected Americans, who too, are recovering from Hurricanes Katrina, Rita, and
Ike.” Rev. Goodwin, as a pro se plaintiff, cannot represent other individuals or entities. See, e.g., Simon v.
Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008) (collecting cases). Nor can she act as “Lead
Plaintiff” on behalf of a putative class. Id.
2

R. Doc. 5.

1

filed a first amended complaint, seeking damages from several federal and state agencies
“for the violations of the federal and state laws, affecting the housing, of Americans, affected
before, during, and after Hurricanes Katrina, Rita and Ike.”3 On April 30, 2012, Rev.
Goodwin was granted leave to file a second amended complaint.4 In that second amended
complaint,5 Rev. Goodwin asserts a number of individuals, private corporations, and federal
and state government agencies engaged in conduct during and after Hurricanes Katrina,
Rita, and Ike giving rise to causes of action under the False Claims Act (“FCA”), 31 U.S.C.
§§ 3729-3733, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§§ 1961-1968, and various state laws. Rev. Goodwin asserts this Court has jurisdiction over
this case pursuant to 28 U.S.C. § 1331.
Rev. Goodwin’s second amended complaint is complicated, and contains allegations
and claims too numerous to list and, in some cases, too difficult to explain. To the extent
possible, the Court will address Rev. Goodwin’s specific allegations against specific
defendants in conjunction with its rulings on the pending motions.
ANALYSIS
I.

Rev. Goodwin’s Motions
A.

Rev. Goodwin’s Motion for Entry of Default6

Rev. Goodwin has filed a motion seeking an entry of default for failure to plead or

3

R. Doc. 13.

4

R. Doc. 26.

5

R. Doc. 27.

6

R. Doc. 73.

2

otherwise respond, pursuant to Rule 55(a),7 against the following defendants: (1) Debra
Alexander, (2) the Baytown Housing Authority, (3) the City of Baytown, Texas, (4) Fran
Parent, (5) Daniel Rodriguez, (6) Dr. Julio Shahar, (7) Rev. James Mike Terrell (“Rev.
Terrell”), (8) Mark Tiller, (9) Dr. Brian Walker, (10) Wells Fargo Home Mortgage, Inc.
(“Wells Fargo”), (11) Fred Tombar, and (12) Kelly Dorfman. Rev. Goodwin contends that
these defendants failed to answer or otherwise respond to her second amended complaint
in a timely fashion. Mr. Tombar, Mr. Rodriguez, Ms. Alexander, Dr. Shahar, and Dr.
Walker filed formal oppositions to Rev. Goodwin’s motion for entry of default.8
The Baytown Housing Authority, the City of Baytown, Mr. Tombar, Mr. Rodriguez,
Ms. Alexander, Dr. Shahar, Dr. Walker, and Wells Fargo all timely filed motions to dismiss
the claims asserted in Rev. Goodwin’s second amended complaint.9 Rev. Goodwin’s motion
for entry of default against these defendants fails because they have filed pleadings
defending against her action.
Accordingly, to the extent Rev. Goodwin seeks an entry of default under Rule 55(a)
against the Baytown Housing Authority, the City of Baytown, Mr. Tombar, Mr. Rodriguez,
Ms. Alexander, Dr. Shahar, Dr. Walker, and Wells Fargo, IT IS ORDERED that Rev.
Goodwin’s motion be and hereby is DENIED.

7

Rev. Goodwin states in her motion that she seeks a “motion for entry of default judgment.”
Because the entry of a clerk’s default under Rule 55(a) is a necessary prerequisite to the entry of a default
judgment under Rule 55(b), the Court construes Rev. Goodwin’s motion as a request for entry of default
under Rule 55(a).
8

Walker).

R. Doc. 75 (Tombar, Rodriguez, and Alexander); R. Doc. 77 (Dr. Shahar); R. Doc. 79 (Dr.

9

See R. Doc. 58 (Motion to dismiss filed by the Baytown Housing Authority and the City of
Baytown); R. Doc. 63 (Motion to dismiss filed by Hebert, Tombar, Rodriguez, and Alexander); R. Doc. 54
(Motion to dismiss filed by Dr. Shahar); R. Doc. 56 (Motion to dismiss filed by Dr.Walker); R. Doc. 74
(Motion to dismiss filed by Wells Fargo).

3

The record reflects that a summons was issued to Ms. Dorfman on October 4, 2012.10
The return of service filed in the record,11 however, is unsigned, and the attached printout
from the United States Postal Service stating that “Your document was delivered at 7:12
a.m. on November 5, 2012 in Washington, DC 20410” does not demonstrate that the
summons was properly served on Ms. Dorfman under Rule 4(e).12 Because Rev. Goodwin’s
purported service of the summons on Ms. Dorfman did not comply with Rule 4(e), service
was never perfected on Ms. Dorfman, timely or otherwise. The entry of a clerk’s default
under Rule 55(a) is predicated on a defendant’s failure to timely respond to a plaintiff’s
complaint, and thus effective service is a prerequisite to the entry of a clerk’s default. See,
e.g., Maryland State Firemen Assoc. v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996) (“It is
axiomatic that service of process must be effective under the Federal Rules of Civil
Procedure before a default or a default judgment may be entered against a defendant.”).
In the absence of effective service on Ms. Dorfman, Rev. Goodwin’s requested entry of
default against Ms. Dorfman is not warranted.

Accordingly, IT IS FURTHER

ORDERED that Rev. Goodwin’s motion for entry of default against Kelly Dorfman be and
hereby is DENIED.
IT IS FURTHER ORDERED that Rev. Goodwin shall show good cause, in writing,
why her claims against Ms. Dorfman should not be dismissed, pursuant to Rule 4(m), for
failure to timely serve a copy of her second amended complaint on Ms. Dorfman. Rev.

10

R. Doc. 45.

11

R. Doc. 111.

12

Under Federal Rule of Civil Procedure 4(d), an individual may waive service of process,
obviating the need for service on the individual. There is no indication that Ms. Dorfman waived service of
Rev. Goodwin’s second amended complaint. Accordingly, Rule 4(e) provides the options for service on an
individual who has not waived service.

4

Goodwin’s written response to this show cause order shall be filed no later than August 15,
2013, and the document must be received by this Court by this date to be considered
timely. Failure to comply with this deadline will result in the dismissal of Rev. Goodwin’s
claims against Ms. Dorfman.
With respect to Fran Parent, Rev. Terrell, and Mark Tiller, the Court finds these
three defendants were in fact properly served with copies of Rev. Goodwin’s second
amended complaint.13 Under Rule 55(a), “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party's default.” Because Fran Parent,
Rev. Terrell, and Mark Tiller have not responded to Rev. Goodwin’s second amended
complaint, the Court has no choice but to direct the Clerk to enter a default against these
three defendants.
Accordingly, IT IS FURTHER ORDERED that Rev. Goodwin’s motion for entry
of default against Fran Parent, Rev. Terrell, and Mark Tiller be and hereby is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall file into the record an
entry of default, pursuant to Rule 55(a), against Fran Parent, Rev. Terrell, and Mark Tiller.
IT IS FURTHER ORDERED that Fran Parent, Rev. Terrell, and Mark Tiller shall
each respond to Rev. Goodwin’s second amended complaint no later than August 15,
2013, at 5:00 p.m., or show good cause, in writing, why Rev. Goodwin should not be
permitted to move for default judgment against them pursuant to Rule 55(b) as a result of

13

See R. Doc. 65-7 (return of service on Fran Parent demonstrating that service was effected via
certified mail); R. Doc. 65-8 (return of service on Mark Tiller demonstrating that service was effected via
certified mail); R. Doc. 65-9 (return of service on Rev. Terrell demonstrating that service was effected via
certified mail).

5

their failure to respond. Responses to this show cause order must be received by the Clerk’s
Office by August 15, 2013, at 5:00 p.m. to be considered timely filed.
B.

Rev. Goodwin’s Motions for Declaratory Judgment14

Rev. Goodwin has filed two motions for declaratory judgment against Wells Fargo.
Wells Fargo opposes both motions.15 Rev. Goodwin seeks essentially the same relief in both
motions for declaratory judgment - a declaration that Wells Fargo owes various amounts
of money to Rev. Goodwin and the other named plaintiffs. The Court notes that Rev.
Goodwin’s motions for declaratory judgment, which are likely more appropriately
characterized as motions for summary judgment, considering Rev. Goodwin’s reliance on
material outside the pleadings, are premature, in light of the fact that issue has not joined,
a scheduling order has not been entered, and discovery has not been conducted. As
explained below, Wells Fargo has moved to dismiss Rev. Goodwin’s claims in their entirety,
and, because the Court agrees with Wells Fargo that Rev. Goodwin’s claims must be
dismissed, Rev. Goodwin’s motions for declaratory judgment are denied.
Accordingly, IT IS FURTHER ORDERED that Rev. Goodwin’s motions for
declaratory judgment be and hereby are DENIED.
C.

Rev. Goodwin’s Motion for “Temporary Restraining Order”16

14

See R. Doc. 86 (Rev. Goodwin’s first motion for declaratory judgment); R. Doc. 121 (Rev.
Goodwin’s second motion for declaratory judgment).
15

See R. Doc. 97 (Wells Fargo’s opposition to first motion for declaratory judgment); R. Doc. 124
(Wells Fargo’s opposition to second motion for declaratory judgment).
16

R. Doc. 118. Rev. Goodwin’s motion purports to seek a temporary restraining order under Rule
65(b), but, because Rev. Goodwin’s motion seeks relief that would last for more than fourteen days, the
Court construes Rev. Goodwin’s motion as a request for preliminary injunctive relief under Rule 65(a).

6

Rev. Goodwin has also moved for a preliminary injunction against Wells Fargo.17
Wells Fargo opposes Rev. Goodwin’s motion.18 As with Rev. Goodwin’s motions for
declaratory judgment, because the Court grants Wells Fargo’s motion to dismiss Rev.
Goodwin’s claims in their entirety, the Court need not but will briefly address Rev.
Goodwin’s motion for preliminary injunction. Rev. Goodwin seeks five things with her
motion for preliminary injunction: (1) to “circumvent further accumulation of property
taxes” on a tract of immovable property she inherited from her late mother; (2) to require
Wells Fargo to cancel a January 2002 mortgage granted against the property and in favor
of HUD as security for a $5,445.90 note payable to HUD; (3) to compel Wells Fargo to pay
Rev. Goodwin $152,000 she claims Wells Fargo owes to her late mother’s estate; (4) for a
“favorable ruling” on her pending motions for declaratory judgment; and (5) for a
declaration that the Huntington Park Homeowners’ Association cannot rightfully retain the
subject tract of immovable property.
A plaintiff may obtain a preliminary injunction only after establishing four things:
(1) that there is a “substantial likelihood” the plaintiff will prevail on the merits; (2) that
there is a “substantial threat” the plaintiff will suffer “irreparable harm” if the injunction
is not granted; (3) that the threatened injury outweighs the threatened harm to the
defendant; and (4) that the granting of the preliminary injunction will not “disserve the
public interest.” Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570,

17

In addition to Wells Fargo, Rev. Goodwin also directs her motion at the Huntington Park
Homeowners’ Association, which was dismissed as a defendant in this case, and the City of New Orleans,
“thru [sic] their [sic] Taxation and Adjudication Contractor, Civic Source Collections and Auctioneer.” The
City of New Orleans is a defendant in this case, but, as explained below, it has not responded to Rev.
Goodwin’s second amended complaint.
18

R. Doc. 125.

7

574 (5th Cir. 2012). The decision to grant or deny a preliminary injunction application lies
within the sound discretion of the district court. Planned Parenthood of Hous. & Se. Tex.
v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005).
Rev. Goodwin has not satisfied any of the requirements for the issuance of her
requested five-part preliminary injunction. She has not demonstrated there is a substantial
threat that she will suffer irreparable harm if an injunction is not granted, nor has she even
addressed the burden the requested injunction might have on the defendants or the effect,
if any, the injunction would have on the public interest. Most importantly, Rev. Goodwin
has not established she is likely to prevail on the merits of her underlying claims, many of
which are similar or identical to the five-part injunction Rev. Goodwin now seeks. The
Court, in its discretion, denies Rev. Goodwin’s motion for preliminary injunction.
Accordingly, IT IS FURTHER ORDERED that Rev. Goodwin’s motion for
preliminary injunction be and hereby is DENIED.
D.

Rev. Goodwin’s Motion for “Mortgage Release”19

Rev. Goodwin has filed a motion requesting that the Court “order, the release, of The
Mortgage, for the approximate amount of $5,000, being held against [the] Property,
located at 7268 Claridge Ct., in the City of New Orleans, La.” Wells Fargo opposes Rev.
Goodwin’s motion.20 It appears Rev. Goodwin directs this motion at Wells Fargo, which
would mean the Court may dispose of the motion for mortgage release for the same reason
it denied Rev. Goodwin’s motions for declaratory judgment and her motion for preliminary
injunction (i.e., because Rev. Goodwin’s claims against Wells Fargo are dismissed in their

19

R. Doc. 123.

20

R. Doc. 129.

8

entirety), but it is not entirely clear that this motion is directed at Wells Fargo.21 Regardless
of the target of the motion, however, Rev. Goodwin has clearly failed to demonstrate any
basis in fact or law for the relief she seeks. Indeed, the requested relief is either redundant
of her other requests - specifically, her request for injunctive relief and her requests for
declaratory relief - or is simply not a request the Court has authority to grant.
Accordingly, IT IS FURTHER ORDERED that Rev. Goodwin’s motion seeking
the mortgage on her property be released be and hereby is DENIED.22
E.

Rev. Goodwin’s “Motion for Continuance for Notice of
Appeal for Appointership [sic] of Legal Counsel, Discovery
Plan, and Deadlines”23

With this motion, it appears Rev. Goodwin is requesting an extension of time to do
the following: (1) to file a notice of appeal regarding Judge Knowles’ June 3, 2013 order24
denying Rev. Goodwin’s motion to appoint counsel25; (2) to submit a proposed discovery
plan for this case; (3) to re-issue summons to dismissed defendants Hon. Alphonse
Jackson, St. Luke’s Episcopal Hospital, and the Huntington Park Homeowners’ Association;
and (4) to provide unidentified “supplemental information” to the Court. Dr. Shahar
opposes this motion.26 To the extent any of the things Rev. Goodwin is proposing has a

21

As explained in Wells Fargo’s opposition, Rev. Goodwin’s motion may be more properly
characterized as seeking relief from HUD instead of Wells Fargo. HUD is no longer a defendant in this
case.
22

The Court addresses Wells’ Fargo’s request for sanctions against Rev. Goodwin, which Wells
Fargo sets forth in its motion to dismiss and repeats in its opposition to Rev. Goodwin’s motion to have
her mortgage released, in the context of Wells Fargo’s motion to dismiss. See infra Section II.A.
23

R. Doc. 131.

24

R. Doc. 116.

25

R. Doc. 103.

26

R. Doc. 134.

9

deadline that has already passed (i.e., to file a notice of appeal of Judge Knowles’ order and
to re-issue summons), such that an extension of time could be helpful, Rev. Goodwin has
not provided any compelling reason why an extension of time, requested after the
applicable deadline has passed, is necessary or appropriate. Moreover, Rev. Goodwin has
provided no justification for her other proposals (i.e., to submit a discovery plan and to
provide supplemental information to the court), and the Court finds those requests to be
unfounded and meritless.
Accordingly, IT IS FURTHER ORDERED that Rev. Goodwin’s “motion for
continuance” be and hereby is DENIED.
II.

Wells Fargo’s27 Motions
A.

Wells Fargo’s Motion to Dismiss28

Wells Fargo has moved to dismiss the claims in Rev. Goodwin’s second amended
complaint, with prejudice, pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6).
Wells Fargo also requests that Rev. Goodwin be enjoined from filing any more pleadings
in this case. Rev. Goodwin opposes Wells Fargo’s motion.29 Wells Fargo has filed a reply
in further support of its motion.30
While Rev. Goodwin’s claims are often difficult to understand, it appears her claims
against Wells Fargo are, essentially, as follows:
•

Wells Fargo violated Rev. Goodwin’s rights by applying insurance proceeds
received by Rev. Goodwin’s late mother, as a result of an insurance claim filed

27

“Wells Fargo” is short for Wells Fargo Home Mortgage, Inc.

28

R. Doc. 74.

29

R. Doc. 90.

30

R. Doc. 102.

10

after Hurricane Katrina, to reduce the mother’s secured debt to Wells Fargo
in connection with a 2001 mortgage loan;
•

Wells Fargo violated Rev. Goodwin’s rights by pursing a foreclosure action
against the property she inherited from her late mother in 2007; and

•

Wells Fargo violated Rev. Goodwin’s rights by refusing to accept a reduced
payoff in satisfaction of the 2001 mortgage loan.

Rev. Goodwin claims Wells Fargo’s actions constitute “violations of Federal Banking Laws,
Fraud, and Deprivation[s] of Constitutional Rights,” “violations of the Truth in Negotiations
Act,” and “any number of state claim act [and] false claims act” violations. Rev. Goodwin
also claims Wells Fargo violated RICO and the FCA.
Wells Fargo argues Rev. Goodwin’s claims fail to state facially plausible causes of
action, and therefore must be dismissed in their entirety. Wells Fargo argues that Rev.
Goodwin’s claims fail to meet the pleading requirements contained in Rules 8, 9, and 11,
and moreover, that those claims lack substantive merit. Wells Fargo also argues Rev.
Goodwin’s co-plaintiffs31 are not proper parties in this action and even if they were, they too
fail to state facially plausible causes of action. Finally, Wells Fargo argues that Rev.
Goodwin is a vexatious litigant and should be enjoined from filing any further pleadings in
this court.
Federal Rule of Civil Procedure 8 provides that any pleading stating a claim for relief
must contain the following:
(1)

a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;

31

As explained above, none of Rev. Goodwin’s “co-plaintiffs” are actually plaintiffs in this case.
See supra note 1.

11

(2)

a short and plain statement of the claim showing that
the pleader is entitled to relief; and

(3)

a demand for the relief sought, which may include relief
in the alternative or different types of relief.

FED. R. CIV. P. 8 (a). Rule 8(e) further provides that “[p]leadings must be construed so as
to do justice.”

Federal Rule of Civil Procedure 9 provides a heightened pleading

requirement for fraud claims: “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person's mind may be alleged generally.” FED. R. CIV. P. 9(b). The
Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statements
contended to be fraudulent, identify the speaker, state when and where the statements were
made, and explain why the statements were fraudulent.” Flaherty & Crumrine Preferred
Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th Cir. 2009), cert. denied, 130 S. Ct.
199 (2009). “Put simply, Rule 9(b) requires ‘the who, what, when, where, and how’ to be
laid out.” Benchmark Electronics, Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir.
2003) (internal quotation omitted). “The particularity demanded by Rule 9(b) . . .is
supplemental to the Supreme Court’s . . . interpretation of Rule 8(a) requiring ‘enough facts
[taken as true] to state a claim to relief that is plausible on its face.’” United States ex rel.
Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009) (footnote added) (citing
Twombly, 550 U.S. at 570).
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim if the
claimant fails to set forth a factual allegation in support of its claim that would entitle it to
relief (i.e., for “failure to state a claim”). See, e.g. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007); see also Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). Those factual
12

allegations “must be enough to raise a right to relief above the speculative level.” Gonzalez
v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Twombly, 550 U.S. at 555)). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570)). “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. The Court must accept all
well-pled facts as true and must draw all reasonable inferences in favor of the non-moving
party, Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009), but the Court
need not accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at
678.
It is important to note that, in general, pro se litigants are held to less stringent
standards than parties represented by counsel. While a district court generally may not “go
outside the complaint” in considering a Rule 12(b)(6) motion to dismiss, Scanlan v. Tex.
A & M Univ., 343 F.3d 533, 536 (5th Cir. 2003), when ruling on a motion to dismiss a pro
se complaint, the district court is “required to look beyond the [plaintiff's] formal complaint
and to consider as amendments to the complaint those materials subsequently filed.”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); Clark v. Huntleigh Corp., 119 F. App’x.
666, 667 (5th Cir. 2005). While Rev. Goodwin’s pro se status does not obviate the need for
her to comply with the basic standards set forth in the federal rules, the Court has
attempted to assess the merits of Rev. Goodwin’s claims in the second amended complaint
as opposed to dismissing those claims based on technical issues with her pleadings.
After careful review of Rev. Goodwin’s 121-page second amended complaint and all
13

materials subsequently filed, the Court finds Rev. Goodwin has not stated any facially
plausible cause of action against Wells Fargo. Rev. Goodwin’s disjointed, conclusory
allegations do not appear to give rise to any statutory or constitutional violation on the part
of Wells Fargo, let alone the violations specifically pled by Rev. Goodwin. Likewise, Rev.
Goodwin has not alleged sufficient facts giving rise to state law tort or contract claims, and,
as recognized by Wells Fargo, it is very likely that such claims would be prescribed in any
event. Lastly, setting aside the issue of whether Rev. Goodwin is permitted to act as
representative of a putative class, her amended complaint fails to meet any of the
requirements for class certification contained in Rule 23.
Wells Fargo’s decision to apply property insurance proceeds recovered for casualties
sustained to its collateral to reduce a mortgagor’s secured indebtedness, which it was
expressly authorized to do, is not a breach of contract, a state law tort, or a violation of any
statutory or constitutional right. Nor is Wells Fargo’s decision to refuse a reduced payoff
or its decision to institute a foreclosure proceeding against Rev. Goodwin’s late mother’s
estate an actionable violation. Simply put, Rev. Goodwin has not alleged facts giving rise
to the reasonable inference that Wells Fargo is in any way liable to Rev. Goodwin. Rev.
Goodwin’s failure to state any facially plausible cause of action against Wells Fargo means
her claims against Wells Fargo must be dismissed. Because the Court finds Rev. Goodwin’s
claims lack substantive merit, it is unnecessary to address the technical issues with her
pleadings.
Accordingly, IT IS FURTHER ORDERED that Wells Fargo’s motion to dismiss
Rev. Goodwin’s claims under Rule 12(b)(6) be and hereby is GRANTED.
IT IS FURTHER ORDERED that Rev. Goodwin’s claims against Wells Fargo be
14

and hereby are DISMISSED in their entirety.
The Court turns now to Wells Fargo’s request that Rev. Goodwin be enjoined from
any future filings in this court. The Fifth Circuit has stated that “[f]ederal courts have the
power to enjoin plaintiffs who abuse the court system and harass their opponents. This
includes enjoining future filings to protect its jurisdiction and control its docket.” Clark v.
Mortenson, 93 F. App’x 643, 654 (5th Cir. 2004) (citing Farguson v. MBank Houston, N.A.,
808 F.2d 358, 360 (5th Cir. 1986)). “An injunction against future filings must be tailored
to protect the courts and innocent parties, while preserving the legitimate rights of
litigants.” Id. While the Court recognizes Rev. Goodwin’s long history of filing meritless
claims in the state and federal courts in Texas and Louisiana, the Court finds Wells Fargo’s
requested injunction to be unnecessary in light of the Court’s dismissal of virtually all of
Rev. Goodwin’s claims against almost all remaining defendants. With respect to Wells
Fargo, should Rev. Goodwin continue to pursue her meritless claims, the Court will not
hesitate to take necessary action, which may include the issuance of an injunction.
Accordingly, IT IS FURTHER ORDERED that Wells Fargo’s request for an
injunction be and hereby is DENIED.
B.

Wells Fargo’s Motion to Strike32

In addition to moving to dismiss Rev. Goodwin’s claims, Wells Fargo has also moved
to strike from the record two affidavits attached to Rev. Goodwin’s motion for preliminary
injunction.33 Wells Fargo argues the affidavits fail to comply with 28 U.S.C. § 1746, which
provides the requirements for a valid declaration, that the affiants lack personal knowledge

32

R. Doc. 126.

33

See R. Doc. 118, Ex. 1 (Affidavits of Rev. Goodwin and Christenina Webb).

15

as to the contents of those affidavits, that the content of the affidavits is factually incorrect,
and that the affidavits are rife with speculation and legal conclusions. Rev. Goodwin
opposes Wells Fargo’s motion to strike.34 Because the Court has denied Rev. Goodwin’s
motions with respect to Wells Fargo, including her motion for preliminary injunction, and
dismissed her claims against Wells Fargo in their entirety, it is unnecessary to strike the
subject affidavits from the record.
Accordingly, IT IS FURTHER ORDERED that Wells Fargo’s motion to strike be
and hereby is DENIED.
III.

Dr. Julio Shahar’s Motion to Dismiss35

Dr. Shahar has moved to dismiss Rev. Goodwin’s claims under Rule 12(b)(1) for lack
of subject matter jurisdiction, under Rule 12(b)(2) for lack of personal jurisdiction, and
under Rule 12(b)(6) for failure to state a claim. Rev. Goodwin opposes Dr. Shahar’s
motion.36
As with Rev. Goodwin’s claims against Wells Fargo, it is difficult to pinpoint the
exact nature of Rev. Goodwin’s claims against Dr. Shahar. Rev. Goodwin alleges that Dr.
Shahar was her mother’s treating physician in Baytown, Texas, but Rev. Goodwin’s only
specific claim directed at Dr. Shahar is that he violated Rev. Goodwin’s “Constitutional
Rights.”
Dr. Shahar now argues that Rev. Goodwin lacks standing to bring such a generalized
grievance against him and that he has no connection to any of Rev. Goodwin’s more specific

34

R. Doc. 128.

35

R. Doc. 54.

36

R. Doc. 83.

16

claims. Dr. Shahar also argues that this Court cannot exercise general or specific personal
jurisdiction over him, as he does not live or work in Louisiana, he has no business contacts
in Louisiana, and the specific acts alleged in Rev. Goodwin’s second amended complaint
relating to Dr. Shahar did not occur in Louisiana. Lastly, Dr. Shahar argues that even if this
Court does have subject matter and personal jurisdiction, Rev. Goodwin’s claims lack
substantive merit in any event.
Federal Rule of Civil Procedure 12(h)(3) mandates the dismissal of an action when
a federal court lacks jurisdiction over the subject matter of the plaintiff's claim. A party
seeking to challenge a federal court's subject matter jurisdiction, based upon the allegations
on the face of the complaint, may file a motion pursuant to Federal Rule of Civil Procedure
12(b)(1). Barrera -Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996) (citing
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)). In
ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on “(1) the complaint alone;
(2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts and by the court's resolution of disputed
facts.” Barrera–Montenegro, 74 F.3d at 659 (internal citations omitted). A federal court
has an unflagging duty to inquire into its jurisdiction whenever the possibility of a lack of
jurisdiction arises. Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998).
As the party asserting federal jurisdiction, the burden is on the plaintiff to demonstrate that
jurisdiction is proper. Id. “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). “A case is properly dismissed for lack of subject matter jurisdiction when the
17

court lacks the statutory or constitutional power to adjudicate the case.” Home Builders
Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
An actual “case or controversy” must exist before a federal court can properly
exercise subject matter jurisdiction. U.S. CONST. Art. III, § 2, cl. 1. Standing is an element
of the “case or controversy” requirement, and lack of standing deprives the district court
of subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The “irreducible constitutional minimum of standing” is comprised of three requirements:
(1) the plaintiff must suffer an injury in fact - “an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical”; (2) the plaintiff’s injury must be “fairly traceable to the challenged action of
the defendant”; and (3) “it must be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Id. The party invoking federal jurisdiction bears
the burden of establishing these three requirements. Id.
Rev. Goodwin’s claims, at least with respect to Dr. Shahar, are nothing more than
generalized grievances that have little, if any, connection to Dr. Shahar. Setting aside
whether Rev. Goodwin can meet either the “injury in fact” or “redressability” requirements
for constitutional standing, the Court finds Rev. Goodwin clearly has failed to establish the
“fairly traceable” requirement. Rev. Goodwin has not demonstrated any connection
between the claimed constitutional rights violation and Dr. Shahar’s alleged conduct. Nor
has Rev. Goodwin even attempted to connect Dr. Shahar to her more specific claims (i.e.
for injunctive relief, for declaratory relief, for a protective order, etc.).37 Because Rev.

37

Instead of responding to the legal arguments raised by Dr. Shahar’s motion to dismiss, Rev.
Goodwin’s opposition to Dr. Shahar’s motion raises a slew of new factual allegations against Dr. Shahar
and asserts a number of new state and federal law claims. Not only is it inappropriate to raise new facts

18

Goodwin has not carried her burden of establishing the “fairly traceable” requirement for
constitutional standing in connection with her claims against Dr. Shahar, the Court finds
that Rev. Goodwin lacks standing to bring those claims and, because Rev. Goodwin lacks
standing to bring those claims, the Court lacks subject matter jurisdiction to consider those
claims.
Accordingly, IT IS FURTHER ORDERED that Dr. Shahar’s motion to dismiss
Rev. Goodwin’s claims under Rule 12(b)(1) be and hereby is GRANTED. Because the
Court grants Dr. Shahar’s motion to dismiss under Rule 12(b)(1), it need not address Dr.
Shahar’s arguments for dismissal under Rules 12(b)(2) and 12(b)(6).
IT IS FURTHER ORDERED that Rev. Goodwin’s claims against Dr. Shahar be
and hereby are DISMISSED for lack of subject matter jurisdiction.
IV.

Dr. Brian Walker’s Motion to Dismiss38

Dr. Brian Walker has moved to dismiss Rev. Goodwin’s claims pursuant to Rule
12(b)(2), because this Court lacks personal jurisdiction over Dr. Walker, and pursuant to
Rule 12(b)(6), because Rev. Goodwin’s claims, which arise out of treatment rendered by Dr.
Walker to Rev. Goodwin’s late mother on or before September 27, 2007, four years before
Rev. Goodwin filed this lawsuit in October 2011, fall outside the three-year prescriptive
period for medical malpractice actions set forth in Louisiana Revised Statute § 9:6528.39
Dr. Walker’s motion to dismiss was filed on November 27, 2012 and noticed for submission

and assert new claims in an opposition to a motion to dismiss, the Court notes that even after considering
these new allegations and claims, it remains clear that Rev. Goodwin lacks constitutional standing to bring
her claim against Dr. Shahar.
38

R. Doc. 56.

39

In many ways, Dr. Walker’s motion to dismiss echoes Dr. Shahar’s motion to dismiss, as Rev.
Goodwin’s claims against the two doctors are very similar.

19

on December 19, 2012. Rev. Goodwin did not file an opposition to Dr. Walker’s motion by
December 11, 2012, as required by Local Rule 7.5. On December 17, 2012, the Court
ordered Rev. Goodwin to respond to Dr. Walker’s motion no later than December 31, 2012,
and warned that failure to comply with this deadline may result in Dr. Walker’s motion to
dismiss being granted as unopposed.40 To date, Rev. Goodwin has not responded to Dr.
Walker’s motion to dismiss.
Accordingly, IT IS FURTHER ORDERED that Dr. Walker’s motion to dismiss
Rev. Goodwin’s claims against him be and hereby is GRANTED as unopposed.
IT IS FURTHER ORDERED that Rev. Goodwin’s claims against Dr. Walker be
and hereby are DISMISSED.
V.

HANO’s41 Motion to Dismiss42

As did Dr. Shahar, HANO has moved to dismiss Rev. Goodwin’s claim under Rule
12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state
a claim.43 Rev. Goodwin opposed HANO’s motion.44 HANO has filed a reply in further
support of its motion.45
At the outset, the Court notes that it is very difficult to discern from Rev. Goodwin’s

40

R. Doc. 70.

41

“HANO” is short for the Housing Authority of New Orleans.

42

R. Doc. 51.

43

Unlike Dr. Shahar, however, HANO does not move to dismiss for lack of personal jurisdiction
under Rule 12(b)(2). This marks the second motion to dismiss filed by HANO, as it previously moved to
dismiss Rev. Goodwin’s second amended complaint on May 22, 2012. See R. Doc. 28. On March 28, 2013,
the Court denied HANO’s first motion as moot in light of the filing of HANO’s second motion, which is the
motion now before the Court and which supersedes and replaces HANO’s first motion. See R. Doc. 112.
44

R. Doc. 85.

45

R. Doc. 100.

20

second amended complaint what she claims HANO did wrong and what she seeks as a
result of HANO’s alleged wrongdoing. There are certain allegations that could conceivably
be directed at HANO, such as Rev. Goodwin’s prayer that the Court “Change Public
Housing Authorities,” but there are no specific allegations of wrongdoing on the part of
HANO or any basis for liability on the part of HANO in connection with her more general
grievances.46 As was the case with Dr. Shahar, Rev. Goodwin’s failure to demonstrate any
connection between her claims, whether general or specific, and the actions of HANO,
means she has failed to carry her burden of establishing the “fairly traceable” requirement
for constitutional standing.47 As a result, the Court finds Rev. Goodwin lacks standing to
bring her claims against HANO and, because Rev. Goodwin lacks standing to bring those
claims, the Court lacks subject matter jurisdiction to consider those claims.
Accordingly, IT IS FURTHER ORDERED that HANO’s motion to dismiss for lack
of subject matter jurisdiction under Rule 12(b)(1) be and hereby is GRANTED. Because
the Court grants HANO’s motion to dismiss for lack of subject matter jurisdiction, the Court
need not address HANO’s arguments for dismissal for failure to state a claim under Rule
12(b)(6).
IT IS FURTHER ORDERED that Rev. Goodwin’s claims against HANO be and
hereby are DISMISSED.

46

Indeed, in Rev. Goodwin’s opposition to HANO’s second motion to dismiss, she essentially
argues HANO should be liable for actions taken by the Baytown Housing Authority, which Rev. Goodwin
characterizes as HANO’s “counterpart.” Rev. Goodwin also raises a number of new allegations in her
opposition, as she did in her opposition to Dr. Shahar’s motion, but, as was the case with Dr. Shahar’s
motion, even after considering the new allegations raised in Rev. Goodwin’s opposition, the Court remains
convinced that Rev. Goodwin lacks standing to bring her claims against HANO.
47

Also as with Dr. Shahar, the fact that Rev. Goodwin clearly has failed to establish the “fairly
traceable” requirement means the Court need not address whether she is able to establish the other
requirements for constitutional standing.

21

VI.

The Baytown Defendants’48 Motion to Dismiss49

The Baytown Defendants have moved to dismiss Rev. Goodwin’s claims for lack of
personal jurisdiction under Rule 12(b)(2), for improper venue under Rule 12(b)(3), and for
failure to state a claim under Rule 12(b)(6). The Baytown Defendants have also moved, in
the alternative, for a more definite statement under Rule 12(e). Rev. Goodwin opposes the
Baytown Defendants’ motion.50 The Baytown Defendants have filed a reply in further
support of their motion to dismiss.51 Unlike most of her claims, Rev. Goodwin’s claims
against the Baytown Defendants are fairly specific and, in most cases, relatively easy to
understand. However, asserting specific claims against a particular defendant is not, in and
of itself, a sufficient basis for the invocation of federal jurisdiction. For the reasons set forth
below, the Court agrees with the Baytown Defendants that it lacks personal jurisdiction over
them, and for this reason, Rev. Goodwin’s claims against the Baytown Defendants must be
dismissed.
Rule 12(b)(2) allows a defendant to challenge the Court’s exercise of personal
jurisdiction. When a nonresident defendant seeks dismissal for lack of personal jurisdiction
under Rule 12(b)(2), the plaintiff bears the burden of establishing the Court’s jurisdiction
over the defendant, but, unless the Court convenes an evidentiary hearing on the issue, the
plaintiff need only make a prima facie showing that the Court’s exercise of personal
jurisdiction is proper. See Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th

48

The “Baytown Defendants” are the City of Baytown and the Baytown Housing Authority.

49

R. Doc. 58.

50

See R. Doc. 84; R. Doc. 87.

51

R. Doc. 95.

22

Cir.2008); see also Luv N' Care v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir.), cert.
denied, 548 U.S. 904, 126 S.Ct. 2968, 165 L.Ed.2d 951 (2006). As with Rule 12(b)(1) attacks
on the Court’s subject matter jurisdiction, the Court is not restricted to reviewing the
pleadings alone when considering a Rule 12(b)(2) attack on the Court’s personal
jurisdiction over a nonresident defendant; the Court may consider affidavits,
interrogatories, depositions, or any other appropriate method of discovery. Wilson v. Belin,
20 F.3d 644, 648 (5th Cir. 1994); see Jobe v. ATR Mktg., Inc., 87 F.3d 751, 752 (5th
Cir.1996). “In determining whether a prima facie case exists, this Court must accept as true
[the plaintiffs’] uncontroverted allegations, and resolve in [their] favor all conflicts between
the [jurisdictional] facts contained in the parties’ affidavits and other documentation.”
Pervasive Software, Inc. v. Lexware GMBH & Co. KG, 688 F.3d 214, 219–20 (5th Cir.
2012) (quoting Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327, 343 (5th
Cir. 2004) (alterations in original) (quotation omitted)).
“The Court may exercise personal jurisdiction over a nonresident defendant only if
two requirements are satisfied: (1) the forum state’s long-arm statute confers personal
jurisdiction; and (2) the exercise of jurisdiction comports with Due Process.” Phillips v.
ABB Combustion Engineering, Inc., — F. Supp. 2d —, 2013 WL 3010794, at *2 (E.D. La.
2013) (citing Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006)).
“Because the limits of Louisiana’s long-arm statute are co-extensive with the limits of
constitutional due process, the two-part inquiry merges into one: whether this Court's
exercise of jurisdiction over the defendant[] would offend due process.” Id. (citing LA. REV.
STAT. ANN. § 13:3201(B); Luv N' Care, 438 F.3d at 469; Electrosource, Inc. v. Horizon
Battery Techs., Ltd., 176 F.3d 867, 871 (5th Cir. 1999)).
23

“The Due Process Clause protects an individual’s liberty interest in not being subject
to the binding judgments of a forum with which he has established no meaningful ‘contacts,
ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72 (1985)(citing
Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)); see also Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14 (1994). A district court’s exercise of
personal jurisdiction comports with Due Process if the plaintiff shows (1) that the defendant
has purposefully availed itself of the benefits and protections of the forum state by
establishing “minimum contacts” with that state; and (2) that the exercise of personal
jurisdiction does not offend “traditional notions of fair play and substantial justice.” Choice
Healthcare, Inc. v. Kaiser Foundation Health Plan of Colorado, 615 F.3d 364, 367 (5th Cir.
2010) (citations omitted). “The ‘minimum contacts' prong of the two-part test may be
further subdivided into contacts that give rise to ‘general’ personal jurisdiction and ‘specific’
personal jurisdiction.” Choice Healthcare, Inc., 615 F.3d at 368. “Regardless of whether
the lawsuit is related to the defendant’s contacts with the forum, courts may exercise
general jurisdiction over any lawsuit brought against a defendant that has substantial,
continuous, and systematic general contacts with the forum state.” Phillips, 2013 WL
3010794, at *2 (citing Seiferth, 472 F.3d at 271). “If, on the other hand, a defendant has
relatively few contacts, a court may still exercise specific jurisdiction ‘in a suit arising out
of or related to the defendant's contacts with the forum.’” Id. (internal quotation marks
omitted). “General jurisdiction focuses on incidents of continuous activity within the
disputed forum; specific jurisdiction is more constrained by virtue of a very limited nexus

24

with the forum.”52 Id.
Rev. Goodwin has failed to carry her burden of making a prima facie showing that
this Court may properly exercise general or specific personal jurisdiction over the Baytown
Defendants. There is certainly no indication the Baytown Defendants have “substantial,
continuous, and systematic general contacts” with this state, and in fact, none of Rev.
Goodwin’s claims against the Baytown Defendants has anything to do with this state. As
a result, Rev. Goodwin has not shown the Baytown Defendants have the requisite
“minimum contacts” with the state of Louisiana for this Court’s exercise of personal
jurisdiction over those defendants to comport with Due Process. Because the Court lacks
personal jurisdiction over the Baytown Defendants, the Court dismisses Rev. Goodwin’s
claims against those defendants pursuant to Rule 12(b)(2).
Accordingly, IT IS ORDERED that the Baytown Defendants’ motion to dismiss for
lack of personal jurisdiction under Rule 12(b)(2) be and hereby is GRANTED. Because
the Court dismisses Rev. Goodwin’s claims against the Baytown Defendants under Rule
12(b)(2), it need not consider the Baytown Defendants’ arguments for dismissal under
Rules 12(b)(3) or 12(b)(6) or their alternative arguments for a more definite statement
under Rule 12(e).
IT IS FURTHER ORDERED that Rev. Goodwin’s claims against the Baytown

52

If a plaintiff demonstrates minimum contacts between the defendant and the forum state, then
the Court may exercise personal jurisdiction unless the defendant makes a “compelling case” that the
exercise of personal jurisdiction is nevertheless unfair or unreasonable. Burger King, 471 U.S. at 477. In
determining whether the exercise of jurisdiction is fair and reasonable, the Court considers the following
factors: “(1) the burden on the non-resident defendant; (2) the interests of the forum state; (3) the
plaintiff's interest in obtaining relief; (4) the interstate judicial system's interest in the most efficient
resolution of controversies; and (5) the shared interests of the several states in furthering fundamental
social policies.” Phillips, 2013 WL 3010794, at *3 (citing Nuovo Pignone, 310 F.3d at 382). Because Rev.
Goodwin has not demonstrated minimum contacts between the Baytown Defendants and the forum state,
the Court need not address these factors.

25

Defendants be and hereby are DISMISSED.
VII.

The HUD Defendants’53 Motion to Dismiss54

The HUD Defendants have moved to dismiss Rev. Goodwin’s claims under Rule
12(b)(5) and Rule 4(m) for insufficient service of process. The HUD Defendants argue Rev.
Goodwin failed to properly serve a copy of her second amended complaint and that such
failure should result in the dismissal of Rev. Goodwin’s claims. Rev. Goodwin opposes the
HUD Defendants’ motion.55
Rule 4 governs service of process in federal court. Rule 4(a) provides a checklist of
items that must be contained in a summons, and Rule 4(b) provides for issuance of
summons. Rule 4(c)(1) provides the basic rule that a summons must be served with a copy
of the complaint and within the time allowed by Rule 4(m). U n d e r R u l e 4 ( d ) , a n
individual may waive service of process, obviating the need for personal service. Under
Federal Rule of Civil Procedure 4(e), service on an individual who has not waived service
is perfected in one of the following ways:
(1)

[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; or

(2)

[by] doing any of the following:

53

The “HUD Defendants” are various officials within the United States Department of Housing
and Urban Development (“HUD”): Tony Hebert, Fred Tombar, Daniel Rodriguez, and Debra Alexander.
Mr. Hebert, Mr. Tombar, and Mr. Rodriguez were all sued in both their official capacity and their
individual capacity. Ms. Alexander was sued in her official capacity only. Several other HUD officials were
also named as defendants in Rev. Goodwin’s second amended complaint, but, with the exception of Kelly
Dorfman, those HUD officials have all been dismissed as defendants. Furthermore, as explained above,
Rev. Goodwin has not perfected service on Ms. Dorfman. Rev. Goodwin also sued HUD itself, but HUD
has been dismissed as a defendant.
54

R. Doc. 63.

55

R. Doc. 69; see also R. Doc. 89.

26

(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.

Rule 4(i) provides special rules for service on the United States and its officers. Rule 4(i)(1)
requires service on the United States to be effected by delivery or sending a copy by
registered or certified mail of the summons and the complaint to the United States Attorney
for the district where the action is brought and sending a copy by registered or certified
mail to the Attorney General of the United States in Washington, D.C. Rule 4(i)(2) states
the requirement for service on a United States officer sued in his or her official capacity:
To serve . . . a United States officer or employee sued only in an
official capacity, a party must serve the United States and also
send a copy of the summons and of the complaint by registered
or certified mail to the agency, corporation, officer, or
employee.
Rule 4(i)(3) states the requirement for service on a United States officer sued in his or her
individual capacity:
To serve a United States Officer or employee individually sued
in an individual capacity for an act or omission occurring in
connection with duties performed on the United States’ behalf
(whether or not the officer or employee is also sued in an
official capacity), a party must serve the United States and also
serve the officer or employee under Rule 4(e), (f), or (g).
Strict compliance with the service requirements contained in Rule 4 is mandatory, in part
because, absent proper service, the Court lacks personal jurisdiction over a defendant. See
27

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51 (1999); see also
Philipp Bros. (Cocoa), Inc. v. M/V Ocea, 144 F.R.D. 312, 314 (E.D. Va. 1992).
Under Rule 12(b)(5), a defendant may seek dismissal of a plaintiff’s claims based on
insufficient service of process. Rule 4(m) also permits a district court to dismiss a case
without prejudice if a plaintiff fails to comply with Rule 4’s service requirements. See Millan
v. USAA Gen. Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008). Rule 4(m) further provides,
however, that “if the plaintiff shows good cause for the failure, the court must extend the
time for service for an appropriate period.” Ordinarily, “[p]ro se litigants are allowed more
latitude than litigants represented by counsel to correct defects in service of process and
pleadings.” Moore v. Agency for Intern. Development, 994 F.2d 874, 876 (D.C. Cir. 1993).
Whether to dismiss a case for insufficient service of process or extend the time for service
is left to the district’s court’s discretion. See Holly v. Metro. Transit Auth., 213 F. App’x
343, 344–45 (5th Cir. 2007) (unpublished).
The HUD Defendants are all officers/employees of the United States. Tony Hebert,
Fred Tombar, and Daniel Rodriguez are sued in their individual capacities as well as their
official capacities. Deborah Alexander is sued in her official capacity only. There is no proof
that any of the individual HUD Defendants waived service of process. As a result, Rev.
Goodwin was required to comply with Rules 4(e) and 4(i) in serving her second amended
complaint. While Rev. Goodwin clearly thinks she has complied with those rules, the
record does not reflect that she has.56 Instead, Rev. Goodwin served on the individual HUD

56

Rev. Goodwin’s efforts have, at least, put the HUD Defendants on notice of this suit and Rev.
Goodwin’s second amended complaint. However, providing actual notice of a complaint is not a substitute
for strict compliance with Rule 4. See Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir. 1988) (“The
defendant's actual notice of the litigation . . . is insufficient to satisfy Rule 4’s requirements.”).

28

Defendants a summons and a copy of her motion for leave to file her second amended
complaint. She did not effect by delivery by sending a copy by registered or certified mail
of the second amended complaint on the United States Attorney General or the United
States Attorney for the Eastern District of Louisiana. Nor did she send a copy of the second
amended complaint by registered or certified mail to any of the individual HUD Defendants
or comply with Rule 4(e) as it pertains to service on nonresident individuals in attempting
to serve a copy of that second amended complaint.
As a result, the HUD Defendants correctly state that Rev. Goodwin has not complied
with Rule 4 as it pertains to service on officers/employees of the United States sued in their
official and individual capacities. The Court disagrees, however, that Rev. Goodwin’s failure
to comply with the technical requirements of Rule 4 should result in the dismissal of her
claims against the HUD Defendants. The Court, in its discretion, will allow Rev. Goodwin
one final chance to perfect service on the HUD Defendants and fully comply with Rule 4.
Accordingly, IT IS FURTHER ORDERED that the HUD Defendants’ motion to
dismiss Rev. Goodwin’s claims under Rule 12(b)(5) be and hereby is DENIED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that Rev. Goodwin shall perfect service on the HUD
Defendants no later than August 15, 2013, at 5:00 p.m., and she shall file into the
record proof of such service no later than August 22, 2013, at 5:00 p.m. Absent
exceptionally good cause, the Court will not extent this deadline and, should Rev. Goodwin
fail to comply with this deadline by perfecting service on each of the HUD Defendants and
filing proof of such service into the record, any or all of the HUD Defendants are free to reurge their Rule 12(b)(5) motion to dismiss for insufficient service of process. In the event
29

Rev. Goodwin fails to perfect service by this deadline and the HUD Defendants wish to reurge their Rule 12(b)(5) motion, such motion shall be filed and served no later than August
30, 2013, at 5:00 p.m.
In the event Rev. Goodwin timely perfects service on the HUD Defendants and the
HUD Defendants wish to file another Rule 12 motion, such motion shall be filed and served
no later than August 30, 2013, at 5:00 p.m. If Rev. Goodwin timely perfects service on
the HUD Defendants and the HUD Defendants do not intend to file another Rule 12
motion, the HUD Defendants’ answer to Rev. Goodwin’s second amended complaint shall
be filed and served no later than August 30, 2013, at 5:00 p.m.
VIII. Show Cause Order to the City of New Orleans and Stephen Don
Carlos
Finally, the record reflects the following defendants have been served with copies of
Rev. Goodwin’s second amended complaint but have failed to answer or otherwise respond
to that complaint: (1) the City of New Orleans, Louisiana57 (the “City”) and (2) Stephen Don
Carlos (“Mr. Carlos”).58 Rev. Goodwin has not moved for entry of default against the City
or Mr. Carlos.
IT IS FURTHER ORDERED that the City and Mr. Carlos shall file each respond
to Rev. Goodwin’s second amended complaint no later than August 15, 2013, at 5:00
p.m. or show good cause why either should not be required to do so. Responsive pleadings
must be received by the Clerk’s Office for the Eastern District of Louisiana by this deadline
to be considered timely filed.

57

See R. Doc. 46.

58

See R. Doc. 65-6.

30

Failure to comply with this deadline may result in sanctions.

25th
New Orleans, Louisiana, this ____ day of July, 2013.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
Court to Notify:
All named parties by regular and certified mail, including:
(1)

The City of New Orleans, through Sharonda Williams, City Attorney, City
of New Orleans, 1300 Perdido St., New Orleans, LA 70112; and

(2)

Stephen Don Carlos, Mayor, City of Baytown, 2401 Market St., Baytown,
TX 77522.

31