TNL Enterprises, LLC v. OneWest Bank, FSB

Filing 9

OPINION and ORDER granting 5 Motion to Dismiss.(Signed by Judge Micaela Alvarez) Parties notified.(bgarces, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
TNL ENTERPRISES, LLC,
Plaintiff,
v.
ONEWEST BANK, FSB,
Defendant.

§
§
§
§ CIVIL ACTION NO. 7:12-CV-497
§
§
§
§

OPINION AND ORDER
Pending before the Court is OneWest Bank, FSB’s (“Defendant”) motion to dismiss.1
TNL Enterprises, LLC (“Plaintiff”) did not respond. After considering the motion, record and
relevant authorities, the Court GRANTS the motion.
On November 5, 2012, Plaintiff filed the self-styled “Plaintiff’s Application for
Temporary Restraining Order, Temporary Injunction and Permanent Injunction.”2 On December
4, 2012, Defendant removed this case asserting that this Court has jurisdiction pursuant to 28
U.S.C. § 1332.3
The Court begins by noting that the complaint does not specify the address of the relevant
property. The complaint mentions a four-unit property,4 but the attached “Preview Inspection
Report” covers two four-unit properties located at 1602 and 1603 Omni Avenue in Pharr, Texas.5
Defendant’s notice of removal references both properties. But, inexplicably, Defendant only
attached appraisal district documents to the notice of removal for 1602 W Omni Avenue and also
1

Dkt. No. 5.
Dkt. No. 1-1.
3
Dkt. No. 1.
4
Dkt. No. 1-1 at p. 6.
5
Dkt. No. 1-1 at pp. 11-15.
2

1/4

omitted one page of the “Preview Inspection Report.” Furthermore, the attached notices of
foreclosure sale6 reference only Lot One Hundred and One (101) and have footers containing the
1602 W Omni Avenue address. The appraisal district documents identify Lot 101 as the 1602 W
Omni Avenue property.7

Finally, the complaint refers to a single property throughout.

Therefore, the Court cannot determine whether this case only deals with the property located at
1602 W Omni Avenue in Pharr, Texas, or includes the 1603 property.
Although the scope of the litigation is questionable, the removal was facially valid. The
property at 1602 W Omni Avenue alone appraised for over $200,000.8 Because Plaintiff seeks
to permanently enjoin Defendant from foreclosing on the property, the Court considers the entire
value of the property in its amount in controversy calculation. Therefore, the amount in
controversy far exceeds the $75,000 requirement.

Furthermore, the parties are completely

diverse. The Court notes that Plaintiff has not challenged the validity of removal. Therefore, the
Court finds that it has subject matter jurisdiction.
Turning to the motion to dismiss, Defendant asserts that Plaintiff has failed to state a
claim pursuant to Federal Rule of Civil Procedure 12.9

Specifically, Defendant states:

“Plaintiff’s suit must be dismissed because his (sic) request for injunctive relief without any
stated affirmative claims or allegations of wrongdoing against Defendant[] is insufficient to
support a suit.”10

6

Dkt. No. 1-1 at pp. 16-17.
Dkt. No. 1-1 at p. 34.
8
Id.
9
Dkt. No. 5.
10
Id.
7

2/4

The Court will now determine whether the original complaint states a claim. In the
complaint, Plaintiff states that “[t]he nature of the lawsuit is implied warranty of habitability.”11
Additionally, Plaintiff seeks injunctive relief.12
Although Texas recognizes a cause of action for breach of an implied warranty of
habitability13 and Plaintiff asserts that “[n]umerous deficiencies exist regarding habitability[,]”14
Plaintiff’s complaint is devoid of factual allegations suggesting that Defendant committed any
such breach. To be clear, the only allegation regarding Defendant in the “Facts” section of the
complaint is that Defendant is attempting to foreclose on the property.15

That is grossly

insufficient to state a claim against Defendant for the breach of an implied warranty of
habitability. Therefore, the Court DISMISSES Plaintiff’s claim that is based on the implied
warranty of habitability.
Plaintiff also requests injunctive relief.

Crucially, “[a]n injunction is an equitable

remedy, not a cause of action.”16 Here, Plaintiff has failed to assert a single cause of action
against Defendant. Therefore, there is no legal basis for the Court to enjoin Defendant in this
case. The Court DISMISSES Plaintiff’s request for injunctive relief.

11

Dkt. No. 1-1 at p. 6.
Dkt. No. 1-1 at pp. 6-8.
13
See Centex Homes v. Buecher, 95 S.W.3d 266 (Tex. 2002).
14
Dkt. No. 1-1 at p. 6.
15
Id.
16
Brittingham v. Ayala, 995 S.W.2d 199, 201 (Tex. App.—San Antonio 1999, pet. denied).
12

3/4

After considering the motion, record, and relevant authorities, the Court GRANTS
Defendant’s motion to dismiss. Therefore, the Court DISMISSES this case with prejudice to
refiling.
IT IS SO ORDERED.
DONE this 7th day of January, 2013, in McAllen, Texas.

_______________________________
Micaela Alvarez
UNITED STATES DISTRICT JUDGE

4/4