Bickerstaff et al v. Bickerstaff et al, No. 2:2015cv03639 - Document 81 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 67 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Court GRANTS defendant's motion to dismiss. The Court DISMISSES WITHOUT PREJUDICE plaintiff's claims for lack of subject matter jurisdiction. Signed by Judge Sarah S. Vance on 8/25/2017. (cg)
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Bickerstaff et al v. Bickerstaff et al Doc. 81 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LORETTA LOIS BICKERSTAFF APPEARING HEREIN THROUGH HER LEGALLY APPOINTED AGENT IN FACT AND MANDATARY, GERALD GREGORY BICKERSTAFF CIVIL ACTION VERSUS NO. 15-3639 CAROLYN KRIDER BICKERSTAFF, ET AL. SECTION “R” (3) ORD ER AN D REASON S Before the Court is Defendant Carolyn Bickerstaff’s m otion to dism iss plaintiff’s com plaint. Because Plaintiff Loretta Bickerstaff lacks standing, the Court grants the m otion. I. BACKGROU N D This diversity action arises out of a dispute over the ownership of a beach house in Gulf Shores, Alabam a. 1 Plaintiff Loretta Bickerstaff purchased the Alabam a beach house in J uly 1993. 2 In February 20 10 , plaintiff granted her brother, Richard Bickerstaff, power of attorney, giving 1 2 R. Doc. 1 at 3-5. Id. at 3. Dockets.Justia.com him m anagem ent and control of her affairs. 3 In Novem ber 20 10 , an Assum ption Warranty Deed was executed in Louisiana. 4 This deed appears to transfer ownership of the beach house from plaintiff to Richard Bickerstaff. 5 On May 16, 20 14, plaintiff filed suit against Richard Bickerstaff in Louisiana state court challenging the validity of the transfer of ownership and requesting rescission of the Assumption Warranty Deed. 6 In J uly 20 14, plaintiff filed a notice of lis pendens in Alabam a probate court stating that she was contesting ownership of the beach house in Louisiana state court. 7 This litigation rem ains pending in Louisiana state court, and plaintiff has not yet secured judicial recognition of her ownership of the property. 8 The events that gave rise to this federal action occurred after plaintiff filed suit in state court. On May 23, 20 14, Richard Bickerstaff executed a Second Mortgage on the Alabam a beach house and nam ed his wife, Defendant Carolyn Bickerstaff, as the m ortgagee. 9 The Second Mortgage purportedly secured a debt of $ 241,534 owed by Richard Bickerstaff to 3 4 5 6 7 8 9 Id. at 3. Id. at 4; R. Doc. 67-2 at 7-8. Id. R. Doc. 1 at 5; R. Doc. 67-2 at 10 . R. Doc. 72-2 at 1-2. R. Doc. 67 at 4; R. Doc. 72 at 5. R. Doc. 1 at 4; R. Doc. 67-2 at 3-6. 2 defendant. 10 Plaintiff alleges that the Second Mortgage is a sham and is part of a schem e by defendant to deprive plaintiff of her beach house. 11 On August 19, 20 15, plaintiff, acting through her legally appointed agent in fact and mandatary Gerald Gregory Bickerstaff, brought suit in this Court alleging that defendant engaged in fraud and negligence in relation to the Second Mortgage. 12 Richard Bickerstaff is not a party to this federal litigation. 13 Plaintiff asks the Court to find the Second Mortgage legally invalid and order rescission of the transaction and cancellation of the m ortgage from the public records. 14 Plaintiff also seeks damages and costs. 15 Defendant now m oves to dism iss plaintiff’s com plaint, arguing that plaintiff lacks standing to seek rescission of the mortgage because she does not own the property. 16 Plaintiff opposes this m otion. 17 10 R. Doc. 67-2 at 3. R. Doc. 1 at 4. 12 Id. at 3-5. Plaintiff also brought claim s against several other defendants, who have since been dism issed from this action. See R. Doc. 16; R. Doc. 52. In addition to fraud and negligence, plaintiff’s com plaint alleges collusion, breach of fiduciary duties, and breach of contract. These claims, however, appear directed at the now-dism issed Herbert defendants. In her opposition to the m otion to dism iss, plaintiff asserts that she is bringing fraud and negligence claim s against defendant. See R. Doc. 72 at 1. 13 R. Doc. 1. 14 Id. at 4. 15 Id. at 10 . 16 R. Doc. 67. 17 R. Doc. 72. 3 11 II. LEGAL STAN D ARD A plaintiff m ust satisfy the standing requirem ents of Article III of the Constitution in order to establish the existence of an “actual case or controversy.” O’Shea v. Littleton, 414 U.S. 488, 493-94 (1974). A m otion to dism iss for lack of standing therefore challenges the court’s subject m atter jurisdiction, and is governed by Federal Rule of Civil Procedure 12(b)(1). 18 As the party invoking federal jurisdiction, plaintiff bears the burden of establishing standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (20 16). When its subject m atter jurisdiction is challenged, the Court first considers whether the defendant has m ade a “facial” or a “factual” attack upon the com plaint. Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). In the case of a facial attack, the court “is required m erely to look to the sufficiency of the allegations in the com plaint because they are presum ed to be true.” Id. When a defendant m akes a factual attack on the com plaint, however, the plaintiff is “required to subm it facts through som e evidentiary m ethod and has the burden of proving by a preponderance of the evidence 18 Defendant presents her m otion as a m otion to dism iss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Because defendant argues that plaintiff lacks standing, the Court construes this as a motion to dism iss for lack of subject m atter jurisdiction under Fed. R. Civ. P. 12(b)(1). The Court denied defendant’s earlier m otion to dism iss for lack of subject m atter jurisdiction, but that m otion related to the separate issue of diversity jurisdiction. See R. Doc. 14. 4 that the trial court does have subject m atter jurisdiction.” Id.; see also Superior MRI Servs, Inc. v. Alliance Healthcare Servs, Inc., 778 F.3d 50 2, 50 4 (5th Cir. 20 15). A court’s dism issal of a case for lack of subject m atter jurisdiction is not a decision on the m erits, and the dism issal does not prevent the plaintiff from pursuing the claim in another forum . See Hitt v. City of Pasadena, 561 F.2d 60 6, 60 8 (5th Cir. 1977). III. D ISCU SSION Defendant’s m otion is a factual attack on plaintiff’s com plaint. A m otion to dism iss for lack of standing is “‘factual’ rather than ‘facial’ if the defendant ‘subm its affidavits, testim ony, or other evidentiary m aterials.’” Superior MRI Servs, 778 F.3d at 50 4 (quoting Paterson, 644 F.2d at 523). Here, defendant subm its property records in support of her contention that plaintiff does not own the beach house and lacks standing to seek rescission of the Second Mortgage. 19 See id. (finding a factual attack on standing where defendant subm itted official records). Moreover, plaintiff appears to treat 19 R. Doc. 67-1; R. Doc. 67-2. Although the property records subm itted by defendant were referenced in plaintiff’s complaint, they were not attached to the com plaint. Defendant relies on the content of the documents to challenge the factual assertion that plaintiff owns the property. For instance, defendant refers to the Assum ption Warranty Deed to argue that plaintiff personally signed the deed and that the transfer was supported by adequate consideration. See R. Doc. 67-1 at 10 -11. 5 the m otion as a factual attack. Plaintiff’s m emorandum in opposition cites to affidavit and deposition testim ony and attaches the notice of lis pendens as evidence of plaintiff’s claim to the property. 20 Plaintiff bears the burden of showing by a preponderance of the evidence that she has standing in this m atter. To establish standing, plaintiff m ust dem onstrate that she (i) suffered an “injury in fact” that is (ii) “fairly traceable to the challenged conduct of the defendant” and (iii) it m ust be “likely, as opposed to m erely speculative, that the injury will be redressed by a favorable judicial decision.” Lujan v. Defs. of W ildlife, 50 4 U.S. 555, 560 61 (1992) (internal citations om itted). Plaintiff asserts that she was injured by the defendant because the Second Mortgage on the beach house burdened her property with debt. 21 Defendant argues that plaintiff cannot establish injury from a loss of equity in property that she does not own and did not own when the m ortgage was filed. 22 To satisfy standing requirem ents, plaintiff’s injury must be “actual or im m inent, not conjectural or hypothetical.” Defs. of W ildlife, 50 4 U.S. at 560 . The “exam ination of whether a plaintiff has suffered a concrete injury” overlaps with the constitutional requirem ent that a case be sufficiently ripe 20 21 22 R. Doc. 72 at 7-8, 10 -11; R. Doc. 72-2. R. Doc. 1 at 5; R. Doc. 72 at 7. R. Doc. 78 at 4-5. 6 for judicial consideration. See Texas v. United States, 497 F.3d 491, 496 (5th Cir. 20 0 7). If a “purported injury is contingent on future events that m ay not occur as anticipated, or indeed may not occur at all, the claim is not ripe for adjudication.” Zepeda v. Boerne Indep. Sch. Dist., 294 F. App’x 834 (5th Cir. 20 0 8) (quoting Thom as v. Union Carbide Agr. Products, 473 U.S. 568, 581 (1985)). Plaintiff’s theory of injury in this case is too contingent to confer standing. The primary injury plaintiff com plains of is the deprivation of her beach house because of the actions of her brother, Richard Bickerstaff. 23 It is undisputed that the 20 10 Assum ption Warranty Deed purports to transfer ownership of the beach house from plaintiff to Richard Bickerstaff, who is shown to be the owner on the public record. 24 Plaintiff has not shown that she is currently the legal owner of the property, and the issue of ownership of the property is not before the Court to decide. Both parties agree that plaintiff’s challenge to the validity of the transfer of ownership m ust be resolved by the state court. 25 The injury plaintiff alleges in this litigation— increased debt on the beach house because of the Second Mortgage—will harm plaintiff only in the event that she is adjudicated to be the legal owner 23 24 25 See generally R. Doc. 1. R. Doc. 67-2 at 7-9; R. Doc. R. Doc. 67-1 at 4; R. Doc. 72 at 5. 7 of the property in state court. If plaintiff does not prevail in state court, her legal rights will be unaffected by the existence of a Second Mortgage between Richard Bickerstaff and defendant. For sim ilar reasons, plaintiff has not shown that a favorable decision by this Court is likely to redress her alleged injury. Richard Bickerstaff is not a defendant in this litigation, and both parties agree that ownership of the property is not at issue in this case. 26 The relief requested by plaintiff is the rescission and cancellation of the Second Mortgage. 27 But plaintiff is not a party to the Second Mortgage, and she has cited no authority under Louisiana law to indicate that the Court can order rescission of a m ortgage at the request of a non-owner of the property. See Aberta, Inc. v. Atkins, 89 So. 3d 1161, 1163 (La. 20 12) (explaining that the recorder of m ortgages m ust determ ine the legal owner of the property at issue before cancelling a m ortgage). Even if the Court could rescind the mortgage, despite the plaintiff’s unadjudicated claim of ownership and the absence of the m ortgagor from the proceedings, the rescission of the m ortgage would not rem edy any harm to the plaintiff unless she secures legal ownership of the property. The Court 26 27 See R. Doc. 67 at 4; R. Doc. 72 at 5. R. Doc. 1 at 4; R. Doc. 72 at 3, 5. 8 will not speculate as to the outcom e of the state court proceedings. See Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973) (explaining that the redressability of harm cannot be speculative). To the extent that plaintiff is also seeking damages from the defendant, she cannot establish an entitlem ent to damages without a showing of concrete injury. Because plaintiff has not established that she has Article III standing in this m atter, the Court lacks subject m atter jurisdiction. IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant’s m otion to dism iss. The Court DISMISSES WITHOUT PREJ UDICE plaintiff’s claim s for lack of subject m atter jurisdiction. New Orleans, Louisiana, this _ 25th _ day of August, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
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