Ponder v. Wersant et al

Filing 42

OPINION AND ORDER. Ponder's Motion to Strike 32 , and Response 34 , are DENIED. Defendants' Motion to Dismiss 31 , [38-40], is GRANTED as to the FCRA claim. The FCRA claim is DISMISED WITH PREJUDICE. Ponder's trespass to land and conversion claims are DISMISSED without prejudice because the Court lacks subject matter jurisdiction. Defendants' remaining portions of the Motion to Dismiss are MOOT and the request for sanctions 31 & 40], are DENIED.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRIAN LAMAR PONDER,
Plaintiff,
VS.
PAUL GERARD WERSANT, et al,
Defendants.

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February 02, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-CV-00537

OPINION AND ORDER
Pending in the above-referenced cause is Defendants Paul Gerard Wersant (“Wersant”),
Coury Matthews Jacocks; James E. Albertelli, P.A. d/b/a Albertelli Law; Albertelli &
Whitworth, P.A. d/b/a Albertelli Law; James Edward Albertelli d/b/a Albertelli Law and
Albertelli & Whitworth, P.A.; Gregory David Whitworth d/b/a Albertelli Law; and Albertelli &
Whitworth, P.A.’s (“Defendants”) Motion to Dismiss Plaintiff Brian Ponder’s (“Ponder”) First
Amended Complaint (“FAC”), Docs. 31 & 38–39, Defendant Wersant’s separate Motion to
Dismiss, Doc. 40, Ponder’s Motion to Strike the Motion to Dismiss and Brief in Support, Docs.
32 & 33, and Ponder’s Response to Defendants’ Motion to Dismiss, Doc. 34. Having considered
the Motion, record, and relevant law, the Court grants Defendants’ Motion to Dismiss in part,
and denies the remaining part as moot because the Court is of the opinion that the Court lacks
subject-matter jurisdiction over the remaining claims.
This history of this case is detailed in a prior opinion and order dated September 5, 2017,
and incorporated herein, and which dismissed Ponder’s defamation claim. Doc. 27 at 1–3, 13.
Subsequently, the parties filed the above-referenced, Motion to Dismiss, Motion to Strike, and
Response.
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Ponder also filed a Motion for Default asserting that the Motion to Dismiss was late-filed,
which the Court denied on November 29, 2011. Doc. 37. In denying the Motion for Default, the
Court weighed the expediency of resolving cases against the Fifth Circuit’s preference for meritbased dispositions, and found that the scale tipped toward a merit-based disposition of the
present Motion to Dismiss. Id. at 4–5. Because Wersant had not joined the Motion to Dismiss,
the Court permitted Wersant fourteen days to file a responsive document. Id. at 5. Wersant
timely filed a Notice of Appearance, Joinder to the Motion to Dismiss, and his own briefing in
support. Docs. 38–40.
Ponder’s asserts three remaining claims from one incident: trespass to land, conversion,
and a violation of 15 U.S.C. 1681(q) of the Fair Credit Reporting Act (“FCRA”). Doc. 19 at 15–
23. Ponder alleges that all three claims arise because Defendants’ agent taped a Motion to Strike
Default, Doc. 15, “to my NJ home, taping it onto my stained wood door causing damage
defacing my door, and to my elderly grandmother’s home in Valdosta, GA, causing alarm and
distress to her.” Doc. 19-4; 19-1 (image of documents on the door); 19-3 (image of alleged door
damage). Ponder asserts that Defendants’ agent trespassed on the land by entering the “real
property without permission” and converted property by “defacing a door affixed to the
residence of [Ponder] with excessive amounts of tape.” Doc. 19 ¶ 122–23, 138. Ponder also
asserts that Defendants violated the FRCA when “they obtained the Plaintiff’s home address by
knowingly and willfully obtaining the information from a consumer reporting agency under false
pretenses and falser certification.” Doc. 19 ¶ 144. Ponder asserts that the Court has jurisdiction
over the trespass to land and conversion clams under diversity jurisdiction and over the FRCA
claim under federal question jurisdiction. See 28 U.S.C. §§ 1331–2(a)(1).
Wersant concedes that he served the Motion to Strike Default, Doc. 15, on Ponder “via
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process server at his residences in Georgia and New York, as Ponder could not be served at his
virtual office.” Doc. 40 at 2. Wersant attaches affidavits from the couriers stating that they
“served the above documents . . . by posting the documents in a conspicuous location on the
front door” of the New Jersey location, Doc. 40-2, and left the “documents with . . . the AUNT
of BRIAN LAMAR PONDER” at the Georgia location, Doc. 40-3.
Defendants’ move to dismiss these three claims under Rule 12(b)(6) for failure to state a
claim upon which relief may be granted. Docs. 31 at 4; 40 at 1. Defendants also move for
sanctions against Ponder under 28 U.S.C. § 1927 for “multiply[ing] the proceedings
unreasonably and vexatiously.” Id. at 8.
I. Ponder’s Motion to Strike and Response
Before addressing the merits of the Motion to Dismiss, the Court will consider Ponder’s
Motion to Strike and Response. Ponder asks the Court to strike Defendants’ Motion to Dismiss
as untimely and precluded. Doc. 32–34. In both his Motion to Strike and Response, Ponder
asserts Defendants’ Motion is “untimely under Fed. R. Civ. P. 12(a)(4)(A) and precluded under
Fed. R. Civ. P. 12(g)(2) on the grounds that it was not filed within 14 days after notice of denial
of its motion to dismiss and is a motion under Fed. R. Civ. P. 12(b)” as “made and ruled on.” Id.
Ponder also asserts that motion is precluded because “Defendant’s [prior] motion to dismiss was
denied.” Doc. 33. In his Response, Ponder adds that the Court “may also take into consideration
that Defendants failed to include a proposed order as required.” Doc. 34 citing LR7.1(C).
The Court will consider the Motion to Dismiss, for although it is untimely, it is not
precluded. The Court has already held in a prior opinion that it will consider the late-filed
Motion to Dismiss on its merits, as well as Wersant’s subsequent motion. Doc. 37 at 4–5. The
Motion to Dismiss is not precluded because the prior Motion to Dismiss was granted as to
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Ponder’s defamation claim, not denied. Doc. 27 at 5–7. The Court also declines to strike
Defendants’ Motions because they did not attach a proposed order. The Court concludes that it
will consider the Motion to Dismiss and Wersant’s subsequent motion. Accordingly, the Court
DENIES Ponder’s Motion to Strike and Response. The Court next considers the merits
of the Motions to Dismiss.
II. Defendant’s Motion to Dismiss under 12(b)(6)
Defendants move to dismiss Ponder’s trespass to land, conversion, and a violation FCRA
claims, Docs. 31 at 4, 38–40, but the Court presents Defendants’ assertions only on the FCRA
claims. Defendants assert that Ponder’s FCRA claim fails because Ponder makes only a
“baseless allegation” “wholly devoid of any further factual enhancements.” Doc. 31 at 7.
Wersant also asserts that the FCRA violation must be dismissed because both addresses are
publically available. Doc. 40 at 8–9.
When a district court reviews a motion to dismiss under FED. R. CIV. P. 12(b)(6), it must
construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Wolcott v.
Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009)). “Dismissal is appropriate only if the complaint fails to plead ‘enough facts to state a
claim to relief that is plausible on its face.’” Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim [is plausible on its
face] when the pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Montoya v. FedEx Ground Package Sys., Inc.,
614 F.3d 145, 148 (5th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal
quotation marks omitted). “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556
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U.S. at 678 (quoting Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 544
(citations omitted). A court may also review the documents attached to a motion to dismiss if the
complaint refers to the documents and they are central to the claim. Kane Enters v. MacGregor
(USA), Inc., 322 F.3d 371, 374 (5th Cir. 2003).
But “[w]hen a plaintiff’s complaint fails to state a claim, the court should generally give
the plaintiff at least one chance to amend the complaint under rule 15(a) before dismissing the
action.” Champlin v. Manpower Inc., No. 4:16-CV-421, 2016 WL 3017161, at *2 (S.D. Tex.
May 26, 2016) (citing Great Plains Trust Co. v. Morgan Stanely Dean Witter & Co., 313 F.3d
305, 329 (5th Cir. 2002)). The court should only deny leave to amend if it determines that “the
proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on
its face. 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1487 (2d. ed. 1990); Motten v. Chase Home Fin., 831 F. Supp. 2d 988, 994 (S.D.
Tex. 2011).
To violate the FCRA, a person must both “knowingly” and “willfully” obtain information
on a “consumer” from a “consumer reporting agency” “under false pretenses.” 15 U.S.C. § 1681.
In his FAC under information and belief, Ponder alleges that Defendants “obtained the
Plaintiff’s home address by knowingly and willfully obtaining the information from a consumer
reporting agency under false pretenses and falser certification given by Defendant PAUL
GERARD WERSANT or an agent, employee, or authorized representative of Defendants.” Doc.
19 ¶ 144–45. In support, Ponder alleges that his “personal address is not listed on any public
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registry”; that neither he nor his grandmother provided Defendants with the address; and that he
is a “consumer” and Defendants are “persons” under the statute. Id. ¶ 140–43.
Ponder does not, however, allege facts or attach evidence of the consumer reporting
agency utilized and under what false pretenses. Thus, the Court holds that Ponder has failed to
state a claim upon which relief may be granted. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
544. The Court also holds that Ponder should not be given leave to amend his FAC. See Motten,
831 F. Supp. 2d at 994.
The Court had previously admonished Ponder not to squander his credibility as an
advocate. Doc. 27 at 11. He has done so. Ponder seeks damages for what he does not dispute is
service of Defendant’s Motion. Accordingly, the Court hereby
GRANTS Defendants’ Motion to Dismiss as to the FCRA claim.
III. Jurisdiction
The Court next considers whether it lacks jurisdiction on Ponder’s remaining claims of
trespass and conversion under Rule 12(b)(1).
A court may sua sponte raise a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction at any time. Westland Oil Dev. Corp. v. Summit Transp. Co., 481 F. Supp. 15, 19
(S.D. Tex. 1979), aff’d, 614 F.2d 768 (Temp. Emer. Ct. App. 1980). See also Kidd v. Sw.
Airlines Co., 891 F.2d 540, 546 (5th Cir. 1990) (“[F]ederal courts must address jurisdictional
questions sua sponte when the parties’ briefs do not bring the issue to the court’s attention.”).
The Court may find lack of subject matter jurisdiction on any of the following three bases: (1)
the complaint; (2) the complaint along with undisputed facts evidenced in the record; and (3) the
complaint along with undisputed facts and the court’s resolution of disputed facts.
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The Court’s dismissal of
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a case for lack of subject matter jurisdiction is not a judgment on the merits and does not
preclude the plaintiff from pursuing his claim in a court that properly has jurisdiction. Hitt v. City
of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). And the Court may decline to
exercise supplemental jurisdiction over this claim, if it has “dismissed all claims over which it
has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Under 28 U.S.C. §1332, the district courts shall have original jurisdiction if there is (1)
complete diversity of citizenship and (2) the amount in controversy is greater than $75,000,
exclusive of interests and costs. 28 U.S.C. § 1332(a)(1). But if “it is apparent, to a legal certainty,
that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to
a like certainty that the plaintiff never was entitled to recover that amount . . . the suit will be
dismissed.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).
In his FAC, Ponder alleges that the Court has jurisdiction over his trespass to land and
conversion claims under 28 U.S.C. § 1332(a)(1) because the action (1) “is between citizens of
different States” and the “matter in controversy in this civil action exceeds the sum or value of
$75,000, exclusive of interest and costs.” Doc. 19 at 10. Ponder does not allege any specific
amount for the two claims, but instead attaches images of the papers taped to the door and the
tape residue left behind on the door. Docs. 19, 19-1, 19-3.
Ponder has not cited and the Court cannot find any cases wherein tape residue damage
from service of motions, even alleged unnecessary service, fulfilled the amount of controversy
prong under § 1332(a)(1). Thus, the Court holds that this tape residue alone is legally insufficient
to allege a damage amount greater than $75,000. See generally St. Paul Mercury Indem. Co., 303
U.S. at 289; Barrera-Montenegro v. United States, 74 F.3d at 659. And the Court has already
dismissed the FCRA claim, over which it has original jurisdiction. Thus, the Court holds that it
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lacks jurisdiction over these remaining claims. See 28 U.S.C. §§ 1332(a)(1), 1367(c)(3).
Accordingly, the Court hereby
ORDERS Ponder’s trespass to land and conversion claims are dismissed without
prejudice. Accordingly, the Court holds the remaining portions of the Motion to Dismiss are
MOOT and declines to award sanctions.
III. Conclusion
For the foregoing reasons, it is hereby
ORDERED that Ponder’s Motion to Strike, Doc. 32, and Response, Doc. 34, are
DENIED.
IT IS FURTHER ORDERED Defendants’ Motion to Dismiss, Docs. 31, 38–40, is
GRANTED as to the FCRA claim. The FCRA claim is DISMISED WITH PREJUDICE.
IT IS FURTHER ORDERED that Ponder’s trespass to land and conversion claims are
DISMISSED without prejudice because the Court lacks subject matter jurisdiction. Accordingly,
it is hereby
ORDERED that Defendants’ remaining portions of the Motion to Dismiss are MOOT
and the request for sanctions, Docs. 31 & 40, are denied.
SIGNED at Houston, Texas, this 2nd day of February, 2018.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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