Brown v. Colonial Savings, F. A. et al
Memorandum Opinion and Order: Therefore, The court ORDERS that plaintiff's claims against Colonial for negligent hiring, supervision, and retention and against Neer be, and are hereby, dismissed. The court determines that there is no just reaso n for delay in, and hereby directs, entry of final judgment as to such dismissals. The court further ORDERS that if plaintiff wishes to file an amended complaint as to her claims against Colonial for retaliation in violation of 12 U.S.C. § 556 7 and 18 U.S.C. § 1514A, she is authorized to do so by 4:00 p.m. on February 3, 2017, bearing in mind that the court does not accept conclusory allegations or unwarranted deductions of fact as true, and that plaintiff must provide more than labels and conclusions or a formulaic recitation of the elements of a cause of action. (Ordered by Judge John McBryde on 1/23/2017) (hth)
..·. __ , ___
IN THE UNITED STATES DISTRIC COURT
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION
COLONIAL SAVINGS F.A., and
2 3 2017
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion to dismiss for failure
to state a claim upon which relief can be granted filed in the
above-captioned action by defendants, Colonial Savings F.A.
("Colonial") and Tim Neer ("Neer").
Plaintiff, Joann Brown, has
Having considered the motion, the complaint, and the
applicable legal authorities, the court concludes:
1. The allegations of the complaint are insufficient to
state any claim upon which relief can be granted; however,
plaintiff should have the opportunity to amend her complaint as
to her retaliation claims against Colonial under 12 U.S.C.
2. Plaintiff's claims against Colonial for alleged negligent
hiring, supervision, and retention and against Neer for alleged
intentional infliction of emotion distress should be dismissed.
Plaintiff is a former employee of Colonial who asserts the
following claims: retaliation in violation of 12 U.S.C.
Colonial; retaliation in violation of 18 U.S.C.
Colonial; negligent hiring, supervision, and retention by
Colonial; and intentional infliction of emotional distress by
Ground(s) of the Motion to Dismiss
Defendants move to dismiss plaintiff's complaint for failure
to state any claim upon which relief can be granted.
assert, inter alia, that plaintiff has failed to allege
sufficient factual allegations to support any of her claims.
Applicable Legal Principles
Rule 8 (a) (2) of the Federal Rules of Civil Procedure
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) .
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
Twombly, 550 U.S. 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.
556 U.S. 662, 679 (2009)
See Ashcroft v.
("While legal conclusions
the framework of a complaint, they must be supported by factual
Moreover, to survive a motion to dismiss for failure to
state a claim upon which relief can be granted, the facts pleaded
must allow the court to infer that the plaintiff's right to
relief is plausible.
Iqbal, 556 U.S. 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. Id. In other words, where the facts
pleaded do no more than permit the court to infer the possibility
of misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679.
"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."
Retaliation in violation of 12 U.S.C.
5567 by Colonial
Section 5567, title 12 of the United States Code protects
covered persons from termination or discrimination for providing
an employer information "relating to any violation of·
provision of this title or any other provision of law that is
subject to the jurisdiction of the [Consumer Financial
Protection] Bureau, or any rule, order, standard, or prohibition
prescribed by the Bureau .
12 U. s . c.
55 6 7 (a) ( 1) .
Plaintiff alleges she was retaliated against when she
alerted Colonial to potential violations of the "Consumer
Protection Act of'2o10 1 , the Electronic Funds Transfer Act, and
Doc. 1 at ,
A statement as to what
provision(s) of these statutes Colonial allegedly violated, or an
explanation as to how her claim violated the statutes, are absent
from plaintiff's complaint.
Plaintiff's bare-boned allegations
do no more than permit the court to infer the possibility of
Although unclear, plaintiff may be referring here to the Consumer Financial Protection Act of
20 I 0 ("CFPA").
The "Doc. _" reference is to the number of the item on the docket in this action.
They do not state a claim for which relief can be
Retaliation in violation of 18 U.S.C. § 1514A
Section 1514A, title 18 of the United States Code protects
employees of contractors of publicly traded companies from
retaliation for providing information "the employee reasonably
believes constitutes a violation of section 1341, 1343, 1344, or
1348, any rule or regulation of the Securities and Exchange
Commission, or any provision of Federal law relating to fraud
against shareholders . . . . "
See Lawson v. FMR LLC, 134 S.Ct.
1158, 1176 (2014) (holding that employees of private contractors
of publicly traded companies may be afforded whistleblower
protection under the Sarbanes-Oxley Act of 2002
Plaintiff alleges that the underlying misconduct triggering
protection under§ 1514A was Colonial's purported backdating of
"notice letters informing consumers of material changes to
[automatic clearing house] withdrawals."
(alteration supplied) .
Doc. 1 at ~ 28
The untimely mailing allegedly resulted
in overdrafts to consumer accounts.
Plaintiff, apart from
asserting bare legal conclusions, fails to provide facts
explaining how Colonial's alleged misconduct falls within one or
more of the statutes enumerated§ 1514A. Plaintiff's claim, in
is insufficient to state a claim upon which relief can
Negligent Hiring, Supervision, and Retention
An employer is liable for negligent hiring, supervision, or
retention if it "hires an incompetent or unfit employee whom the
employer knows, or reasonably should have known, was incompetent
or unfit, thereby creating an unreasonable risk of harm to
Cox v. Ft. Worth, 762 F. Supp. 2d 926, 940
2010) (citing Fifth Club, Inc v. Ramirez, 196 S.W.3d 788, 796
Plaintiff offers no facts supporting her alleged claim
against Colonial for negligent hiring, supervision, and retention
Instead, plaintiff lists the elements of negligence and
recites one-sentence legal conclusions.
allegations are insufficient to state a claim upon which relief
can be granted. Nothing in the complaint suggests that there are
facts that could be alleged in an amended complaint that would
cure the pleading deficiencies as to this claim.
Intentional Infliction of Emotional Distress
Plaintiff asserts a claim of intentional infliction of
emotional distress against Neer.
Under Texas law, the elements
of intentional infliction of emotional distress are:
defendant acted intentionally or recklessly;
(2) the defendant's
conduct was extreme and outrageous;
(3) the defendant's actions
caused the plaintiff emotional distress; and (4) the resulting
emotional distress was severe."
Hoffman-La Roche Inc. v.
Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004)
For an intentional infliction of emotional distress claim, Neer's
conduct must have been "so outrageous in character, and so
extreme in degree; as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly'intolerable
in a civilized community."
Twyman v. Twyman, 855 S.W.2d 619, 621
Plaintiffs have wholly failed
to allege facts tnat support a conclusion that Neer's conduct was
extreme or outrageous.
Plaintiff's claim also fails because "a claim for
[intentional infliction of emotional distress]
is not available
against an employee's supervisor if the same alleged conduct
supports a claim for relief against the employer under other
legal theories, such as the anti-discrimination statutes."
v. El Paso Marriott, No. EP-09-CV-274-KC, 2009 WL 4878619, at *9
(W.D. Tex. Dec. 8, 2009) (citing Creditwatch v. Jackson, 157
S.W.3d 814, 816 (Tex. 2005)).
Plaintiff fails to allege
misconduct separate from the misconduct upon which she bases her
claims for retaliation under the CFPA and SOX. Defendants' motion
to dismiss plaintiff's claim for intentional infliction of
emotional distress must be granted.
Nothing in the complaint suggests that there are facts that
plaintiff could plead that state such a claim if plaintiff were
to be permitted to reallege it by an amended complaint.
Therefore, the court is finally dismissing this claim.
The court ORDERS that plaintiff's claims against Colonial
for negligent hiring, supervision, and retention and against Neer
be, and are hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to such
The court further ORDERS that if plaintiff wishes to file an
amended complaint as to her claims against Colonial for
retaliation in violation of 12 U.S.C.
5567 and 18 U.S.C.
1514A, she is authorized to do so by 4:00p.m. on February 3,
2017, bearing in mind that the court does not accept conclusory
allegations or unwarranted deductions of fact as true, and that
plaintiff must provide more than labels and conclusions or a
formulaic recitation of the elements of a cause of action.
Twombly, 550 u.s. 544, 555
(2007); Tuchman v. DSC Commc•ns Corp.,
14 F. 3d 1061, 1067 (5th Cir. 1994).
SIGNED January 23,
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