Bickerstaff et al v. Bickerstaff et al

Filing 81

ORDER AND REASONS granting 67 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Court GRANTS defendant's motion to dismiss. The Court DISMISSES WITHOUT PREJUDICE plaintiff's claims for lack of subject matter jurisdiction. Signed by Judge Sarah S. Vance on 8/25/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LORETTA LOIS BICKERSTAFF
APPEARING HEREIN THROUGH
HER LEGALLY APPOINTED AGENT
IN FACT AND MANDATARY,
GERALD GREGORY BICKERSTAFF

CIVIL ACTION

VERSUS

NO. 15-3639

CAROLYN KRIDER BICKERSTAFF,
ET AL.

SECTION “R” (3)

ORDER AND REASONS
Before the Court is Defendant Carolyn Bickerstaff’s motion to dismiss
plaintiff’s complaint. Because Plaintiff Loretta Bickerstaff lacks standing,
the Court grants the motion.

I.

BACKGROUND
This diversity action arises out of a dispute over the ownership of a

beach house in Gulf Shores, Alabama.1

Plaintiff Loretta Bickerstaff

purchased the Alabama beach house in July 1993.2 In February 2010,
plaintiff granted her brother, Richard Bickerstaff, power of attorney, giving

1
2

R. Doc. 1 at 3-5.
Id. at 3.

him management and control of her affairs.3

In November 2010, an

Assumption Warranty Deed was executed in Louisiana.4 This deed appears
to transfer ownership of the beach house from plaintiff to Richard
Bickerstaff.5 On May 16, 2014, plaintiff filed suit against Richard Bickerstaff
in Louisiana state court challenging the validity of the transfer of ownership
and requesting rescission of the Assumption Warranty Deed. 6 In July 2014,
plaintiff filed a notice of lis pendens in Alabama probate court stating that
she was contesting ownership of the beach house in Louisiana state court.7
This litigation remains pending in Louisiana state court, and plaintiff has not
yet secured judicial recognition of her ownership of the property.8
The events that gave rise to this federal action occurred after plaintiff
filed suit in state court. On May 23, 2014, Richard Bickerstaff executed a
Second Mortgage on the Alabama beach house and named his wife,
Defendant Carolyn Bickerstaff, as the mortgagee. 9 The Second Mortgage
purportedly secured a debt of $241,534 owed by Richard Bickerstaff to

3
4
5
6
7
8
9

Id. at 3.
Id. at 4; R. Doc. 67-2 at 7-8.
Id.
R. Doc. 1 at 5; R. Doc. 67-2 at 10.
R. Doc. 72-2 at 1-2.
R. Doc. 67 at 4; R. Doc. 72 at 5.
R. Doc. 1 at 4; R. Doc. 67-2 at 3-6.
2

defendant.10 Plaintiff alleges that the Second Mortgage is a sham and is part
of a scheme by defendant to deprive plaintiff of her beach house.11
On August 19, 2015, plaintiff, acting through her legally appointed
agent in fact and mandatary Gerald Gregory Bickerstaff, brought suit in this
Court alleging that defendant engaged in fraud and negligence in relation to
the Second Mortgage. 12 Richard Bickerstaff is not a party to this federal
litigation. 13 Plaintiff asks the Court to find the Second Mortgage legally
invalid and order rescission of the transaction and cancellation of the
mortgage from the public records.14 Plaintiff also seeks damages and costs. 15
Defendant now moves to dismiss plaintiff’s complaint, arguing that
plaintiff lacks standing to seek rescission of the mortgage because she does
not own the property.16 Plaintiff opposes this motion. 17

R. Doc. 67-2 at 3.
R. Doc. 1 at 4.
12
Id. at 3-5. Plaintiff also brought claims against several other
defendants, who have since been dismissed from this action. See R. Doc. 16;
R. Doc. 52. In addition to fraud and negligence, plaintiff’s complaint alleges
collusion, breach of fiduciary duties, and breach of contract. These claims,
however, appear directed at the now-dismissed Herbert defendants. In her
opposition to the motion to dismiss, plaintiff asserts that she is bringing
fraud and negligence claims against defendant. See R. Doc. 72 at 1.
13
R. Doc. 1.
14
Id. at 4.
15
Id. at 10.
16
R. Doc. 67.
17
R. Doc. 72.
3
10
11

II.

LEGAL STANDARD
A plaintiff must satisfy the standing requirements of Article III of the

Constitution in order to establish the existence of an “actual case or
controversy.” O’Shea v. Littleton, 414 U.S. 488, 493-94 (1974). A motion to
dismiss for lack of standing therefore challenges the court’s subject matter
jurisdiction, and is governed by Federal Rule of Civil Procedure 12(b)(1).18
As the party invoking federal jurisdiction, plaintiff bears the burden of
establishing standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
When its subject matter jurisdiction is challenged, the Court first
considers whether the defendant has made a “facial” or a “factual” attack
upon the complaint. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981). In the case of a facial attack, the court “is required merely to look to
the sufficiency of the allegations in the complaint because they are presumed
to be true.” Id. When a defendant makes a factual attack on the complaint,
however, the plaintiff is “required to submit facts through some evidentiary
method and has the burden of proving by a preponderance of the evidence

Defendant presents her motion as a motion to dismiss for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Because defendant argues that
plaintiff lacks standing, the Court construes this as a motion to dismiss for
lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The Court
denied defendant’s earlier motion to dismiss for lack of subject matter
jurisdiction, but that motion related to the separate issue of diversity
jurisdiction. See R. Doc. 14.
4

18

that the trial court does have subject matter jurisdiction.” Id.; see also
Superior MRI Servs, Inc. v. Alliance Healthcare Servs, Inc., 778 F.3d 502,
504 (5th Cir. 2015). A court’s dismissal of a case for lack of subject matter
jurisdiction is not a decision on the merits, and the dismissal does not
prevent the plaintiff from pursuing the claim in another forum. See Hitt v.
City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).

III. DISCUSSION
Defendant’s motion is a factual attack on plaintiff’s complaint. A
motion to dismiss for lack of standing is “‘factual’ rather than ‘facial’ if the
defendant ‘submits affidavits, testimony, or other evidentiary materials.’”
Superior MRI Servs, 778 F.3d at 504 (quoting Paterson, 644 F.2d at 523).
Here, defendant submits property records in support of her contention that
plaintiff does not own the beach house and lacks standing to seek rescission
of the Second Mortgage. 19 See id. (finding a factual attack on standing where
defendant submitted official records). Moreover, plaintiff appears to treat

R. Doc. 67-1; R. Doc. 67-2. Although the property records submitted
by defendant were referenced in plaintiff’s complaint, they were not attached
to the complaint. Defendant relies on the content of the documents to
challenge the factual assertion that plaintiff owns the property. For instance,
defendant refers to the Assumption Warranty Deed to argue that plaintiff
personally signed the deed and that the transfer was supported by adequate
consideration. See R. Doc. 67-1 at 10-11.
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19

the motion as a factual attack. Plaintiff’s memorandum in opposition cites
to affidavit and deposition testimony and attaches the notice of lis pendens
as evidence of plaintiff’s claim to the property.20
Plaintiff bears the burden of showing by a preponderance of the
evidence that she has standing in this matter. To establish standing, plaintiff
must demonstrate that she (i) suffered an “injury in fact” that is (ii) “fairly
traceable to the challenged conduct of the defendant” and (iii) it must be
“likely, as opposed to merely speculative, that the injury will be redressed by
a favorable judicial decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 56061 (1992) (internal citations omitted).
Plaintiff asserts that she was injured by the defendant because the
Second Mortgage on the beach house burdened her property with debt.21
Defendant argues that plaintiff cannot establish injury from a loss of equity
in property that she does not own and did not own when the mortgage was
filed. 22 To satisfy standing requirements, plaintiff’s injury must be “actual or
imminent, not conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560.
The “examination of whether a plaintiff has suffered a concrete injury”
overlaps with the constitutional requirement that a case be sufficiently ripe

20
21
22

R. Doc. 72 at 7-8, 10-11; R. Doc. 72-2.
R. Doc. 1 at 5; R. Doc. 72 at 7.
R. Doc. 78 at 4-5.
6

for judicial consideration. See Texas v. United States, 497 F.3d 491, 496 (5th
Cir. 2007). If a “purported injury is contingent on future events that may not
occur as anticipated, or indeed may not occur at all, the claim is not ripe for
adjudication.” Zepeda v. Boerne Indep. Sch. Dist., 294 F. App’x 834 (5th Cir.
2008) (quoting Thomas v. Union Carbide Agr. Products, 473 U.S. 568, 581
(1985)).
Plaintiff’s theory of injury in this case is too contingent to confer
standing. The primary injury plaintiff complains of is the deprivation of her
beach house because of the actions of her brother, Richard Bickerstaff. 23 It
is undisputed that the 2010 Assumption Warranty Deed purports to transfer
ownership of the beach house from plaintiff to Richard Bickerstaff, who is
shown to be the owner on the public record. 24

Plaintiff has not shown that

she is currently the legal owner of the property, and the issue of ownership
of the property is not before the Court to decide. Both parties agree that
plaintiff’s challenge to the validity of the transfer of ownership must be
resolved by the state court.25 The injury plaintiff alleges in this litigation—
increased debt on the beach house because of the Second Mortgage—will
harm plaintiff only in the event that she is adjudicated to be the legal owner

23
24
25

See generally R. Doc. 1.
R. Doc. 67-2 at 7-9; R. Doc.
R. Doc. 67-1 at 4; R. Doc. 72 at 5.
7

of the property in state court. If plaintiff does not prevail in state court, her
legal rights will be unaffected by the existence of a Second Mortgage between
Richard Bickerstaff and defendant.
For similar reasons, plaintiff has not shown that a favorable decision
by this Court is likely to redress her alleged injury. Richard Bickerstaff is not
a defendant in this litigation, and both parties agree that ownership of the
property is not at issue in this case.26 The relief requested by plaintiff is the
rescission and cancellation of the Second Mortgage. 27 But plaintiff is not a
party to the Second Mortgage, and she has cited no authority under
Louisiana law to indicate that the Court can order rescission of a mortgage
at the request of a non-owner of the property. See Aberta, Inc. v. Atkins, 89
So. 3d 1161, 1163 (La. 2012) (explaining that the recorder of mortgages must
determine the legal owner of the property at issue before cancelling a
mortgage).
Even if the Court could rescind the mortgage, despite the plaintiff’s
unadjudicated claim of ownership and the absence of the mortgagor from the
proceedings, the rescission of the mortgage would not remedy any harm to
the plaintiff unless she secures legal ownership of the property. The Court

26
27

See R. Doc. 67 at 4; R. Doc. 72 at 5.
R. Doc. 1 at 4; R. Doc. 72 at 3, 5.
8

will not speculate as to the outcome of the state court proceedings. See Linda
R.S. v. Richard D., 410 U.S. 614, 618 (1973) (explaining that the
redressability of harm cannot be speculative). To the extent that plaintiff is
also seeking damages from the defendant, she cannot establish an
entitlement to damages without a showing of concrete injury.
Because plaintiff has not established that she has Article III standing
in this matter, the Court lacks subject matter jurisdiction.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to

dismiss. The Court DISMISSES WITHOUT PREJUDICE plaintiff’s claims
for lack of subject matter jurisdiction.

25th
New Orleans, Louisiana, this _____ day of August, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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