EMIABATA v. BB&T (BRANCH BANKING AND TRUST CO.) et al

Filing 63

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 12/13/2018, that Emiabata's motions for reconsideration or alternatively for transfer 44 , to strike BB&T's affirmative defenses [51 ], and for leave to file an amended complaint 52 are DENIED. FURTHER, that BB&T's motion to dismiss 45 is GRANTED, and Emiabata's sole remaining claim, and thus this action against BB&T is DISMISSED WITH PREJUDICE. FURTHER that in accordance with the court's prior order dismissing the complaint as to Dolotina 43 , complaint against her is DISMISSED WITHOUT PREJUDICE. (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,
Defendants.

1:17-CV-529

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
Plaintiff Philip Emiabata’s pro se complaint brought tort
claims

against

Defendants

Branch

Banking

and

Trust

Company

(“BB&T”) and Jacque Dolotina arising out of an incident in which
Dolotina — a BB&T bank teller — told law enforcement authorities
that Emiabata had threatened to “shoot” bank employees.
contends he had only threatened to “sue” the bank.

Emiabata

In a previous

order (Doc. 43), the court dismissed the complaint against Dolotina
(without prejudice), dismissed all of Emiabata’s claims against
BB&T other than his slander claim, and denied his motion for leave
to file an amended complaint.

Before the court is BB&T’s motion

to dismiss the remaining slander claim (Doc. 45) and Emiabata’s
motions for reconsideration or alternatively for transfer (Doc.
44), for leave to file an amended complaint (Doc. 52), and to
strike BB&T’s affirmative defenses (Doc. 51).
forth

below,

BB&T’s

motion

to

dismiss

For the reasons set

will

be

granted,

and

Emiabata’s motions will be denied.
I.

BACKGROUND
The facts alleged in the complaint, as laid out in this

court’s previous order (Doc. 43 at 2–3), are as follows:
At a BB&T bank branch in Round Rock, Texas, on June 6, 2016,
a

bank

employee

precluded

Emiabata’s

wife,

Sylvia,

from

withdrawing funds from her account because it had been flagged for
fraud.

(Doc. 2 at 7–8.)

situation.

(Id.)

Sylvia called Emiabata to explain the

When the phone was on loudspeaker, Emiabata

claims he 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 to shoot the bank.” 1

(Id. at 7.)

As a result, BB&T wrote

Emiabata a letter that banned him from the bank, and Emiabata was
subjected to a criminal investigation.

(Id. at 7–8.)

On June 9, 2017, Emiabata filed a complaint against BB&T and
Dolotina alleging false light, libel, and slander.

(Id.)

The

court subsequently allowed Emiabata to amend the complaint to
properly allege subject-matter jurisdiction. 2

(Docs. 19, 20.)

On

1

Emiabata notes that he has an accent but contends that the accent could
not have accounted for a misunderstanding of his words. (Doc. 2 at 8.)

2

Emiabata did not file a complete amended complaint; rather, he filed
a short document (Doc. 20) setting out a handful of allegations to be
added to the original complaint (Doc. 2). In consideration of Emiabata’s
pro se status, the court construes the two documents together as the
amended complaint.

2

July 31, 2018, the court granted Dolotina’s motion to dismiss for
insufficient service and lack of personal jurisdiction and granted
BB&T’s motion to dismiss all claims except slander for failure to
state upon which relief can be granted.
Emiabata

has

filed

a

flurry

of

(Doc. 43.)
motions:

a

Since then,
motion

for

reconsideration or alternatively for transfer (Doc. 44); a motion
to strike BB&T’s affirmative defenses (Doc. 51); and a motion for
leave to file another amended complaint (Doc. 52).
to dismiss the remaining slander claim.

BB&T has moved

(Doc. 45.)

The motions

have been fully briefed and are ready for decision.
II.

ANALYSIS
A.

Emiabata’s Motion for Reconsideration or, Alternatively,
to Transfer

Emiabata moves for reconsideration under Federal Rule of
Civil Procedure 59(e), which only allows a party to move to alter
or amend a judgment.

Since no judgment has been entered in this

case, and in light of Emiabata’s pro se status, the court will
construe his motion as one under Rule 54(b).
Any order “that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties . . . may be
revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.”

Fed.

R. Civ. P. 54(b). However, courts only revise interlocutory orders
for one of the following three reasons: (1) new, different evidence

3

discovered “during litigation,” (2) a change in the relevant law,
and/or

(3)

injustice.”

clear

error

that

would

otherwise

cause

“manifest

Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th

Cir. 2017) (quoting Am. Canoe Ass’n v. Murphy Farms, Inc., 326
F.3d 505, 514 (4th Cir. 2003)).

Rule 54(b) motions “should not be

used to rehash arguments the court has already considered merely
because the movant is displeased with the outcome.” South Carolina
v. United States, 232 F. Supp. 3d 785, 793 (D.S.C. 2017).
Emiabata’s motion merely regurgitates arguments the court has
already considered, mistakenly argues that Dolotina waived her
jurisdictional objection by not making a “special appearance,” and
protests that the court should have transferred venue sua sponte
under 28 U.S.C. §§ 1406(a) and/or 1631. 3

(Doc. 44 at 2 (“[T]he

court kept silent regard[ing] transferring this action against
Defendant . . . and in here Reconsideration is Appropriate.”), 6.)
Of course, as a result of the development of Rule 12(b) of

3

Emiabata also argues that Dolotina should have been precluded under
Rule 12(g)(2) from filing both a response to his motion for leave to
amend the complaint and a motion to dismiss. (Doc. 44 at 5–6.) This
argument is frivolous, given that it rests on the mistaken notion that
Rule 12(g)(2) applies to response briefs.
Although not relevant to
Emiabata’s motion for reconsideration, there is a Rule 12(g)(2) issue
with BB&T’s latest motion to dismiss (Doc. 45), which will be resolved
below. Finally, Emiabata makes vague accusations that the court failed
to properly consider “the voluminous substantiating information the
plaintiff filed.” (Doc. 44 at 7.) To the extent Emiabata contests the
court’s determination not to consider his surreply (Doc. 39) or
affidavits (Docs. 36, 37), he has offered no reason why the court’s
explanations of its actions in that regard (Doc. 43 at 2 n.2 & n.3) were
erroneous.

4

the Federal Rules of Civil Procedure well over half a century ago,
“the

distinction

between

general

and

special

appearances

in

federal practice has been abolished.” Davenport v. Ralph N. Peters
& Co., 386 F.2d 199, 204 (4th Cir. 1967).

Since Dolotina asserted

her personal jurisdiction defense in her first and only motion to
dismiss (Doc. 27), she did not waive that defense pursuant to Rule
12(h) or for any other reason.
Emiabata’s

claim

that

the

court

should

have

sua

sponte

transferred venue under 28 U.S.C. § 1406(a) and/or § 1631 is
particularly unpersuasive where Emiabata himself chose this forum
by filing his action here. 4

Even assuming that venue is improper

in this district under § 1391(b), venue objections are waivable,
and Emiabata did not move to transfer venue prior to the court’s
July 31, 2018 order.

See 28 U.S.C. § 1406(b) (“Nothing in this

chapter shall impair the jurisdiction of a district court of any
matter

involving

a

party

who

does

not

interpose

timely

and

sufficient objection to the venue.”); Olberding v. Ill. Cent. R.R.
Co., 346 U.S. 338, 340 (1953) (“[Venue is] but a limitation
designed for the convenience of litigants, and, as such, may be
waived by them.

The plaintiff, by bringing the suit in a district

other than that authorized by the statute, relinquished his right
to object to venue.”).

4

Moreover, the court may only transfer a

No Defendant has raised a venue objection.

5

case under § 1406(a) or § 1631 when such a transfer would be “in
the interest of justice.”

28 U.S.C. §§ 1406(a), 1631; see Barbour

v. Gorman, No. 13-cv-01290-AW, 2013 WL 4052684, at *1 (D. Md. Aug.
9, 2013) (noting, in the § 1406 context, that “[t]he moving party
must establish by a preponderance of the evidence that the transfer
promotes the interest of justice”).

Emiabata provides no reason

why the case should have been transferred at the time of this
court’s earlier order, let alone one that rises to the level of
the interest of justice. 5

See (Doc. 44 at 2).

This is especially

so where, as shown by this court’s prior (Doc. 43) and present
analysis, the underlying claims lack merit. 6 See Page v. Alleghany
Cty. Court of Common Pleas Family Div., No. CCB-16-3955, 2016 WL
7383868, at *1 (D. Md. Dec. 21, 2016) (“It would not be in the
interests of justice to transfer the case to another federal court
as [the plaintiff’s] complaint against the named defendants is
likely subject to dismissal [for failure to state a claim].”).
For these reasons, Emiabata’s motion for reconsideration will

5

To the extent Emiabata meant for his arguments relating to his
alternative motion to transfer under § 1404(a) to also support his claim
that the court committed clear error causing manifest injustice by not
transferring the case in its July 31, 2018 order, these arguments are
unpersuasive, as noted further herein.
6

Although the complaint against Dolotina was dismissed without prejudice
for insufficient service and lack of personal jurisdiction (Doc. 43 at
5–6), Emiabata offers no reason why the same claims against her would
not suffer the same fate as those against BB&T, should she ever be
properly served in a proper jurisdiction.

6

be denied.
As an alternative to reconsideration on the basis of improper
venue, Emiabata also argues that the case should now be transferred
to either the District of Connecticut or the District of Arizona
under 28 U.S.C. § 1404(a). 7

(Doc. 44 at 3–4.)

Section 1404(a)

allows transfer “[f]or the convenience of parties and witnesses,
in the interest of justice, . . . to any other district or division
where it might have been brought.” 8 In considering such a transfer,
the

court

normally

considers

a

number

of

judicially-created

factors, including:
(1) the plaintiff’s initial choice of forum; (2)
relative ease of access to sources of proof; (3)
availability of compulsory process for attendance of
unwilling
witnesses,
and
the
cost
of
obtaining
attendance of willing and unwilling witnesses; (4)
possibility of a view of the premises, if appropriate;
(5) enforceability of a judgment, if one is obtained;
(6) relative advantage and obstacles to a fair trial;
(7) other practical problems that make a trial easy,
expeditious,
and
inexpensive;
(8)
administrative
difficulties of court congestion; (9) local interest in
having localized controversies settled at home; (10)
appropriateness in having a trial of a diversity case in
a forum that is at home with the state law that must
govern the action; and (11) avoidance of unnecessary
problems with conflicts of laws.
Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 527

7

In consideration of Emiabata’s pro se status, his arguments for transfer
in his motion for reconsideration will be construed as a motion to
transfer.
8

The court may also transfer the case to “any district or division to
which all parties have consented,” 28 U.S.C. § 1404(a), but no Defendant
has consented.

7

(M.D.N.C. 1996).
Even assuming that this case might have been brought in the
District of Connecticut or Arizona, transfer would still be denied
because — as with his §§ 1406 and 1631 arguments — Emiabata offers
no reason “the interest of justice” supports it.

Instead, his

sole reason for transferring the case to Connecticut is that he is
now allegedly a resident of that state, and his sole reason for
transferring the case to Arizona is that Dolotina resides there.
(Doc. 44 at 4.)

Emiabata does not explain how his current

residency is reason enough to transfer the case, especially where
he chose to file his action in North Carolina despite being at
that time a resident of Texas.

(Doc. 20 at 2); see also Tools USA

& Equip. Co. v. Champ Frame Straightening Equip., Inc., 841 F.
Supp. 719, 721 (M.D.N.C. 1993) (“[T]he court should refrain from
transferring venue if to do so would simply shift the inconvenience
from one party to another.”).
the

case

should

be

Emiabata also does not explain why

transferred

to

Arizona

solely

because

of

Dolotina’s residency there, especially when the complaint against
her has been dismissed and a transfer of venue would not solve the
defective service issues identified in the court’s previous order.
(Doc. 43 at 5.)

As a result, what the court construes as an

alternative motion for transfer will be denied. 9

9

Emiabata also requests in the alternative that he be granted leave to

8

B.

BB&T’s Motion to Dismiss

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 Atlantic 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. at

678 (citing Twombly, 550 U.S. at 556).
In addressing this motion, the court is mindful that it must
construe a pro se litigant’s complaint liberally, thus permitting
a potentially meritorious case to develop if one is present.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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), nor to become an advocate for the pro se party, Weller v.
Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

amend the complaint.
(Doc. 44 at 2, 4.)
Because he later filed a
separate motion for leave to amend the complaint (Doc. 52), his request
for leave to amend will be treated pursuant to that motion.

9

1.

Preliminary Procedural Issues

Having previously prevailed in part on a Rule 12(b)(6) motion
to dismiss, BB&T filed an additional motion to dismiss on the
ground that the statute of limitations for Emiabata’s slander claim
has expired.

(Doc. 45.)

Rule 12(g)(2) precludes a party from

making an additional Rule 12 motion “raising a defense or objection
that was available to the party but omitted from its earlier
motion,” unless the additional motion is provided for by Rule
12(h)(2) or (3).

Fed. R. Civ. P. 12(g)(2).

Rule 12(h)(2) provides

that failure to state a claim, failure to join a party required
under Rule 19, and failure to state a legal defense to a claim may
be raised in a Rule 7(a) pleading, in a Rule 12(c) motion on the
pleadings, or at trial.

Fed. R. Civ. P. 12(h)(2).

Rule 12(h)(3)

provides that a court must dismiss the action at any time if it
determines that it lacks subject-matter jurisdiction.
Civ. P. 12(h)(3).

Fed. R.

Because BB&T’s statute of limitations defense

was available but omitted from its earlier motion (Docs. 9, 10)
and is not provided for — at least in the form of an additional
12(b)(6) motion — by Rule 12(h)(2) or (3), BB&T’s latest motion to
dismiss is improperly filed. 10
Nevertheless, “many courts have interpreted [Rule 12(g)(2)]

10

The
12(c)
(Doc.
three

court cannot convert BB&T’s additional Rule 12(b) motion into a
motion to make it proper under Rule 12(g)(2), because the motion
45) was filed prior to BB&T’s answer (Doc. 47) — albeit by a mere
minutes.

10

permissively and have accepted subsequent motions on discretionary
grounds.”

F.T.C. v. Innovative Mktg., Inc., 654 F. Supp. 2d 378,

383 (D. Md. 2009); accord Superior Performers, Inc. v. Ewing, No.
1:14CV232, 2015 WL 3823907, at *2–3 (M.D.N.C. June 19, 2015).
While permission to file subsequent Rule 12(b)(6) motions is not
often given, such permission has been granted in cases where the
court finds no intent to cause delay and where the moving Defendant
could have properly included the same arguments in a Rule 12(c)
motion for judgment on the pleadings.

See Smith v. Bank of the

Carolinas, No. 1:11CV1139, 2012 WL 4848993, at *7 n.9 (M.D.N.C.
Oct. 11, 2012), adopted by 2013 WL 2156008 (M.D.N.C. May 17, 2013).
Here, the court discerns no intent to cause delay on the part
of BB&T, whose primary argument in its original motion to dismiss
— later renewed without additional briefing — was that the court
lacked subject-matter jurisdiction.

See (Doc. 10).

BB&T was

clearly correct in its subject-matter jurisdiction argument, but
the court declined to dismiss the case without first allowing
Emiabata to file an amended complaint alleging facts giving rise
to subject-matter jurisdiction. (Doc. 19 at 9.) The court further
advised BB&T that it “need not re-brief” its motion to dismiss
after Emiabata’s amended pleading, which could simply be renewed.
(Id.)

Given the obvious subject-matter jurisdiction defects of

the original complaint and the language in the court’s February 1,
2018 order, the court finds that BB&T’s failure to raise its
11

statute of limitations defense earlier was likely mere oversight,
not the result of improper motive.

Furthermore, BB&T no doubt

could simply have filed a proper Rule 12(c) motion containing the
exact same statute of limitations arguments, had it waited another
three minutes.

Compare (Doc. 45 (filed at 4:03 p.m. on August 14,

2018)) with (Doc. 47 (filed at 4:06 p.m. on August 14, 2018)).
Were the court to deny BB&T’s Rule 12(b)(6) motion on Rule 12(g)(2)
grounds, this is the precise course of action BB&T would be
compelled to take, and the court would again be asked to consider
the

same

(fully

briefed)

currently before it.
waste

of

judicial

statute

of

limitations

arguments

This would amount to needless delay and a

and

party

resources,

which

is

exactly

opposite of the result Rule 12(g)(2) was intended to produce.
such,

although

the

court

cautions

that

parties

—

the
As

especially

represented parties — should not presume that the court will
overlook Rule 12(g)(2) deficiencies in their filings, the court
here exercises its discretion to decide BB&T’s motion on its
merits.

See Smith, 2012 WL 4848993, at *7 n.9; see also Mylan

Labs, Inc. v. Akzo, N.V., 770 F. Supp. 1053, 1059 (D. Md. 1991)
(overlooking

a

Rule

12(g)(2)

deficiency

where

there

was

“no

prejudice to [the plaintiff]”).
2.

Statute of Limitations

The court has already found that Texas substantive law applies
to Emiabata’s tort claims, pursuant to North Carolina’s lex loci
12

rule.

(Doc. 43 at 6–7.)

BB&T contends that slander claims are

subject to a one-year statute of limitations in Texas and that the
face of the complaint makes clear that it was filed more than one
year after the events giving rise to the claim.
4.)

(Doc. 46 at 3–

Emiabata’s arguments relating to the statute of limitations

are difficult to parse, 11 but he appears primarily to maintain that
the complaint is timely under the Texas Rules of Civil Procedure
and Federal Rule of Civil Procedure 6(d).

(Doc. 49 at 6–7.)

The statute of limitations is an affirmative defense that
must be proven by a defendant by a preponderance of the evidence.
Fed. R. Civ. P. 8(c)(1); Stack v. Abbott Labs., Inc., 979 F. Supp.
2d 658, 664 (M.D.N.C. 2013).

As a result, a court can reach the

merits of a statute of limitations issue at the Rule 12(b)(6) stage
only “if all facts necessary to the [statute of limitations]
defense ‘clearly appear[] on the face of the complaint.’”

11

Stack,

For instance, Emiabata makes irrelevant arguments relating to possible
damages he might recover if successful on the merits. (Id. at 10–11.)
Emiabata also appears to make several arguments in support of the court’s
subject-matter jurisdiction.
(Doc. 49 at 3–5.)
However, the court
previously allowed Emiabata to amend his complaint to establish subjectmatter jurisdiction (Doc. 19), and neither the court nor any party has
raised doubts as to the court’s subject-matter jurisdiction since that
amendment. Finally, Emiabata entreats the court to convert BB&T’s Rule
12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment
(Doc. 49 at 7–10), apparently so that the court could consider his wife’s
separately-filed affidavit (Doc. 50).
Emiabata offers no reason why
such a conversion would be appropriate, and the court cannot divine any
— BB&T’s statute of limitations argument is readily resolved based on
the complaint alone. The affidavit, meanwhile, is nearly identical to
the one the court previously declined to consider. (Doc. 43 at 2 n.3.)
The court will therefore decline Emiabata’s invitation to convert the
current motion into one for summary judgment for the same reasons stated
in its previous order. (Id.)

13

979 F. Supp. 2d at 664 (quoting Goodman v. Praxair, Inc., 494 F.3d
458, 464 (4th Cir. 2007)) (alteration in original).
Under Texas law, “[a] person must bring suit for . . . slander
. . . not later than one year after the day the cause of action
accrues.”

Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a).

The cause

of action accrues on the date the allegedly defamatory statement
was published.

Williamson v. New Times, Inc., 980 S.W.2d 706, 710

(Tex. App. 1998).

Here, the complaint expressly states that the

allegedly defamatory statement was published no later than June 6,
2016. 12

(Doc. 2 at 7.)

As a result, Emiabata had until June 6,

2017, to bring his slander claim.

“A civil action is commenced by

filing a complaint with the court,” Fed. R. Civ. P. 3, and a (nonelectronically-filed) paper is filed when it is delivered to the
clerk or to a judge who agrees to accept it for filing, Fed. R.
Civ. P. 5(d)(2).
(Doc. 2 at 1.)

Emiabata’s complaint was filed on June 9, 2017.
As a result, Emiabata’s slander claim is facially

time-barred. 13

12

Although the complaint states that the relevant incident occurred “on
or about” June 6, 2016, it also makes several references to a subsequent
letter regarding the incident sent to Emiabata by BB&T dated June 6,
2016. (Doc. 2 at 7–8.) Therefore, Emiabata’s original “on or about”
pleading cannot be construed to raise any doubt whether the incident
occurred after June 6, 2016, and Emiabata has made no argument to that
effect.
13

Even if the complaint had been delivered to the clerk on June 7, 2017,
as the envelope shows it was originally scheduled to be delivered (Doc.
2-1), it would still have fallen outside the statute of limitations,
which expired on June 6, 2017.

14

Emiabata’s arguments to the contrary are unavailing.
reliance

on

the

Texas

Rules

of

Civil

Procedure

is

His

clearly

misplaced, as state civil procedure rules do not govern procedure
in federal court.

See, e.g., Erie Ry. Co. v. Tompkins, 304 U.S.

64, 92 (1938) (Reed, J., concurring in part) (“[N]o one doubts
federal power over procedure.”).

While the substantive law in

this case is that of Texas, see id. at 78, the procedure is governed
by the Federal Rules of Civil Procedure.

Fed. R. Civ. P. 1 (“These

rules govern the procedure in all civil actions and proceedings in
the United States district courts . . . .).
acknowledges

this

by

also

relying

on

Emiabata tacitly

Federal

Rule

of

Civil

Procedure 6(d) for the proposition that three days should be added
to the statute of limitations period.
simply misunderstands the rule.

(Doc. 49 at 7.)

But he

Rule 6(d) provides that “[w]hen

a party may or must act within a specified time after being served
and service is made under [various rules], 3 days are added after
the period would otherwise expire under Rule 6(a).”
P. 6(d) (emphasis added).

Fed. R. Civ.

The filing of Emiabata’s complaint was,

of course, not a situation in which he was making a filing “after
being served” with some other document, as the case had not yet
been initiated.

Nor does the policy of the rule apply here — Rule

6(d) gives parties extra time to respond to filings that are not
served on them in a manner that gives them immediate or nearimmediate notice of the filing, in order that the party being
15

served is not disadvantaged by the serving party’s choice of
service method.

Because Emiabata was not served with anything

prior to his filing of the complaint, Rule 6(d) cannot extend the
period in which he could have properly brought his slander claim.
As a result, BB&T’s motion to dismiss will be granted.
C.

Emiabata’s Motion for Leave to File an Amended Complaint

Emiabata moves to amend his complaint to add Dolotina back as
a

Defendant

and

to

bring

claims

for

“defamation

per

se,”

negligence, breach of contract, “bad faith dealing,” and invasion
of privacy.

(Doc. 52-1 at 4–7.)

BB&T argues that the proposed

amendment would be futile and that leave should therefore be
denied.

(Doc. 56.)

Despite its best efforts, the court is unable

to understand the arguments Emiabata attempts to make in his
briefing, other than the repeated assertion that it is in the
interest of justice to grant the motion.

See (Doc. 58).

Federal Rule of Civil Procedure 15 governs leave to amend and
provides that leave will be “freely” granted “when justice so
requires.”
“liberal”

Fed. R. Civ. P. 15(a)(2).
one,

leave

will

Although this rule is a

nevertheless

amendment would have been futile.”

be

denied

when

“the

Laber v. Harvey, 438 F.3d 404,

426 (4th Cir. 2006) (en banc) (quoting Johnson v. Oroweat Foods
Co., 785 F.2d 503, 509 (4th Cir. 1986)).

“Futility is apparent if

the proposed amended complaint fails to state a claim . . . .”

16

Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir.
2011).
Emiabata’s attempt to bring Dolotina back into the case is
eminently futile, as he has offered no argument or allegation that
would change the analysis in the court’s previous order dismissing
his claims against her for improper service and lack of personal
jurisdiction.

(Doc. 43 at 5–6.)

His motion in that regard will

therefore be denied.
As to the new counts Emiabata proposes to bring against BB&T,
the court has already denied his prior attempt to amend the
complaint to pursue claims for defamation per se, negligence, and
breach of contract (Doc. 43 at 11), and Emiabata has provided no
reason why the court’s prior analysis would come out differently
now.
As for his proposed claim of “bad faith dealing,” the only
cause of action under Texas law appears to arise solely in the
context of a “special relationship between the parties governed or
created by a contract.”

Arnold v. Nat’l Cty. Mut. Fire Ins. Co.,

725 S.W.2d 165, 167 (Tex. 1987).

Texas courts have only found

such a special relationship in the context of certain fiduciary
relationships or between parties to an insurance contract.

See,

e.g., Hux v. S. Methodist Univ., 819 F.3d 776, 781 (5th Cir. 2016).
“Texas law does not impose a generalized contractual duty of good
faith and fair dealing and, in fact, rejects it in almost all
17

circumstances.”

Id.

Emiabata has not made a plausible case that

such a special relationship existed between him and BB&T, and
therefore the addition of a “bad faith dealing” claim would be
futile.
As to Emiabata’s remaining proposed claim, Texas does not
appear to recognize a generalized tort for “invasion of privacy.”
Instead, Texas recognizes three particular “types of invasion of
privacy”: (1) “intrusion into the plaintiff’s seclusion,” (2)
“public

disclosure

of

embarrassing

private

“appropriation of a name or likeness.”

facts,”

(3)

and

Cain v. Hearst Corp., 878

S.W.2d 577, 578 & n.2 (Tex. 1994) (citations omitted).

Having

considered the elements of each of these torts under Texas law,
see Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 48 (Tex. App.
2001) (intrusion upon seclusion and public disclosure of private
facts); Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 638 (5th
Cir. 2007) (appropriation of name or likeness), the court finds
that Emiabata has not plausibly alleged facts supporting any of
them.

As a result, any amendment adding an invasion of privacy

claim would be futile.
For all these reasons, Emiabata’s motion for leave to amend
the complaint will therefore be denied on the ground of futility.
D.

Emiabata’s Motion to Strike BB&T’s Affirmative Defenses

Emiabata also moves to strike the affirmative defenses laid
out in BB&T’s answer.

(Doc. 51.)
18

However, because Emiabata’s

remaining

claim,

alleging

slander,

will

be

dismissed

with

prejudice, leaving no claim to be further litigated, his motion to
strike BB&T’s affirmative defenses is moot.

It will therefore be

denied.
III. CONCLUSION
For the reasons stated,
IT

IS

THEREFORE

ORDERED

that

Emiabata’s

motions

for

reconsideration or alternatively for transfer (Doc. 44), to strike
BB&T’s affirmative defenses (Doc. 51), and for leave to file an
amended complaint (Doc. 52) are DENIED.
IT IS FURTHER ORDERED that BB&T’s motion to dismiss (Doc. 45)
is GRANTED, and Emiabata’s sole remaining claim, and thus this
action as against BB&T, is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that in accordance with the court’s
prior order dismissing the complaint as to Dolotina (Doc. 43), the
complaint against her is DISMISSED WITHOUT PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
December 13, 2018

19