Wang v. Mutual of Omaha et al

Filing 9

ORDER & REASONS granting in part 6 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRUCE WANG

CIVIL ACTION

VERSUS

NO. 15-1382

MUTAUL OF OMAHA, ET AL.

SECTION "B"(5)
ORDER AND REASONS

I.

NATURE OF THE MOTION AND RELIEF SOUGHT
Before the Court is a Fed. R. Civ. P. 12(b)(6) Motion to

Dismiss for Failure to State a Claim (upon which relief can be
granted),

or

in

the

Definite

Statement

Company,

Kathy

Joshua

alternative,

12(e)

Defendants,

Mutual

by

Wilber,

Fargnoli.1

Local

Michael
Rule

Joseph

7.5

of

Motion
of

Omaha

Fargnoli

the

for

Eastern

a

More

Insurance

and

Michael

District

of

Louisiana requires that memoranda in opposition to a motion be
filed

eight

days

prior

to

the

date

set

for

hearing

on

the

motion. No memorandum in opposition to the pending motion, which
was set for hearing on June 10, 2015, was submitted. District
Courts may grant an unopposed motion as long as the motion has
merit. Accordingly, and for the reasons enumerated below,
IT IS ORDERED that the Motion to Dismiss pursuant to Fed.
R. Civ. P. 12(b)(6) is GRANTED, in part. Plaintiff’s federal
claim arising under Title VII of the Civil Rights Act of 1964 is
1

Rec. Doc. No. 6.

1

hereby dismissed for failure to state a claim upon which relief
can be granted. The Court declines to exercise its supplemental
jurisdiction over the state law claims, dismissing them without
prejudice.
II.

FACTS AND PROCEDURAL BACKGROUND
The factual circumstances and basis for the instant action

are largely unclear.

A related action, Thomas D’Aquin and Bruce

Chia Wang v. Mutual of Omaha, et al., Civil Action No. 15-634,
was

dismissed

by

this

Court

for

lack

of

subject

matter

jurisdiction.2 Plaintiff here, Bruce Wang (“Wang”), refiled his
action against Mutual of Omaha, Michael Joseph Fargnoli, Michael
Joshua Fargnoli, Kathy Wilber, and the Louisiana Department of
Insurance

(“Defendants”).

Wang

also

refers

to

Louisiana

law

firm, Boggs Loehn & Rodrigue, as a defendant in this action.3
It
Fargnoli

appears
Agency

Wang

sues

(“Agency”)

them
and

because

Defendants

he

worked

“without

for
notice

the
or

reason terminated his contract in a secretive manner.”4 Wang had
resigned from Branch Manager; however, continued his contract as
an Agent which “enable[d] him to retain his residuals which was

2

Civil Action No. 15-634, Rec. Doc. No. 23.
Rec. Doc. No. 1 at 4. Here, as in Civil Action No. 15-634, diversity jurisdiction cannot be established. Plaintiff is a
citizen of Louisiana. The presence of Boggs, Loehn & Rodrigue, LLC as a defendant in this lawsuit defeats the
requisite complete diversity. The Louisiana Department of Insurance, is considered a citizen of Louisiana for
diversity jurisdiction purposes. The Court addresses the motion to the extent that subject matter jurisdiction is
predicated on federal question jurisdiction, 28 U.S.C. § 1331.
4
Rec. Doc. No. 1 at 1.
3

2

100,000 per year.”5 Following termination, Wang received a Notice
of

Separation;

however,

it

appears

he

did

not

receive

any

information regarding the termination. Wang seeks residuals for
his wrongful termination in the amount of $2,000,000 ($100,000
over the course of an expected 20 year career).6 Further, Wang
claims he was illegally “charged back” while not being paid and
consequently seeks damages for violations of his “Civil Rights
of

VII.”7

Title

engaged

in

Next,

fraudulent

Wang

claims

business

that

the

practices

Fargnoli

by

Agency

“continuing

to

discredit Mr. Wang by contacting his clients and saying he was
no longer with them.”8 According to Wang, this was untrue because
at the time, he acted as a broker and had a valid contract.9
Lastly,
Department

of

Wang

claims

Insurance

that

the

(“LOI”)

Agency

defrauded

and

the

insured

Louisiana
persons.

A

federal court must, where necessary, raise the issue of Article
III constitutional standing sua sponte. Ford v. NYLCare Health
Plans of Gulf Coast, Inc., 301 F.3d 329, 331 (5th Cir. 2001).
“[W]here a party attempts to enforce claims rightfully belonging
to

another,

their

claims

must

be

dismissed

for

lack

of

standing.” Grows v. Turner Indus. Group, LLC, Civil Action No.
13-2806, 2013 WL 6072721, at *2 (E.D. La. Nov. 18, 2013) (citing
5

Rec. Doc. No. 1 at 1.
Rec. Doc. No. 1 at 2.
7
Rec. Doc. No. 1 at 2.
8
Rec. Doc. No. 1 at 2.
9
Rec. Doc. No. 1 at 2.
6

3

Allen v. Wright, 468 U.S. 737, 751 (1984)); see also Warth et
al. v. Seldin et al., 422 U.S. 490, 499 (1975) (a party “must
assert his own legal rights and interests, and cannot rest his
claim

to

relief

parties.”).

on

the

legal

to

the

Central

rights

or

standing

interests

of

requirement

is

third
the

prerequisite that a claimant assert their own legal interests,
and not the legal rights of other persons.

As Wang alleges

fraud committed against third parties, the Court must dispose of
his fraud claim.
Defendants move the Court to dismiss the Complaint, arguing
that it fails to state a cause of action upon which relief can
be

granted.

definite

In

the

alternative,

statement,

as

it

is

Defendants

vague

and

request

ambiguous.

a

more

Further,

Defendants urge that this latest filing constitutes an abuse of
process,

and

Wang

should

be

sanctioned

for

the

successive

filings.
III.

LAW AND ANALYSIS
a. Fed. R. Civ. P. 12(b)(6) Standard for Dismissal
Federal

Rule

of

Civil

Procedure

12(b)(6)

allows

for

dismissal of an action “for failure to state a claim upon which
relief can be granted.” While a complaint attacked by a Rule
12(b)(6) motion need not contain detailed factual allegations,
in order to avoid dismissal, the plaintiff’s factual allegations
4

must “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim has
facial plausibility when the plaintiff pleads factual content
that allows a court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id.
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007).
In determining whether a plaintiff has pled factual allegations
to state a claim that is plausible, the Court may not evaluate
the

plaintiff’s

likelihood

of

success

but

must

construe

the

complaint liberally and accept all of the plaintiff’s factual
allegations in the complaint as true. See In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2009); see also
Twombly, 550 U.S. at 555 (factual allegations, which taken as
true,

must

be

enough

to

raise

a

right

to

relief

above

the

speculative level, even if doubtful in fact).
b. Whether the Original Complaint States Claims upon
which Relief can be Granted
Title VII Claim
Plaintiff has asserted a single federal claim under the
1964 Civil Rights Act, Title VII. Title VII provides a remedy
for race, national origin, sex, and/or religion discrimination

5

in

employment.

42

U.S.C.

§

2000e-2.

However,

“[e]mployment

discrimination plaintiffs must exhaust administrative remedies
before pursuing claims in federal court.”

Taylor v. Books

A

Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). A plaintiff
meets this requirement if he (1) files a timely charge with the
Equal

Employment

right

to

sue

Opportunity

letter.

Id.

Commission;

Each

Title

and

VII

(2)

receives

requirement

is

a
a

prerequisite to federal subject matter jurisdiction. See Filer
v. Donley, 690 F.3d 643, 648 (5th Cir. 2012)(Jones, J.).
There is no evidence in the record that Wang has exhausted
his administrative remedies. However, neither the Supreme Court
nor the Fifth Circuit sitting en banc has addressed the effect
of a Title VII plaintiff’s failure to exhaust administrative
remedies. In Pinkard v. Pullman-Standard, a Div. Of Pullman,
Inc., the earliest panel decision on this issue, the court held
that receipt of a right-to-sue letter is a condition precedent
subject to equitable modification, rather than a jurisdictional
prerequisite, which if not satisfied deprives federal courts of
subject

matter

jurisdiction.

678

F.2d

1211,

1215

(5th

Cir.

1982); see also Julian v. City of Hous., Tex., 314 F.3d 721, 725
n. 3 (2002)(“Our Title VII cases hold that ‘receipt of a rightto-sue letter is not jurisdictional but a condition precedent
subject to equitable modification.’”)(quoting McKee v. McDonnell

6

Douglas Technical Servs. Co., Inc., 705 F.2d 776, 777 n. 2 (5th
Cir. 1983)).
The Court finding that Wang fails to state a claim under
Title

VII,

conflict.

finds

The

employment
predicated

it

facts,

unnecessary
accepted

discrimination
on

an

to

as

resolve

true,

claim.
“charge

illegal

The

do

back.”

this
not

Title

support

an

claim

is

VII

Title

potential

VII

is

only

applicable against employers. Grant v. Lone Star Co., 21 F.3d
649, 652 (5th Cir. 1994). Plaintiff has not alleged that the
Fargnoli
either:

Agency
(1)

engaged

failing

discriminating

against

or

in

unlawful

refusing

him

with

to

employment
hire

respect

practices

by

him

to

or

otherwise

his

compensation,

terms, conditions, or privileges of employment; or (2) limiting,
segregating, or classifying Plaintiff, on the basis of his race,
color, religion, sex or national origin. See 42 U.S.C. § 2000e2(a). The linchpin for a claim arising under Title VII is the
requisite

discrimination,

which

Plaintiff

does

not

allege.

Plaintiff fails to state a claim under Title VII, therefore
dismissal is proper.
Pendent State Law Claims: Wrongful Termination and Unfair Trade
(Business) Practices

Pursuant to 28 U.S.C. 1367(C)(3), this Court may decline to
exercise

supplemental

jurisdiction

if

it

has

“dismissed

all
7

claims over which it has original jurisdiction.” This Court has
no original jurisdiction over Plaintiffs' state law tort claims.
Plaintiff knowingly risked dismissal of these claims when he
filed suit in federal district court and invoked the Court's
discretionary supplemental jurisdiction power.
When

a

matter

is

still

in

the

pleadings

stages

of

litigation, the general rule is to dismiss pendent state claims
if

all

the

Gronwaldt,

federal
155

claims

F.3d

507,

are
519

dismissed.
(5th

See

McClelland

Cir.1998)(citing

Wong

v.
v.

Stripling, 881 F.2d 200, 204 (5th Cir.1989)); cf. Batiste v.
Island

Records

Inc.,

179

F.3d

217,

227-28

(5th

Cir.

1999)

(holding that the district court did abuse its discretion by
dismissing pendant

state

law

claims

when the case had moved

beyond the pleadings, substantial discovery had taken place, and
trial

was

one

month

away).

Here,

it

is

undisputed

that

no

discovery has taken place in this matter and the litigation is
still in the pleadings stage.
“Although failure to respond to a motion will be considered
a statement of no opposition, this Court is not required to
grant every unopposed motion.” Edward H. Bohlin Co., Inc. v.
Banning Co., Inc., 6 F.3d 350, 355–56 (5th Cir. 2003). Rather,
after considering the record and the applicable law, this Court
will grant unopposed motions that have merit. See John v. State
8

of La (Bd. of Trustees for State Colleges and Universities), 757
F.2d 698, 709 (5th Cir. 1985). With an insufficient record and
information before it to adequately assess the merits of the
state law claims, the Court declines to exercise supplemental
jurisdiction

over

these

state

law

claims,

dismissing

them

without prejudice.
IV.

CONCLUSION
Accordingly, and for the reasons enumerated above,
IT IS ORDERED that the Motion to Dismiss pursuant to Fed.

R. Civ. P. 12(b)(6) be GRANTED, in part. Plaintiff’s federal
claim arising under Title VII of the Civil Rights Act of 1964 is
hereby dismissed for failure to state a claim upon which relief
can be granted. The Court declines to exercise its supplemental
jurisdiction over the state law claims, dismissing them without
prejudice.
The Court cautions Plaintiff to familiarize himself with
Rule 11 of the Federal Rules of Civil Procedure, as well as the
concepts of claim preclusion. The plaintiff is also admonished
that, should he file another complaint under Title VII in this
Court,

against

these

same

defendants,

which

is

found

to

be

without jurisdictional basis, he may be cast with costs and
attorney's fees, and sanctioned appropriately.

9

IT IS FURTHER ORDERED that all future pleadings, petitions,
or

complaints,

whether

pro

se

or

through

counsel,

shall

be

verified by Plaintiff prior to submission and filing with the
United

States

District

Court

for

the

Eastern

District

of

Louisiana, and that he shall include with every future complaint
or pleading to be filed a list of all causes previously filed on
that same, similar, or related causes of action and include
therein a brief statement regarding the Court's ruling in that
previous action.

New Orleans, Louisiana, this 11th day of June, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

10