Glover v. Auction.com et al

Filing 18

ORDER AND REASONS granting 16 Motion to Dismiss for Failure to State a Claim filed by defendant Auction.com. Signed by Judge Ivan L.R. Lemelle on 11/2/2015. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RODNEY J. GLOVER

CIVIL ACTION

VERSUS

NO. 15-2832

AUCTION.COM, ET AL.

SECTION "B"(3)
ORDER AND REASONS

I.

NATURE OF THE MOTION AND RELIEF SOUGHT
Before the Court is a Rule 12(b)(6) Motion to Dismiss (Rec.

Doc.

No.

16)

“Defendant”).
Rodney

Glover

filed
Defendant

by

Defendant

contends

(hereinafter

Auction.com

that

all

“Plaintiff”

claims

or

(hereinafter
asserted

“Glover”)

by

against

Auction.com should be dismissed in their entirety. Plaintiff,
representing himself pro se, failed to file a response.
IT IS ORDERED that Defendant’s Motion to Dismiss is GRANTED.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of Plaintiff’s attempt to purchase
property located at 4313 Woodland Dr. in New Orleans, Louisiana
through an online auction. Plaintiff initially filed suit on July
21,

2015

against

Auction.com

and

four

other

defendants:

the

Sewerage and Water Board of New Orleans, the Orleans Parish
Sheriff’s

Office,

Fannie

Mae,

and

the

New

Orleans

Police

Department. (Rec. Doc. No. 1). However, this Motion only concerns
Auction.com. Jurisdiction is proper pursuant to 28 U.S.C. §1331
and 28 U.S.C. §1367.
1

Plaintiff alleges that he won the online auction with a bid
of $28,000 on February 12, 2014. (Rec. Doc. No. 1 at 1). Three
days

later,

Plaintiff

allegedly

signed

a

$30,500

purchase

contract, consisting of the price plus closing fees, with the
seller, Fannie Mae. (Rec. Doc. No. 1 at 1). Thereafter, on March
17, Plaintiff claims that he wired $31,000 to PNC Bank, which was
identified by Service Link, LLC (the Title Company) as the seller’s
bank.1 (Rec. Doc. No. 1 at 1). Plaintiff also claims that another
purchase agreement was signed on that day.2 (Rec. Doc. No. 1 at
1).
Approximately
ServiceLink

two

notified

him

days
of

later,
an

Plaintiff

alleged

error

claims
in

the

that
HUD-1

Settlement Statement in the amount of $1,400. (Rec. Doc. No. 1 at
1). Plaintiff contends that he asked for documentation of the error
in the Settlement Statement but received only a verbal notification
that the error concerned line item 106—Property Taxes. (Rec. Doc.

Throughout Plaintiff’s complaint, he seems to use the names Auction.com and
Servicelink, LLC interchangeably. At one point he refers to ServiceLink as an
agent of Auction.com, and at another point, he refers to them as the same
company, with one name being used for “front end” aspects of real estate
transactions and another name used for “back end” aspects. Defendant,
Auction.com, requests that this Court take judicial notice of the fact that
ServiceLink, LLC and Auction.com are distinct legal entities. Pursuant to
Federal Rule of Evidence 201(c)(2) and the supporting documentation provided
by Defendant, this Court must, and does, take judicial notice of the fact
that ServiceLink and Auction.com are distinct legal entities. Even so,
Plaintiff still alleges that ServiceLink acted as the agent of Auction.com
throughout its dealings with Plaintiff. Taking Plaintiff’s allegations as
true solely for the purpose of this Motion to Dismiss, and applying the
leniency granted to pro se litigants, all allegations made by Plaintiff
against ServiceLink are imputed to Auction.com.
2 The document referred to here by Plaintiff is seemingly the deed that is at
the forefront of much of this litigation.
1

2

No. 1 at 2). It is unclear exactly what documentation Plaintiff
sought (as he possessed a copy of the Settlement Statement) and
why

the

verbal

notification

was

insufficient.

In

any

event,

Plaintiff disagreed with the alleged error despite having signed
the document. (Rec. Doc. No. 16-2 at 10). Supposedly, either
Auction.com or ServiceLink then terminated the March 17th purchase
agreement because of the issue with the HUD-1 statement. (Rec.
Doc. No. 1 at 2).
Plaintiff repeatedly asserts that Defendant’s stated ground
for never fully consummating the transaction was the error within
the Settlement Statement. (Rec. Doc. No. 1 at 2). However, he fails
to acknowledge the more apparent issue: that due to the alleged
mistake in the Settlement Statement, ServiceLink claimed that he
owed

an

additional

Nevertheless,

$1,400,

Plaintiff

which

contends

he

that

refused
no

grounds

to

tender.

exist

for

terminating the purchase agreement, as issues with the Settlement
Statement

should

be

resolved

through

“normal

binding

dispute

procedures of HUD-1 errors and omissions.” (Rec. Doc. No. 1 at 2).
For months, Plaintiff continually demanded that ServiceLink
record

the

deed

to

the

property.

(Rec.

Doc.

No.

1

at

2).

ServiceLink apparently refused on the grounds of the remaining
issue with the HUD-1 Settlement Statement and outstanding funds.
See (Rec. Doc. No. 1 at 2). Furthermore, Plaintiff contends that
ServiceLink

and/or

Auction.com

destroyed
3

the

deed,

making

it

impossible for them to record it. (Rec. Doc. No. 1 at 2). State
court litigation ensued.
On October 22, 2014, Plaintiff filed a petition in state court
requesting that the court order ServiceLink to record the deed
with the City of New Orleans. (Rec. Doc. No. 16-2 at 5). On March
13, 2015, the court granted ServiceLink’s Motion for Summary
Judgment and dismissed Glover’s lawsuit. (Rec. Doc. No. 16-2 at
7). There is also a pending state court lawsuit filed by Fannie
Mae against Glover. (Rec. Doc. No. 16-2 at 8-17). Evidently, Glover
recorded a copy of the deed himself, which allowed him to gain
access to the property, turn on the utilities, and ultimately rent
out the property to a third party. (Rec. Doc. No. 16-1 at 6). On
January 2, 2015, Glover was apparently arrested for this activity.
After learning of this sequence of events, Fannie Mae filed suit
to clear the instrument recorded by Glover from the records. (Rec.
Doc. No. 16-2 at 8-17). This lawsuit remains pending. Mr. Glover
now seeks relief in federal court.
III. THE PARTIES’ CONTENTIONS
In his complaint, Glover seems to assert five separate claims
against Auction.com: (1) intentionally destroying public documents
in violation of 18 U.S.C. §2071; (2) failing to maintain real
estate documents for at least five years in violation of Louisiana
Real Estate Commission rules; (3) defamation in the form of slander
and libel by presenting false reasons for refusing to record the
4

property deed; (4) discrimination against Plaintiff because he is
African-American;

and

(5)

violation

of

the

privacy

act

by

disclosing private information to outside parties who were not
involved with the transaction. (Rec. Doc. No. 1 at 3-5).
Auction.com’s Motion to Dismiss responds to each claim in
turn. First, Auction.com contends that Plaintiff’s first claim
should be dismissed because there is no private right of action
under

18

U.S.C.

Auction.com
Louisiana

§2071.

asserts

Real

(Rec.

that

Estate

Doc.

there

is

Commission

No.
no

rules

16-1

at

9).

rule

under

or

relevant

Second,

either

the

Louisiana

statutes that provides Glover a cause of action for Auction.com’s
alleged failure to maintain the deed for five years. (Rec. Doc.
No. 16-1 at 10). Third, with respect to defamation, Auction.com
contends that Glover’s allegations do not satisfy the elements of
libel

because

he

does

not

allege

any

statement

against

the

Defendant in print, writing, pictures, or signs. (Rec. Doc. No.
16-1 at 11). Additionally, Defendant contends that the allegations
do not meet the elements for slander either, because Glover does
not allege actual malice, he does not claim that the statements
caused

him any damage, and the statements allegedly made by

Auction.com were in fact true. (Rec. Doc. No. 16-1 at 11-12).
Fourth, Auction.com argues that, while Glover provides no
specific legal basis for his discrimination claim, his allegations
cannot support a discrimination claim on any conceivable basis.
5

(Rec. Doc. No. 16-1 at 12-14). Finally, Auction.com asserts that
Glover’s claim under the Privacy Act fails because the Privacy Act
only authorizes lawsuits against federal agencies. (Rec. Doc. No.
16-1 at 14). Moreover, the complaint lacks any specifics as to
what private information was disclosed and to whom Auction.com
allegedly disclosed it. (Rec. Doc. No. 16-1 at 14-15). For these
reasons, Auction.com seeks to have all claims against it dismissed.
Glover failed to

file a response to Auction.com’s Motion to

Dismiss, and thus, the adequacy of his claims will be judged on
the complaint alone.
IV.

LAW AND ANALYSIS

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
a party can move to dismiss a complaint for failure to state a
claim upon which relief can be granted. Such motions are viewed
with disfavor and rarely granted. Lowrey v. Tex. A & M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th
Cir. 1982)). When reviewing a motion to dismiss, courts must accept
all well-pleaded facts as true and view them in the light most
favorable to the non-moving party. See Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996).
“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.” Gonzales v. Kay, 577 F.3d
6

600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)) (internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Iqbal, 556 U.S.

at 678.

However, pro se complaints are “construed liberally,” Johnson v.
Watkins, 999 F.2d 99, 100 (5th Cir. 1993), and they are “held to
less

stringent

standards

than

formal

pleadings

drafted

by

lawyers.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th
Cir. 2002) (quoting Miller v. Stanmore, 636 F.2d 986, 987 (5th
Cir.

1981)).

Nevertheless,

“conclusory

allegations

or

legal

conclusions masquerading as factual conclusions will not suffice
to

prevent

a

motion

to

dismiss.”

Id.

(quoting

S.

Christian

Leadership Conference v. Supreme Court of Louisiana, 252 F.3d 781,
786 (5th Cir. 2001)).
It is under these standards that Glover’s complaint will be
assessed, beginning with his first claim that Auction.com violated
18 U.S.C. §2071 by destroying the deed.
a. 18 U.S.C. §2071
In his complaint, Glover alleges that Auction.com “violated
US Code 2011-Title 18-Sec 2071 by intentionally destroying public
documents.” (Rec. Doc. No. 1 at 3). 18 U.S.C. §2071 provides:
(a)

Whoever willfully and unlawfully conceals, removes,
mutilates, obliterates, or destroys, or attempts to
do so, or with intent to do so takes and carries
7

away any record, proceeding, map, book, paper,
document, or other thing, filed or deposited with
any clerk or officer of any court of the United
States, or in any public office, or with any
judicial or public officer of the United States,
shall be fined under this title or imprisoned not
more than three years, or both.
(b)

Whoever, having the custody of any such record,
proceeding, map, book, document, paper, or other
thing, willfully and unlawfully conceals, removes,
mutilates, obliterates, falsifies, or destroys the
same, shall be fined under this title or imprisoned
not more than three years, or both; and shall
forfeit his office and be disqualified from holding
any office under the United States. As used in this
subsection, the term “office” does not include the
office held by any person as a retired officer of
the Armed Forces of the United States.

(emphasis added). While the statute undoubtedly prohibits the
act of destroying certain records, it only creates criminal
penalties for the prohibited acts. It does not create a private
right of action for individuals such as Mr. Glover. See Dugar
v. Coughlin, 613 F. Supp. 849, 852 n.1 (S.D.N.Y. 1985) (noting
that 18 U.S.C. §2071, among other sections of Title 18, does
not provide a civil right of action); In re Visser, 968 F.2d
1319, 1323 (D.D.C. 1992) (noting that 18 U.S.C. §2071 provides
for federal felonies). Accordingly, Defendant correctly asserts
that Plaintiff’s claim under 18 U.S.C. §2071 must be dismissed
as it does not state a claim on which relief can be granted.
b. Louisiana Real Estate Commission Rules
Plaintiff contends that Auction.com violated Louisiana Real
Estate Commission rules by not maintaining real estate documents
8

for a period of five years. While Plaintiff’s complaint does not
specify a precise rule that Auction.com violated, a review of the
rules

and

Commission

regulations
reveals

only

adopted
one

by

rule

the
to

Louisiana
which

Real

Plaintiff

Estate
may

be

referring.
Under La. Admin. Code tit. 46, pt. LXVII, §5727, “[e]very
developer shall retain, for at least five years, readily available
and properly indexed copies of all documents which in any way
pertain to the sale or solicitations of timeshare interests in
which he has acted as a developer.” However, §5727 cannot provide
Plaintiff with the relief he seeks. First, §5727 does not apply to
Auction.com because the company did not develop the property in
question. It simply brokered the alleged sale between Fannie Mae
and Glover. Moreover, §5727 specifically states its application to
“the sale or solicitation of timeshare interests,” which have no
relevancy to the contemplated transaction. Here, Glover sought to
purchase

property

outright

rather

than

simply

purchase

a

timeshare. Accordingly, §5727 does not apply in this case.
Even if some rule or regulation passed by the Louisiana Real
Estate Commission did apply to this exact situation, nothing within
those rules and regulations appears to create a private right of
action. Section 101 merely states that “any violation of these
rules or regulations, or of any real estate licensing law, shall
be sufficient cause for any disciplinary action permitted by law.”
9

La.

Admin.

Code

tit.

46,

pt.

LXVII,

§101

(emphasis

added).

Considering that these rules are located within the Title covering
Professional and Occupational Standards, it appears clear that
they

are

designed

as

grounds

for

disciplining

real

estate

professionals in order to maintain the integrity of the profession.
They

do

not

appear

designed

to

facilitate

civil

litigation.

Consequently, Glover’s claim based on the Louisiana Real Estate
Commission rules must be dismissed.
c. Slander and Libel
Plaintiff alleges that Auction.com committed slander and
libel by making false statements to public agencies when responding
to questions regarding the real estate transaction with Mr. Glover.
Specifically, Glover asserts that Auction.com falsely told “public
agencies” that it did not record the deed because full payment was
not received, rather than providing the “true reason,” that the
original deed had been destroyed. (Rec. Doc. No. 1 at 4).
Under Louisiana law, defamation is committed either by libel
or slander. Hardesty v. Waterworks Dist. No. 4 of Ward Four, 954
F. Supp. 2d 461, 475 (W.D. La. 2013). “Libel is defamation which
is expressed by print, writing, pictures or signs, while slander
is communicated by oral expressions of transitory gestures.” Id.
(quoting Cluse v. H&E Equip. Servs., Inc., 09-574 (La. App. 3 Cir.
3/31/10); 34 So. 3d 959, 970.) (internal quotations omitted). Here,
Glover’s libel claim clearly fails as he does not allege any
10

written communication by Auction.com to support such a claim.
Glover contends that Aucton.com “verbally stated” the allegedly
false reason for refusing to record the deed. Therefore, slander
is the only form of defamation supportable by the facts alleged in
the complaint.
Plaintiffs must show four elements to prove defamation in
Louisiana: (1) publication (communication to some other person);
(2) falsity; (3) malice, actual or implied; and (4) resulting
injury. Manale v. City of New Orleans, Dept. of Police, 673 F.2d
122, 125 (5th Cir. 1982); Bellard v. Gautreaux, 675 F.3d 454, 464
(5th Cir. 2012). To overcome a motion to dismiss, when courts
accept all well-pleaded facts as true and view them in the light
most favorable to the non-moving party, see Baker, 75 F.3d at 196,
the complaint must plead facts consistent with each element.
Here, the publication element is met as Glover alleges that
Auction.com verbally communicated to New Orleans public agencies
the “false reason [for] why the [o]riginal [d]eed had not been
recorded at the Land Records Office.” (Rec. Doc. No. 1 at 4).
Viewing that statement as true, and in a light favorable to Glover,
Auction.com communicated with a third party about the deed.
The pleadings also satisfy the falsity element. According to
the complaint, Auction.com told New Orleans public agencies that
the deed had not been filed because the HUD-1 Settlement Statement
contained errors and thus Glover owed an additional $1,400. Glover
11

maintains that this statement was false because there was no error
in the HUD-1 Settlement Statement regarding property taxes, and
thus no additional funds required to close the deal. (Rec. Doc.
No. 1 at 2). Furthermore, he claims that the real reason for
Auction.com’s failure to file is that it destroyed the deed. (Rec.
Doc. No. 1 at 4). Taking Plaintiff’s pleadings as true, the falsity
element is met. The Defendant asserts that Glover’s slander claim
should be dismissed because it is “perfectly true” that additional
funds were owed. (Rec. Doc. No. 16-1 at 12). However, at this point
in the litigation, Plaintiff’s allegations are taken as true.
Next, Auction.com asserts that Glover alleged no facts to
support the malice element. (Rec. Doc. No. 16-1 at 12). “[W]here
the allegedly defamatory statements are not libelous or slanderous
per se, Louisiana courts require an allegation of malice.” McBeth
v. United Press Int’l, Inc., 505 F.2d 959, 959 (5th Cir. 1974).
The allegation here does not fall within the definition of slander
per se as one’s failure to pay another is not defamatory without
consideration of other facts and circumstances. See 12 William E.
Crawford, Louisiana Civil Law Treatise §17:9 (2d ed. 2014) (“Words
are defamatory per se if they themselves have defamatory results
without considering extrinsic facts and circumstances.”). Thus,
Glover’s complaint must contain an allegation of malice. Glover
states that Auction.com blamed him for failure to pay “instead of
disclosing the real reason:” that they destroyed the deed. While
12

this statement is likely an insufficient allegation of malice in
a traditional pleading by an attorney, given the requisite leniency
for pro se pleadings, the statement appears to imply bad faith on
the part of Auction.com
Finally, the complaint must contain allegations of injury
resulting from the slander. Here, Glover asserts that “all other
public

agencies

disregarded

[f]ederal

[c]riminal

[l]aws

and

treated the copy of the [o]riginal [d]eed and [o]riginal HUD-1
purchase document as if they were fake and invalid.” (Rec. Doc.
No. at 4). All Mr. Glover has addressed is the actions supposedly
taken by third parties. Other than conclusory allegations, he has
failed to plead factual support relative to injury resulting from
the alleged slander. As Mr. Glover’s pleading has failed to meet
the fourth prong the defamation standard, his slander claim must
also be dismissed.
d. Discrimination
Plaintiff’s complaint also alleges discrimination, relying on
the same facts used to support the defamation claims. However,
Plaintiff’s only elaboration with respect to the discrimination
claim is that “[b]ecause [he] was African-American, local [p]ublic
[a]gencies acted as if Auction.com was valid and correct to destroy
the Louisiana [r]eal [e]state documents.” (Rec. Doc. No. 1 at 4).
Plaintiff does not point to any specific anti-discrimination law
that could provide him with a cause of action against Auction.com,
13

a private entity. Even if he had identified an applicable antidiscrimination law, Plaintiff provides no specific allegations as
to actions taken by Auction.com that constitute discrimination. He
simply states that “Auction.com committed . . . discrimination by
presenting an implausible and false reason to various New Orleans
public agencies” concerning its refusal to file the deed. (Rec.
Doc. No. 1 at 4). He does not plead any facts relevant to
discriminatory acts by Auction.com. He does claim that local public
agencies discriminated against him “because [he] was AfricanAmerican,” but Auction.com is not a local public agency. Moreover,
that

claim

is

discrimination

entirely
claim

is

conclusory.
founded

Ultimately,

upon

“legal

Plaintiff’s
conclusions

masquerading as factual conclusions,” and therefore, the claim
must be dismissed. Taylor, 296 F.3d at 378.
e. The Privacy Act
Plaintiff’s

final

claim

against

Auction.com

alleges

a

violation of the “privacy act” through the disclosure of “private
information to outside parties who were not involved with the
transaction.” (Rec. Doc. No. 1 at 5). While Glover does not specify
the act to which he refers, he is most likely referring to the
Privacy Act of 1974. 5 U.S.C. §552(a). The Privacy Act prevents
the disclosure of certain records, but the Act only applies to
federal agencies. See Martinez v. Bureau of Prisons, 444 F.3d 620,
624 (D.C. Cir. 2006); Brooks v. AAA Cooper Transp., 781 F. Supp.
14

2d 472, 487-88 (S.D. Tex. 2011) (finding that the Privacy Act of
1974 is applicable only to federal agencies and not private
companies). It does not place restrictions on private entities
such as Auction.com. Id. Accordingly, if it is the Privacy Act of
1974 that Glover seeks to invoke, his claim cannot withstand the
Defendant’s Motion.
If, instead, Plaintiff is alleging a privacy violation on
state tort law grounds, then he has failed to plead sufficient
facts to support any such claim.

In Louisiana, the right of

privacy may be invaded in four distinct ways: “1) misappropriation
of a person’s name or likeness; 2) intrusion upon physical solitude
or seclusion; 3) placing a person in a false light before the
public; and 4) unreasonable public disclosure of embarrassing
private facts.” Sapia v. Regency Motors of Metairie, Inc., 275
F.3d 747, 751-52 (5th Cir. 2002) (citing Jaubert v. Crowley PostSignal, Inc., 375 So.2d 1386, 1388 (La. 1979)). “A privacy action
is actionable in Louisiana only when a defendant’s conduct is
unreasonable and seriously interferes with plaintiff’s privacy
interests.” Id. at 752.
In this case, Glover has failed to demonstrate how any one of
the four privacy violations apply. The most obviously applicable
is the false light tort, but even if that is the claim asserted
here by Glover, he has failed to show unreasonableness or a serious
interference with his privacy interest. All he has alleged is that
15

private information was revealed to a real estate agent. (Rec.
Doc. No. 1 at 5). Considering the context of this case, it seems
altogether reasonable that documents related to this transaction
would be revealed to a real estate agent. Furthermore, Glover has
not alleged a single fact indicating that his private life was
seriously interfered with. The only allegation is that “private
information”

was

revealed.

Consequently,

Plaintiff’s

privacy

claim, whether under the Privacy Act of 1974 or state tort law,
cannot withstand this Motion to Dismiss.
V.

CONCLUSION
For the foregoing reasons, Mr. Glover has failed to adequately

state

any

claims

upon

which

this

Court

can

grant

relief.

Accordingly,
IT IS ORDERED that the Motion to Dismiss is GRANTED.

New Orleans, Louisiana, this 2nd day of November, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

16