EMIABATA v. BB&T (BRANCH BANKING AND TRUST CO.) et al
Filing
43
MEMORANDUM ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 07/31/2018 that BB&T's motion for failure to state a claim 9 is GRANTED in part and DENIED in part, in that Embiabata's false light and libel claims are DISMISSED, but the mot ion to dismiss the slander claim is DENIED. FURTHER that Dolotina's motion to dismiss 27 is GRANTED, and Emiabata's claims against her are DISMISSED WITHOUT PREJUDICE. FURTHER that Emibata's motion for leave to file an amended complaint 32 are DENIED. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PHILIP EMIABATA,
Plaintiff,
v.
BB&T (BRANCH BANKING AND TRUST
CO.) AND JACQUE DOLOTINA,
)
)
)
)
)
)
)
)
)
1:17CV529
Defendants.
MEMORANDUM ORDER
THOMAS D. SCHROEDER, Chief District Judge.
Plaintiff Philip Emiabata claims that following a banking
transaction involving his wife, Defendants Branch Banking and
Trust Company (“BB&T”) and Jacque Dolotina, a BB&T bank teller,
slandered, libeled, and put him in a false light by claiming to
police that he threatened over the telephone to “shoot,” rather
than “sue,” employees of the bank.
In a previous order (Doc. 19),
the court permitted Emiabata to amend his complaint to properly
allege diversity jurisdiction.
20.)
Emiabata has since done so.
(Doc.
The case returns to the court on BB&T’s renewed motion to
dismiss (Doc. 9), Dolotina’s motion to dismiss (Doc. 27), and
Emiabata’s motion for leave to amend the complaint yet again (Doc.
32).
The motions have been fully briefed and are ready for
decision.
1
(Docs. 10, 15, 1 16, 18, 28, 33, 34, 35, 38, 39, 40, 41,
Emiabata’s references to 42 U.S.C. § 1983, the First and Thirteenth
Amendments, the Bill of Rights, and the “Right to Personal Autonomy,”
42.) 2
For the reasons set forth below, BB&T’s motion to dismiss
will be granted in part and denied in part, Dolotina’s motion to
dismiss will be granted, and Emiabata’s motion for leave to file
an amended complaint will be denied. 3
I.
BACKGROUND
At a BB&T bank branch in Round Rock, Texas, on June 6, 2016,
a
bank
employee
are frivolous.
precluded
Emiabata’s
wife,
Sylvia,
from
(Doc. 15 at 3.)
2
Defendants note that Emiabata has filed a surreply (Doc. 39) without
obtaining leave of the court to do so, in violation of this court’s local
rules, and argues that this filing should be disregarded. (Doc. 40.)
Emiabata subsequently filed the same document again, without any
explanation as to why the court should consider it. (Doc. 42.) While
“the local rules do not expressly prohibit surreplies, “[a] surreply is
not generally allowed under this district’s Local Rules.” Pathfinder
Software, LLC v. Core Cashless, LLC, 127 F. Supp. 3d 531, 537 (M.D.N.C.
2015) (citing Luna-Reyes v. RFI Constr., LLC, 57 F. Supp. 3d 495, 498
(M.D.N.C 2014.)
“Generally, courts allow a party to file a surreply
only when fairness dictates based on new arguments raised in the previous
reply.” Fulk v. Norfolk S. Ry. Co., 35 F. Supp. 3d 749, 751 n.1 (M.D.N.C.
2014) (quoting DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C.
2010)). Absent a new argument, “a surreply is unnecessary.” Adefila
v. Select Specialty Hosp., 28 F. Supp. 3d 517, 522 n.3 (M.D.N.C. 2014).
Here, Defendants did not raise any new argument in their reply, so the
surreplies are unnecessary and will not be considered.
However, the
court notes that it discerns nothing in the surreplies that would alter
the court’s ruling. (Docs. 39, 42). Relatedly, Emiabata contends that
Defendants’ response to his motion to amend is untimely and should be
disregarded. (Doc. 41 at 2.) Emiabata is incorrect, and his request
will be denied.
3
Emiabata has also submitted affidavits from his wife and himself (Docs.
36, 37) and requests that the court convert the current motion into one
for summary judgment (Doc. 39 at 3—5). Having reviewed the affidavits,
the court declines Emiabata’s invitation, as it is premature and the
affidavits would not permit the court to rationally decide the case.
Williford v. Seber, No. 2:15CV324, 2016 WL 4249495, at *2 (E.D. Va. Aug.
8, 2016) (“In order to properly convert a motion to dismiss to a motion
for summary judgment, the extrinsic material, such as affidavits must
provide the court with an ability to make a complete and rational
determination of the case.”).
2
withdrawing funds from her account because it had been flagged for
fraud.
(Doc. 2 at 7–8.) 4
situation.
(Id.)
Sylvia called Emiabata to explain the
When the phone was on “loudspeaker,” Emiabata
told Dolotina he “might have a legal action and that [he] might
sue the bank for damages.”
(Id. at 8.)
Dolotina called the
police, claiming that she heard Emiabata say he would “come to the
bank and Shoot the bank.”
(Id. at 7.) 5
As a result, BB&T wrote
Emiabata a letter that banned him from the bank, and Emiabata was
subjected to a criminal investigation.
II.
(Id. at 7-8.)
ANALYSIS
Emiabata proceeds pro se. “When reviewing a pro se complaint,
federal courts should examine carefully the plaintiff's factual
allegations,
no
matter
how
inartfully
pleaded,
to
determine
whether they could provide a basis for relief. In addition, in
order to determine whether the claim of a pro se plaintiff can
withstand a motion to dismiss, it is appropriate to look beyond
the face of the complaint to allegations made in any additional
materials filed by the plaintiff.”
Armstrong v. Rolm A. Siemans
Co., 129 F.3d 1258 (4th Cir. 1997) (citations omitted) (unpublished
4
Dolotina allegedly gave various “different stories” for why his wife
was not able to withdraw money from their account, including: (1) there
was fraudulent activity, (2) the account was closed, and (3) there was
a hold on the account that had not yet expired. (Doc. 2 at 8.)
5
Emiabata notes that he has an accent but contends it could not have
accounted for a misunderstanding of what he said. (Doc. 2 at 8.)
3
table decision).
However, the liberal construction of a pro se
plaintiff's pleading does not require the court to ignore clear
defects in pleading, Bustos v. Chamberlain, No. 3:09-1760-HMH-JRM,
2009 WL 2782238, at *2 (D.S.C. Aug. 27, 2009), or to “conjure up
questions never squarely presented in the complaint,” Brice v.
Jenkins, 489 F.Supp.2d 538, 541 (E.D. Va. 2007) (internal quotation
marks and citation omitted).
Nor does it require that the court
become an advocate for the unrepresented party.
Weller v. Dep't
of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.
Rule
of
Civil
Procedure
12(b)(6),
“a
complaint
Under Federal
must
contain
sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
A claim is 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.” Id.
(citing Twombly, 550 U.S. at 556).
dismiss
“challenges
the
legal
A Rule 12(b)(6) motion to
sufficiency
of
a
complaint
considered with the assumption that the facts alleged are true.”
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009) (internal
citations omitted).
4
A.
Service and Jurisdictional Defects as to Dolotina
The court finds that none of the claims against Dolotina can
survive the motions to dismiss.
In an affidavit accompanying her
motion to dismiss, Dolotina states that she was never served the
summons or the complaint.
(Doc. 27; Doc. 27-1.)
claims
been
that
Dolotina
has
served
on
While Emiabata
“three
separate
and
acceptable” occasions, he has provided no evidence of this service
to the court.
(Doc. 34 at 6.)
Instead, Emiabata has attempted to
mail the complaint and summons to the addresses of homes or
business with which Dolotina is no longer associated.
9.)
(Id. at 6–
This does not constitute proper service under the Federal
Rules of Civil Procedure or under North Carolina law.
As such,
Emiabata did not properly serve Dolotina, and the claims against
her should be dismissed.
Further, Dolotina contends that this court does not have
personal jurisdiction over her.
She is correct.
Jurisdiction may
be
short,
party
general
or
specific.
In
if
the
maintains
“continuous and systematic” contacts with a state, the forum state
has general personal jurisdiction over it, and the nonresident may
be sued on any claim in that state.
See Perkins v. Benguet Consol.
Mining Co., 342 U.S. 437, 445–46 (1952).
systematic
contacts
are
absent,
a
But where continuous and
court
may
assert
specific
personal jurisdiction over a defendant for any dispute arising
from
the
defendant’s
contact
with
5
the
forum
state.
See
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.8
(1984).
Specific personal jurisdiction “requires only that the
relevant conduct have such a connection with the forum state that
it is fair for the defendant to defend itself in that state.”
CFA
Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285,
292 n.15 (4th Cir. 2009).
Here, the court need not engage in an extended analysis,
because Dolotina is a citizen of Arizona, her only connection to
North Carolina is that she may have driven through this state
“several decades ago” when she lived in Georgia, and this case
does not involve any action involving her that took place in North
Carolina.
(Doc. 27-1 ¶ 3.)
As such, there are insufficient
contacts between North Carolina and Dolotina for this court to
have personal jurisdiction over her, and her claim is dismissed on
this ground as well.
Perdue Foods LLC v. BRF S.A., 814 F.3d 185,
189–92 (4th Cir. 2016) (affirming a district court’s dismissal for
lack of personal jurisdiction where the district court held that
there were insufficient facts to establish that the defendant had
the requisite minimum contacts with the forum state).
B.
Claims of False Light
BB&T moves to dismiss Emiabata’s claims that the Defendants
put him in a false light.
Given that the harm is alleged to have
occurred in Texas, the lex loci rule dictates that Texas law apply.
Sanatana, Inc. v. Levi Strauss and Co., 674 F.2d 269 (4th Cir.
6
1982) (discussing the lex loci rule for torts).
Texas law does
not recognized a cause of action for false light.
Therefore, this
claim fails and must be dismissed.
Cain v. Hearst Corp., 878
S.W.2d 577, 578 (Tex. 1994).
C.
Claims of Libel and Slander
BB&T next moves to dismiss Emiabata’s claims for libel and
slander, based on BB&T’s communication with police and its letter
to Emiabata banning him from access to the bank.
The elements for
libel and slander are the same in Texas; it is the manner of
communication that differs.
Neyland v. Thompson, No. 03-13-00643-
CV, 2015 WL 1612155, at *5 (Tex. App. Apr. 7, 2015) (noting that
libel is defamation expressed in written or graphic form while
slander is defamation in the spoken form)).
These elements are
“the defendant (1) published a statement, (2) that was defamatory
concerning the plaintiff, (3) while acting with either malice, if
the
plaintiff
was
a
public
official,
or
negligence,
if
the
plaintiff was a private individual, regarding the truth of the
statement.”
Id.
Whether a statement is defamatory is a question
of law, and a statement is defamatory when “in light of the
surrounding circumstances, a person of ordinary intelligence would
interpret it in a way that tends to injure the subject’s reputation
and thereby expose the subject to public hatred, contempt, or
ridicule, or financial injury, or to impeach the subject’s honesty,
integrity, or virtue.”
Id.
Publication must include sharing the
7
statement with a third party, and negligent conduct is “determined
by asking ‘whether the defendant acted reasonably in checking the
truth or falsity or defamatory character of the communication
before publishing it.
Id. at *8; In re Lipsky, 460 S.W.3d 579,
593 (Tex. 2015). Lastly, a plaintiff must plead and prove damages,
unless the statements are defamatory per se, meaning that they are
so obviously harmful that general damages may be presumed.
Lipsky,
460
S.W.3d
at
593.
A
statement
will
In re
typically
be
classified as defamatory per se if it “charges a person with the
commission of a crime, dishonesty, fraud, rascality, or general
depravity.”
Neyland, 2015 WL 1612155, at *5.
The libel claim fails because there is no allegation that the
letter on which Emiabata bases his libel claim was published to a
third party.
home address.
It appears to simply have been mailed to Emiabata’s
(Doc. 27-1 at 2.)
Further, this letter does not
include a defamatory statement – it merely informed Emiabata that
his “conduct [fell] outside the bounds of acceptable behavior” and
that he is “prohibited from entering the premises of any Branch
Banking
and
Trust
Company
facility.”
(Id.)
Given
these
deficiencies, the libel claim fails.
In contrast, Emiabata’s slander claim is based on Dolotina’s
statements to the police that Emiabata had threatened to come to
the bank and “shoot” – rather than “sue,” as Emiabata claims – the
employees there.
Emiabata alleges that Dolotina “knew or should
8
have known” that he had not threatened to shoot the bank at the
time that she called the police and informed them that he had made
the threat, meaning that Emiabata has alleged that Dolotina either
lied or acted negligently.
(Doc. 15 at 5.)
The publication
element is also present — Dolotina called the police about the
alleged threat, and Dolotina mentioned the incident to others in
the BB&T office.
Lastly, Dolotina’s statements to the police, if
untrue, were defamatory.
She accused Emiabata of threatening to
commit a crime of violence, and this accusation led to a criminal
investigation of Emiabata.
Thus, Emiabata’s slander claim is
sufficiently stated to survive the present motion.
D.
Request for Punitive Damages
Emiabata seeks recovery of punitive damages.
For reasons
similar to those noted above, the court finds Emiabata’s request
for punitive damages survives the present motion.
Under Texas law, punitive damages are referred to as exemplary
damages and can be awarded only if the plaintiff proves that the
harm results from fraud, malice, or gross negligence.
Prac. & Rem. Code § 41.003.
Tex. Civ.
Emiabata claims that Dolotina lied
when she told police that Emiabata said he was going to come and
shoot the employees at the bank.
(Doc. 2 at 7.)
He also claims
that Dolotina acted with malice when she made that statement to
the police.
lied.
(Id.)
Such an allegation is plausible if Dolotina
These allegations are therefore sufficient to survive the
9
present motion.
Whether they stand up is a matter or proof for a
later day.
E.
Emiabata’s Motion to Amend Complaint
Emiabata moves to amend his complaint to add several claims.
(Doc. 32.)
Defendants oppose the motion on grounds of futility.
Leave to amend is governed by Federal Rule of Civil Procedure
15.
Emiabata’s amended complaint can be amended again “only with
the opposing party’s written consent or the court’s leave.”
Fed.
R. Civ. P. 15(a)(2).
“The court should freely give leave when
justice so requires.”
Id.
Leave to amend will be denied only if
(1) the amendment would prejudice the opposing party, (2) there is
bad faith on the part of the moving party, or (3) the amendment
would be futile.
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.
2006) (en banc); see Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d
462, 471 (4th Cir. 2011) (noting that although district courts
should freely grant leave to amend a complaint, a court may deny
leave when an amendment would be futile, i.e., when it fails to
state a claim); Equal Rights Center v. Niles Bolton Assocs., 602
F.3d 597, 603 (4th Cir. 2010) (noting that a district court need
not approve an amendment where doing so would be prejudicial to
the opposing party, is the result of bad faith, or would be
futile).
While leave may be freely granted, this district’s local rules
require that a separate motion for leave be filed and a proposed
10
amended pleading be attached to the motion.
purpose
is
to
avoid
having
cases
thrust
L.R. 15.1.
into
limbo
generalized requests that may later prove unsupported.
on
The
such
Robinson
v. Pepsi Bottling Grp., No. 1:13CV729, 2014 WL 2048127, at *4
(M.D.N.C. May 19, 2014).
It lies within the court’s discretion to
deny a motion for leave to amend where the moving party fails to
comply with Local Rule 15.1.
See U.S. ex rel. Rostholder v.
Omnicare, Inc., 745 F.3d 694, 703 (4th Cir. 2014).
Here, Emiabata has failed to provide a proposed amended
complaint with his motion.
denied.
On this basis alone, his motion is
But in deference to Emiabata’s pro se status and to ward
off further unnecessary motion practice, the court also concludes
that each of the proposed amendments fails on the merits.
In
his
motion
for
leave
to
amend
and
proposed
amended
complaint, Emiabata seeks to “add Dolotina a Joinder of Parties.”
(Doc. 32 at 2.)
However, Dolotina is already a party to this suit,
and Emiabata has already amended his complaint to allege that she
is a citizen of Arizona.
In light of the court’s ruling as to
Dolotina, Emiabata’s attempt to add her is futile and will denied.
Emiabata also seeks to add several new causes of action.
These are: defamation per se; negligence; breach of contract; and
“vicarious
liability,
and/or agency.”
respondeat
superior,
ostensible
agency
None states a claim for relief, and Emiabata’s
request to amend will be denied as futile.
11
First, defamation per se is not a cause of action under Texas
law, but an element of defamation that deals with the types of
damages that a plaintiff is entitled to recover.
Variyam, 400 S.W.3d 59, 63—65 (Tex. 2013).
Hancock v.
Thus, Emiabata’s
attempt to amend his complaint in this regard would be futile.
Second, in Emiabata’s proposed negligence claim, the breach
of duty that he alleges is the same conduct that gives rise to his
slander and libel claims.
(Doc. 32 at 5.)
Thus, it is the same
claim as his defamation claims, despite the fact that he calls it
a negligence claim.
defamation
claim,
the
Because his complaint already includes a
court
requested “negligence” claim.
will
not
permit
him
to
add
the
See generally, Grost v. United
States, No. EP-13-CV-158-KC, 2014 WL 1783947, at *6 (W.D. Tex. May
5, 2014); Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir.
1991); Ross v. Gallant, Farrow & Co., P.C., 27 Ariz. App. 89, 92,
551 P.2d 79, 82 (1976) (“The claim of negligence here is subsumed
by the claim of libel.”).
Third, Emiabata seeks to bring a breach of contract claim.
Yet, he has included no information about the terms of a valid
contract or any information about its breach. 6
As a result, such
a claim is not plausibly alleged, and it would be futile to permit
6
Emiabata does claim that he has a contract with BB&T regarding his
account with the bank. (Doc. 32 at 5.) However, without any further
information, this allegation is insufficient to state a claim for breach
of contract.
12
its addition.
Emiabata’s request to do so is denied.
Paragon
Gen. Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 882
(Tex. App. 2007) (noting that the elements in a breach of contract
claim
are
“(1)
plaintiff's
the
existence
performance
or
of
a
valid
tendered
contract,
performance,
(2)
(3)
the
the
defendant's breach of the contract, and (4) damages as a result of
the breach”).
Last,
while
Emiabata
seeks
to
add
a
claim
of
vicarious
liability, “[v]icarious liability is not a stand-alone cause of
action.
It is a derivative method of assigning liability to a
party.”
Bond v. Rexel, Inc., No. 5:09-CV-122, 2011 WL 1578502, at
*9 (W.D.N.C. Apr. 26, 2011) (internal quotation marks omitted);
Warren v. Bank of Am., N.A., No. 3:16-CV-1373-M-BN, 2017 WL 728260,
at *1 (N.D. Tex. Feb. 23, 2017), aff'd, 717 F. App'x 474 (5th Cir.
2018).
Thus, Emiabata’s attempt to add a claim for vicarious
liability must been denied.
In sum, it would be either futile or duplicative for Emiabata
to add each of his proposed claims, and his motion for leave to
file an amended complaint is denied. 7
III. CONCLUSION
For the reasons stated,
7
Emiabata’s responsive brief makes reference to a host of other possible
constitutional and vaguely-worded claims. (Doc. 15.) They are frivolous
but will not be considered further because they are not part of the
motion to amend. L.R. 15.1.
13
IT IS THEREFORE ORDERED that BB&T’s motion for failure to
state a claim (Doc. 9) is GRANTED in part and DENIED in part, in
that Emiabata’s false light and libel claims are DISMISSED, but
the motion to dismiss the slander claim is DENIED.
IT IS FURTHER ORDERED that Dolotina’s motion to dismiss (Doc.
27) is GRANTED, and Emiabata’s claims against her are DISMISSED
WITHOUT PREJUDICE. 8
IT IS FURTHER ORDERED that Emiabata’s motion for leave to
file an amended complaint (Doc. 32) is DENIED.
/s/
Thomas D. Schroeder
United States District Judge
July 31, 2018
8
Emiabata offers no reason why Dolotina should not also benefit from
the dismissal of the false light and libel claims, should she ever be
properly served in a proper jurisdiction.
14
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