STANION v. DISCOVER BANK et al

Filing 31

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 07/29/2016; RECOMMENDED that Defendant Discover Bank's Motion to Dismiss (Docket Entry 8 ) be GRANTED, S&R' s Motion to Dismiss (Docket Entry 16 ) be GRANTED, and Plaintiffs Motion to Amend (Docket Entry 21 ) be DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for an Extension of Time (Docket Entry 26 ) be DENIED and Plaintiff's "Motion to Deny Defendant's Motion to Dismiss" (Docket Entry 25 ) be DENIED. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID CHARLES STANION,
Plaintiff,
V.

DISCOVER B'\NK, et

aI.,

Defendants

)
)
)
)

)
)
)
)
)

1:16CV186

ORDER, MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on several motions: Defendant Discover Bank's
("Discover Bank") Motion to Dismiss (Docket Ent y 8), Defendant Sessoms & Rogers, P.A.'s
("S&R") Motion to Dismiss (Docket Etrtty 1,6),pro ¡ePlainnff David Chades Stanion's Motion

fot Leave to Amend Complaint (Docket Entty 2l),Plainttffs document entitled "Motion to
Deny Defendant's Motion to Dismiss" (Docket Entry 25), and Plaintiffs document entitled

"Motion fot Continuance to Finish Reseatch Requited to Complete Amended Complaint"
(Docket F,nty 26).

All matters are ripe for disposition. For the reasons stated below,

the

Court recommends that Discorrer Bank's Motion to Dismiss (Docket Entty 8) be gtanted,
S&R's Motion to Dismiss (Docket Entty 16) be gtanted, and Plaintiffs Motion to Amend

(Docket Errt"y 21) be denied. Futthermore, the Coutt will deny PlaintifFs "Motion for
Continuance to Finish Research Required to Complete Amended Complaint" (Docket Entry
26) and Plaintiffs "Motion to Deny Defendant's Motion to Dismiss." (DocketBntry 25.)

I.
On March 9,

201.6,

Plaintiff filed a complaint against Defendant Discover Bank,

alleging "grand larceny under color
generalþ Compl.,

BACKGROUND

Docket Entry

2)

of law" and "terrorism of the aged and eldetly."

(See

The complaint also names Defendant Discover Bank's law

frm, S&R, and Richard J. Boudreau &

Associates,

LLCI @oudteau), alleging S&R

and

Boudreau "knew or should have known N.C.G.S. S 1-601 [containing guidelines in regards to

the validity of certain legal advertisements] ís un[c]onstitutional," and "illegally deprived
debtots of their property rþhts under the federal laws and the U.S. Constitution," deprived
debtors of constitutional due ptocess tights undet the 14th Amendment, and that Defendants

"should have known that taking advantage of N.C.G.S. 1-601 to inctease its wealth was
tântamount to collision to grand Iar.ceny undet color of law." Qd. at9.) The complaint also
names the State of

Noth

Caroltna as a Defendant.2 Plaintiff alleges that in December

201,1.,

Discover Bank offered him a high risk, zeto irrterest credit line, which Plaintiff used his home

to secute.3 (d. at3-4.) InJune

201,2,

PlaintifPs estranged wife fìled fot bankruptcy, câusing

Plaintifls intetest ï^te and payment amount to increase, and making it impossible fot Plaintiff

to make monthly payments. (d. at 6-7.) Plaintiff, a 69-year-old veteran, sought to avoid
bankruptcy. Qd.) Plaintiff now seeks recoutse against Defendants based upon what that they

Plaintiff attempted sewice on Boudreau was returned unexecuted. (Jee DocketBntry 1,2.)
Plaintiff attempted serwice on State of Noth Catolina by serving Governor Pat McCtoty (¡et
Docket Entty 15) which appears to be insufficient pursuant to the rules governing service. (See Fed.
R. Civ. P.a(ùQ); see also N.C, R. Civ. P. 4(iX3) (l.Jorth Carolina rule govetning serwice upon the
State)). No ,{nswer or other response was fi.led by the State of North CaroLna.
3
PlaintifPs zero interest credit line was only good until December 201,2. (Docket Enty 2 at 4.)
1

2

2

should have known about the illegal depdvation of debtot property rights in Notth Carc1ina.
(Id. at 9-10.)

On March 29,201,6, Discover Bank moved to dismiss pursuant to Federal Rules of
Civil Procedute 12þ)(6) and 8(a), contending that Plaintiff failed to suffìciently plead a claim
for telief. (Docket Entty 8.) S&R also moved to dismiss putsuant to Rule 12þ)(6) on April

6,201,6. (Docket Entty 16.) Plaintiff filed his tesponses to Defendants' motions. Q)ocket
Entries 23,

24.) On Apdl 8, 20'i,6, Plaintiff

supporting brief, Plaintiff asserts that

moved to amend his complaint and

in his

"þe] did not know that Bank of A.merica would

involved as a patent corporation." (Docket E.rtry 22 at

3.) Plaintiff

be

also filed a document

entitled "Motion to Deny Defendant's Motion to Dismiss," which appears to be an additional

opposition brief to Defendants'motions. (Docket Enuy 25.) He further seeks additional time

to conduct more reseatch to complete his amended complaint. (Docket Entty 26.) \X/hile
Discovet Bank made no objection to Plaintiffs Motion to Amend

(ree

Docket Entry 28 at2),

S&R does object, stating that "Plaintiff has not proposed any factual amendments that would
state a claim

for which relief could be gtanted . . . ." pocket Entry 27 at 2-3).

II.

DISCUSSION

Discover Bankts Motion to Dismiss
Discover Bank contends that dismissal is proper pursuant to Rule 12(bX6) and Rule

8(a)(2). pocket Entry 9 at 1..) A motion to dismiss pursuant to Rule 12þ)(6) tests the
suffìciency

of the complaint.

Edward¡ u. Ciry of Goldtboro, 178 F.3d 231,, 243 (1,999). A

complaint that does not "contain sufficient factual matter, accepted as true, to 'state a clatrn

to relief that is plausible on its f^ce"' must be dismissed. Ashroft

J

u.

Iqbal,556 U.S. 662, 678

(2009) (quoting Be// Atlantic u. Twombþ,550 U.S. 544, 570

(2007). "A claim has facial

plausibility when the plaintiff pleads factual content that allows the court
reasonable inference that the defendant is liable for the misconduct." Id.;
United Mortg. and I-.oan Inu., I

I (,

634 F.3d 754,768 (4th Cir. 2011)

motion, a complaint must be dismissed if

see

("Or

to draw the

al¡o Sìmmon¡

u.

a Rule 12þ)(6)

it does not allege enough facts to sla:te

^

claim to

relief that is plausíble on its face.") (citations and quotations omitted). The "court accepts all
well-pled facts as true and construes these facts in the light most favotable to the plaintiff,"

but does not consider "legal conclusions, elements of a cause of action, and bare assertions
devoid of factual enhancementf,]

Ltd.

.

. unwarranted infetences, unreasonable conclusions, ot
250,255 (4th Cit. 2009)

arguments." Nemet

Chearolet,

(citations omitted).

In other words, the standard requires a platnaff to atticulate facts, that,

u. Consamerffiirc.rvm, 1nc.,591 F'.3d

when accepted as true, demonstrate the plaintiff has stated a clum that makes it plausible he
is entitled to telief. Frands u. Giacomelli,588 F'.3d 186, 1,93 (4th Cir. 2009) (quoting Iqbal, 556
U,S. at 678,andTwombþ,550 U.S. at557).

A motion to dismiss pursuant to Rule 12þ)(6) must be read in conjunction with Federal
Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requites only "a short and plain statement of the

claim showing that the pleader is entitled to relief," so as to "give the defendant fair notice

what

the . . . claim is and the grounds upon which it

rests . . .

."

of

Twonbþ,550 U.S. at 555

(quoting Conlel u. Gibson,355 U.S. 41,47 (1,957). Rule 8 does not, however, unlock the doors

of discovery for a plaintiff armed with nothing more than conclusions. Fair notice is provided
by setting forth enough facts for the complaint to be "plausible on its face" and "raise

a

right

to relief above the speculative level on the assumption that all the allegations in the complaint

4

are true (even

does not
allegations

if doubtful in fact) . . . ." Id. at 555 (internal citations omitted). "Rule

countenance . dismissals based on a judge's

." Id.

^t

12(bX6)

disbelief of a complaint's factual

556 (quoting Scheaer u. Rhodes,416 U.S. 232,236 (1974)).

Pro ¡e complaints

^re

to be liberally consttued in assessing sufficiency under the Fedetal

Rules of Civil Ptocedute. Ericksor¡

u.

Pardø4 551 U.S. 89,94 Q007). However, even undet this

liberal consÚuction, "generosity is not fantasy," and the court is not expected to plead

plaintiffs claim for him.
In the ptesent

"tefforism

Bender u. Sabarban

case,

a

Hog., Lnc,,159 F.3d 186, 1.92 (4th Cir. 1998).

PlaintifFs alleged claims of "grandlarceny undet color of law" and

of the aged and eldedy"

âre

not

recogtizable claims

^s

à matter of

law.

Furthermore, Plaintiff failed to cite any legal authodty in support of his alleged "gtand latceny
under colot of law" and "terrorism of the aged and eldedy" claims against Discover Bank. As
such, these claims against Discover Bank should be dismissed.
Corþ.,

See Fergason u.

No. 1:11CV670, 2012WL 8467527, at *1 (44.D.N.C. Sept. 25,

dismissal is wattanted because the pro

sø

\)fL 929093, at x5 CX/.D.N.C.

because the claims alleged by

201,2)

(holding that

a

plaintiffs offeted no legal âuthority to support their

"committed dishonot in commerce" claim);
448-RJC, 2009

Option One Mortg

Sanderc u. Country Home L.aans,lzz:,
.A,pr.

No. 3:08-cv-

2,2009) (finding that dismissal was proper

plaintiff simply do not exist

as a

m^tter of law).

S&R's Motion to Dismiss
S&R contends that dismissal is ptoper pursuânt to Rule 12(bX6). The Coutt agrees

with S&R's contention. Plaintiffs assertions with tespect to N.C.G.S.

S 1,-601, are

irelevant

to the facts of this case. Plaintiff makes no allegations of specific conduct attributed to the
actions of S&R. The Coutt is left to guess which claims ate being assetted because Plaintiff

5

failed to cleatly identift any cause of action against S&R.

See Barnes u. Greerusboro

Uuing Ctr.,

No. 1:11CV1.120,201,2WL 2344623, úx2 M.D.N.C. June 20,2012) (fìnding that dismissal
was warranted when

Even

"the [c]omplaint fail[ed] to cleady identify any discrete cause of action").

if the Cout

assumes that Plainuff intended

to assert a negligence claim by using

the language of "knew or should have known" in his complaint, Plaintiff still fails to plead a
plausible claim against S&R. Common-law negligence undet Nonh Catolina law tequires
showing that"(1) the defendant owed the plaintiff a duty

of

a

carc; (2) the defendant's conduct

breached that duty; (3) the bteach was the actual and ptoximate cause of the plaintiffs in¡ury;
and (4) damages tesulted

(l\.C. Ct. App.

ftom the injury." Parker

u. Town of Enain, 77

201.5) (intetnal quotations and citations

6 S.E .2d 71,0, 729-30

omitted). Here, Plaintiffs complaint

fails to ptopetly allege a clurr' based upon general negligence principles. Âdditionally, "in the

past North Carolina coutts have placed heavy weight on public polìcy. concetns when
addressing the question of whether to allow certain lawsuits against lawyers for negligence."
Sheaþ u. Lønsþrd,355

F. Snpp. 2d 820,829 (I\4.D.N.C. 2005). As an adversary firm, S&R had

no duty to protect the rights of Plaintiff.
1,30,135 (1979)

("If

See Petrou u.

Ha/e,43 N.C. Âpp. 655, 661,,260 S.E,.2d

an attorney whose primary duty is to promote the cause of his client in a

light most favorable to him within the bounds of the law is also tequited to protect the rights

of an adverse pafty, he will be caught in the midst of a conflict of intetest.");

Sherman u.

Hick4

998 F.2d 1010 (4th Ctr.1,993) (citing Petroa). Thus, Plaintifls claims should be dismissed.

PlaintifPs Motion to Amend

Plaintiff seeks to amend his Complaint to account fot the "factual and procedural
developments that wete omitted ftom the original complaint and developments that have

6

occurred since the original complaint was

filed." (Docket Entty

21,

at 1,.) While Discover

Bank made no objection to PlaintifPs motion to amend (Docket Entry 28 at 3), S&R does
oppose such motion, stating that "Plaintiff has not proposed any factual amendments that

would state a claim fot which telief could be granted . . . ." (Docket Entry 27 at2-3). For the
following reasons, it is recommended that Plaintiffs motion to amend be denied.
Rule 15(a) of the Federal Rules of Civil Procedute ptovides tbat "a p^tq may amend
its pleading only with the opposing patty's wtitten consent ot the court's leave." Fed. R. Civ.
P. 1,5(a)Q).

Id. Granrns

It further
a

states that

motion to amend

"[t]he court should freely give leave when justice
a

complaint is within the disctetion of the Court, "but outdght

tefusal to grant the leave without any justifying reason appearing
exercise

of discretion."

so requites."

fot the denial is not an

Foman u. Dauis,371 U.S. 178, 182 (1,962). The Fourth Circuit has

stated that "la) district court may deny a motion to amend when the amendment would be

ptejudicial to the opposing parry, the movingparq has acted in bad faith, ot the amendment
would be futile." EqøalNghts Ctr. u. Niles Bolton Associates, 602F.3d 597,603 (4th Cir. 2010).

An amended complaint is futile if it cannot withstand

a

motion to dismiss for failure to state

a claim pursuant to Federal Rule of Civil Procedure 12þ)(6); thus, the Coutt may deny the
motion.

Perkins u. United States,55 F.3d 91.0,917 (4th Cir. 1995) (addition

of negligence claim

futile because case would not survive motion to dismiss). Therefote, the Court will determine

if

Plaintiffs amended complaint, which adds anothet named defendant and additional

developments, can withstand a motion to dismiss.

The Coutt ftstnotes thatPlaintiff has failed to complywrth the Local Rules. In this
district, L.R. 15.1 requires Plaintiff to attach a ptoposed amended complaint to his motion fot

7

the Court's consideration. Plaintiff did not comply with L.R. 15.1 by âttaching an amended
complaint to his motion.
201,4)

See

U.S. ex rel. Rostholder u. Omnicare, Inc.,7 45 F.3d 694,703 (4th Cir

(holding that the denial to amend was proper when the patty failed to comply with the

local rule requiring an attached amended complaint); Robinson u. Pepi Bottling Crouþ, No
1:1,3CY729,201,4W1- 20481,27, at x4 (I\4.D.N.C. May 1,9,2014) (denying plaintifPs request to
amend her complaint because she did not file a proposed amended pleading with her motion)

Thus, his motion should be denied.

In any event, PlaintifPs amendment would be futile. In the present

to add Bank of America

as

^

case,

Plaintiff

seeks

new defendant because he was unaware of Bank of Amedca's

involvement in this action as Discover Bank's parent cotporation. (Docket Entry 22 at 3.)
The Court has already recommended dismissal on Plaintiffs alleged claims against Discovet
Bank because "grand latceny undet colot of

la#' and "tertodsm of the aged and eldedy"

are

not cognizable claims as a matter of law. Consequently, Plaintiffs tequest to add Bank of
America âs a rìew defendant will not change the fact that the alleged claims are not actionable

asamatterof law. SeeHartrywanu. Il/e//¡Fargodz Ca.,No. 1:14CV808,201.5WL1.268267,at
x5 (À4.D.N.C. Mar. 1,9,201,5) (holding that the plaintiff is not allowed to add new defendants

to a futile claim); Snith

u, Potter,

1,4,201.0) (holding that the

No. 1:09CV00587, 2010 ìØL 1500876, at x6 (À4.D.N.C. Apr.

plaintifPs attempt to amend a clum by adding additional defendants

was futile andwananted a dismissal).

Furthermore, even

if

Bank of America is the parent corpotation of Discover Bank,

Plaintiff has not alleged any factual allegations such to invoke the "instrumentality rule" to
hold Bank of Ametica liable for the conduct of Discovet Bank. "The instrumentality

I

de

states that a'corporation which exercises actual conttol over another, operating the latter as a

mete instrumentality or tool, is liable for the torts of the cotpotation thus conttolled."' In
Bambart,

re

No. 11-80030 7, 2013 WL 3719908, at x3 (Bankr. M.D.N.C. July 18, 201,3) (cíting

Clenn u. Wagrcer,313

should be denied.

N.C. 450,454,329 S.E.2d 326,330 (1985). As such, Plainuffs motion

See

Marpfu

u.

Allstate Corþ., No. 1:09CV00915, 201.1, Iüvl,4499L04, atx5

$,Í.D.N.C. Sept. 27, 2011) (finding that the plaintifÎs amended complaint failed to "offet
factual assertions to support the contention that [the patent company] "tatj.fred" the actions

of

fdefendants]");

see

also Unind

Snn¡ u. Besfoods, 524 U.S. 51,, 52 (1998) ("It is a general

ptinciple of cotporate law that a parent

corporation

is not liable for the acts of its

subsidiaries").

PlaintifPs Remaining Motions

Plaintiff filed a document entitled, "Motion for Continuânce to Finish
tequired

Research

to complete ,\mended Complaktt." (Docket Entty 26). Plainuffs motion is

essentially a motion fot

at extension of time; thus, it will be treated as such. Here, a granttng

of an extension of time requires a showing of good cause.
Because Plainuffs complaint lacks sufficient facts

motion is be denied fot lack of good cause.

See

Je¿

L.R. 6.1,(a); Fed. R. Civ. P. 6þ).

to state any cogtizable claims, Plaintiffs

Adans

u. Shþman,

No. 1:13CV858, 2014WL

4924299, at x3 (À4.D.N.C. Sept. 30, 201,4) (finding that granting an extension would be futile

when the plaintifls claims would be dismissed pursuant to Rule 12þ)(6)).

Plaintiff also filed a document entitled "Motion to Deny Defendant's Motion to
Dismiss." (Docket Entry 25.) Plaintiffs motion is essentially a tesponse in opposition to
S&R's Motion to Dismiss and will be treated as such. S&R replied contending that Plaintiffs

9

claims should be dismissed because Plaintiff failed to state any cogtizable claim against S&R
and that Plaintiff would not be able to cure pleading deficiency from furthet amendments.

(Docket F;ntry 27.) Since the Court has already addressed these issues, Plaintiffls motion is
denied.

III.

CONCLUSION

For the reasons stated herein, IT IS RECOMMENDED that Defendant Discovet
Bank's Motion

to Dismiss (Docket Entry 8) be GRANTED, S&R's Motion to Dismiss

(Docket E.ttry 1ó) be GRANTED, and Plaintiffs Motion to Amend pocket Entry 2I) be

DENIED.

IT IS FURTHER ORDERED that Plaintiffs Motion fot an Extension of Time
(Docket Entry 26) be

DENIED

and Plaintiffs "Motion to Deny Defendant's Motion to

Dismiss" (Docket E.ttry 25) be DENIED.
This the 29th dav of lulv. 2016

U

10

oe L. \X/ebster
States Magisttate Judge