Woods v. Keiffer et al

Filing 14

Memorandum Opinion and Order re: 9 Motion to Dismiss filed by PennyMac Loan Services, LLC. The court concludes that the motion should be denied as to the ground of lack of personal jurisdiction, but granted as to the complaint's failure to state a claim for which relief may be granted. The court ORDERS that all claims and causes of action asserted by plaintiff, Terrance Woods, against defendant PennyMac in the above-captioned action be, and are hereby, dismissed with prejudice. See Order for further details. (Ordered by Judge John McBryde on 2/12/2014) (mem)

U.S. DISTR1CT OJ~J ET
NORTHERN DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION

FEB I 2 2014

CLERK, U.S. DISTRICT COURT

TERRANCE WOODS,

BY----~---------Deputy

§
§

Plaintiff,

§
§

vs.

§

NO. 4:13-CV-957-A

§

DEPUTY CONSTABLE KEIFFER,
ET AL.
I

§
§
§

Defendants.

§

MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion to dismiss filed in the
above action by defendant PennyMac Loan Services, LLC
("PennyMac").

Also named as defendants are Tarrant County Deputy

Constable Keiffer ("Keiffer"); attorney Lauren E. Christoffel
("Christoffel"); Barrett, Dappin, Frapier, Turner & Engel, LLC
("Barrett, Dappin"); and John Does I through III.

1

The grounds

of the motion are lack of personal jurisdiction pursuant to Rule
12(b) (2), and failure to state a claim upon which relief may be
granted pursuant to Rule 12(b) (6), of the Federal Rules of Civil
Procedure.

Plaintiff, Terrance Woods, filed a response.

Having

considered the parties' filings, plaintiff's original complaint,

1

There is no indication in the record that any of the defendants other than PennyMac has been served
with process.

and the applicable legal authorities, the court concludes that
the motion should be denied as to the ground of lack of personal
jurisdiction, but granted as to the complaint's failure to state
a claim for which relief may be granted.
I.

Plaintiff's Complaint
Plaintiff's complaint makes the following factual
allegations:
On November 14, 2013, Keiffer placed a red "final notice to
vacate" tag ("Notice") on plaintiff's home.

The Notice required

plaintiff and his family to vacate the premises by December 15,
2013.

On November 20, 2013, Keiffer and at least three other

constables forcibly entered plaintiff's home, with guns drawn and
without plaintiff's consent.

The constables began to search the

house, including the safe, which they forced plaintiff to open.
The constables had a locksmith change the locks on the doors of
plaintiff's home, and began forcibly removing plaintiff's
personal belongings.

Although plaintiff informed the constables

that the Notice gave them until December 15, 2013, to vacate the
property, the constables ignored him.
Plaintiff called the Grand Prairie police.

When officers

arrived, they spoke with the constables, but then left the
premises, saying it was a civil matter.
2

The constables then

demanded that plaintiff turn over the Notice.

When plaintiff

refused, Keiffer wrote another Notice giving plaintiff only
twenty-four hours, until November 21, 2013, to vacate the
property.

Keiffer said he would return the next day.

Plaintiff

sought injunctive relief in County Court at Law No. 1 in Tarrant
County and from the "Justice Court," but both courts indicated
they lacked jurisdiction to hear the case.
Against PennyMac, plaintiff asserted claims and causes of
action pursuant to 42 U.S.C.

§

1983 for unreasonable home entry,

unreasonable home search, unreasonable seizure, and excessive
force, all in violation of the Fourth and Fourteenth Amendments;
a claim generally stating that PennyMac, Christoffel, and
Barrett, Dappin are responsible third parties pursuant to Chapter
33 of the Texas Civil Practice & Remedies Code and are liable for

the illegal eviction action of the constables; and a claim that
PennyMac violated section 392.306 of the Texas Finance Code.
II.
Applicable Legal Standards and Analysis
A.

Personal Jurisdiction
1.

Law Applicable to Personal Jurisdiction

When a nonresident defendant challenges personal
jurisdiction, the plaintiff bears the burden of proving that
jurisdiction exists.

Luv N' Care, Ltd. v. Insta-Mix, Inc., 438
3

F.3d 465, 469 (5th Cir. 2006). The plaintiff need not, however,
prove jurisdiction by a preponderance of the evidence; a prima
facie showing is sufficient.

Id.

In a diversity action, a federal court may exercise personal
jurisdiction over a nonresident defendant if (1) the nonresident
defendant is amenable to service of process under the long-arm
statute of the forum state, and (2) the exercise of personal
jurisdiction is consistent with the Due Process Clause of the
Fourteenth Amendment.

Id.

The Texas long-arm statute has been

interpreted to reach as far as the federal Constitution permits.
See,

~~

(Tex. 1985)

Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200
(per curiam) .

Accordingly, the court need only

decide whether exercising jurisdiction over defendants in Texas
is consistent with the Due Process Clause.

Revell v. Lidov, 317

F.3d 467, 469-70 (5th Cir. 2002).
The exercise of jurisdiction over a nonresident defendant
comports with the Due Process Clause if (1) the defendant has
"minimum contacts" with the forum state, and (2) the exercise of
jurisdiction over that defendant does not offend "traditional
notions of fair play and substantial justice."
Washington, 326 U.S. 310, 316 (1945).

Int'l Shoe Co. v.

To establish minimum

contacts with the forum state, a defendant must do some act by
which it "'purposefully avails itself of the privilege of
4

conducting activities within the forum state, thus invoking the
benefits and protections of its laws.'"

Growden v. Ed Bowlin &

Assocs., Inc., 733 F.2d 1149, 1151 (5th Cir. 1984)
Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

(quoting

"The defendant's

conduct and connection with the forum state must be such that
[it] should reasonably anticipate being haled into court in the
forum state."

Id.

(citing World-Wide Volkswagen v. Woodson, 444

u.s. 286, 297 (1980)).
Minimum contacts may give rise to either specific or general
jurisdiction.

Luv N' Care, 438 F.3d at 469.

Specific

jurisdiction exists when a defendant "has 'purposefully directed'
[its] activities at residents of the forum, and the litigation
results from alleged injuries that 'arise out of or relate to'
those activities."
472 (1985)

Burger King Corp. v. Rudzewicz, 471 U.S. 462,

(citations omitted) .

In some cases a single act by a

defendant may be sufficient to confer personal jurisdiction if
the act gives rise to the plaintiff's claims.
252 F.3d 352, 358-59 (5th Cir. 2001).

Lewis v. Fresne,

General jurisdiction may

be exercised only if the defendant's contacts with the forum are
sufficiently continuous and systematic to support the reasonable
exercise of jurisdiction.

Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 414

&

5

n.9 (1984).

Once the plaintiff proves that defendant has sufficient
minimum contacts with the forum to support jurisdiction, the
burden shifts to defendant to show that the exercise of
jurisdiction would offend traditional notions of fair play and
substantial justice.
2.

Int'l Shoe Co., 326 U.S. at 316.

Application of Law to Facts

There is no doubt that the complaint fails to allege the
type of continuous and systematic contacts with Texas needed to
establish general jurisdiction over PennyMac.

As to specific

jurisdiction, although the jurisdictional facts in the complaint
are virtually non-existent, plaintiff does allege that PennyMac
"initiated the eviction proceedings" in Texas that culminated in
the alleged illegal acts of the constables.

Compl. at 10.

This

fact is confirmed by papers PennyMac attached to its motion to
dismiss, of which it has asked the court to take judicial notice,
showing that it initiated eviction proceedings against plaintiff
in the Justice of the Peace court in Tarrant County.

It thus

appears that plaintiff's action against PennyMac is "related to,
or arises out of," PennyMac's activities in Texas.

J.R.

Stripling v. Jordan Prod. Co., LLC, 234 F. 3d 863, 871 (5th Cir.
2000)

(quotations and citations omitted).

The court is satisfied

that PennyMac took some action, directed at the forum state, by
which it purposefully availed itself of the privilege of
6

conducting business within Texas.

Accordingly, the court may

exercise personal jurisdiction over PennyMac. 2
B.

Failure to State A Claim for Relief Under Rule 12 (b) (6)
1.

Applicable Law

Rule 8 (a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),

"in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests."
Bell Atl. Corp. v. Twombly, 550

u.s.

544, 555 (2007)

quotation marks and ellipsis omitted) .

(internal

Although a complaint need

not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Id. at 555 & n.3.

Thus, while a court must accept

all of the factual allegations in the complaint as true, it need
not credit bare legal conclusions that are unsupported by any
factual underpinnings.

See Ashcroft v. Iqbal, 556 U.S. 662, 679

2

PennyMac did not argue that the exercise of personal jurisdiction would offend traditional notions of
fair play and substantial justice. The court concludes that it would not, especially in light of the
dismissal in this memorandum opinion and order of all plaintiffs claims against Penny Mac.
7

(2009)

("While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.

Id. at 678.

To allege a plausible right to relief,

the facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
Twombly, 550 U.S. at 566-69.

"Determining whether a complaint

states a plausible claim for relief .

[is] a context-specific

task that requires the reviewing court to draw on its judicial
experience and common sense."
2.

Iqbal, 556 U.S. at 679.

Application of Law to Facts
a.

Claims Pursuant to 42 U.S.C.

To state a claim pursuant to

§

§

1983

1983, plaintiff "must allege

facts tending to show (1) that he has been deprived of a right
secured by the Constitution and the laws of the United States,
and (2) that the deprivation was caused by a person or persons
acting under color of state law."
F.3d 234, 241 (5th Cir. 1999)
citation omitted).

Bass v. Parkwood Hosp., 180

(internal quotation marks and

PennyMac moves for dismissal of plaintiffs'

claims pursuant to 42 U.S.C.

§

1983 because plaintiff failed to

allege facts to show that PennyMac violated any of plaintiff's
8

constitutional rights, and because it is not a person acting
under color of state law.
Dismissal is warranted on either of the grounds raised by
PennyMac.

No facts are alleged in complaint to show that

PennyMac did anything that could be construed as a violation of
plaintiff's constitutional rights.
plaintiff's claims under

§

PennyMac is a state actor.

And it is dispositive of

1983 that no facts are alleged to show
Accordingly, all of plaintiff's

claims against PennyMac pursuant to 42 u.s.c.

§

1983 must be

dismissed.
b.

Claims Under Tex. Civ. Prac. & Rem. Code
§ 33.011{6)

PennyMac argues that section 33.011(6) of the Texas Civil
Practice & Remedies Code is inapplicable to it in this action
because it is a named defendant, and also contends that the
complaint fails to allege facts to show that it conferred any
actual or apparent authority on the constables.
Chapter 33 of the Texas Civil Practice & Remedies Code
allows a defendant to designate a responsible third party,
defined as any person who allegedly "caused or contributed to
causing in any way the harm for which recovery of damages is
sought, whether by negligent act or omission, by any defective or
unreasonably dangerous product, by other conduct or activity that

9

violates an applicable legal standard, or by any combination of
these."

Tex. Civ. Prac. & Rem.

Code~

33.011(6).

Under the

statute, a responsible third party is one against whom the trier
of fact may assess a percentage of responsibility for the damages
allegedly incurred.

Tex. Civ. Prac. & Rem. Code§ 33.033(a).

In the complaint, plaintiff alleges that PennyMac is a
"responsible third party" and claims it is responsible pursuant
to section 33.011(6) for the actions of the constables.

However,

an entity cannot be both a named defendant and a responsible
third party.

Flack v. Hanke, 334 S.W.3d 251, 261-62 (Tex. App.--

San Antonio 2010, pet. denied).

Here, because PennyMac is a

named defendant, it cannot also be a designated responsible third
party under § 33.011(6).

Hence, plaintiff fails to state a claim

for relief pursuant to section 33.011.
Nor does the complaint allege any facts to support an
assertion that PennyMac is vicariously liable for acts of the
constables.

Plaintiff relies on Miller v. Keyser, 90 S.W.3d 712,

716 (Tex. 2002), for the proposition that "a corporate agent
acting in the course of his/her employment can be personally
liable for violations he/she personally commits, even if the
violations were not committed knowingly."
PennyMac' s Mot. to Dismiss Pl. 's Compl.

Pl.'s Opp'n to

("Pl. 's Resp.") at 19.

While this is generally a correct statement of the conclusions in
10

Miller, it fails to support plaintiff's argument that PennyMac is
somehow liable for the constables' actions.

Nothing in the

complaint alleges any basis for imparting vicarious liability to
PennyMac for the acts of the constables. 3
c.

Claims Under Tex. Fin. Code Section 392.306

Section 392.306 prohibits a creditor from using the services
of a debt collector if the creditor "has actual knowledge that
the independent debt collector repeatedly or continuously engages
in acts or practices that are prohibited by [Chapter 392] ."
Fin. Code

§

392.306.

Tex.

Absent from the complaint are any facts

showing that PennyMac had actual knowledge, or any knowledge,
that Barrett Daffin "repeatedly or continuously" violated the
provisions of Chapter 392 of the Texas Finance Code.
Accordingly, plaintiff has failed to state a claim for relief
under section 392.306.
III.

Order
Therefore,
The court ORDERS that all claims and causes of action
asserted by plaintiff, Terrance Woods, against defendant PennyMac

3

ln his response, plaintiff mentions the liability of an agent of a corporation, "such as Mr. Helm."
Pl.'s Resp. at 19. No mention is made in the complaint of anyone named "Mr. Helm," nor is there any
party by that name.
11

in the above-captioned action be, and are hereby, dismissed with
prejudice.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to such
dismissal.
SIGNED February

r ~?2014.

~dge
/

12