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Burgess v. Ally Bank

United States District Court, M.D. Tennessee, Nashville Division

January 28, 2015



JULIET GRIFFIN, Magistrate Judge.

By Order entered December 12, 2014 (Docket Entry No. 53), this action was referred to the Magistrate Judge, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Rule 72(a) and (b) of the Federal Rules of Civil Procedure, for further pretrial matters.

Presently pending in this action is the Defendant's motion to dismiss (Docket Entry No. 26), to which the Plaintiff has filed a response in opposition (Docket Entry Nos. 45 and 46).[1] Also before the Court is the Defendant's reply (Docket Entry No. 51). For the reasons set out below, the Court recommends that the motion to dismiss be granted.


The Plaintiff filed this lawsuit pro se on August 15, 2014, against Ally Bank seeking various types of damages. Although he stated in the Complaint that the lawsuit was brought as an appeal from a decision rendered in the Davidson County General Sessions Court, he asserted that federal question jurisdiction existed under 28 U.S.C. § 1331[2] and set out claims that Ally Bank had violated Regulation E.[3] See Complaint (Docket Entry No. 1). His claims were based upon events that arose after a merchant, Snap Fitness, charged a $25.00 fee to a check card issued to the plaintiff by Ally Bank. The plaintiff disputed the validity of the fee to the merchant and also to Ally Bank, through a Regulation E claim, and he ultimately filed suit against Ally Bank and Snap Fitness in the General Sessions Court for Davidson County, Tennessee, on July 1, 2014. The state court action was dismissed in favor of the two defendants on August 12, 2014. See Exhibit 1 (Docket Entry No. 1-1) to Complaint, at 1, and Docket Entry No. 7-2.

Defendant Ally originally moved to dismiss the instant action under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that this Court lacked jurisdiction to adjudicate the Plaintiff's request for an appeal of the General Sessions Court decision under the Rooker-Feldman doctrine and that the federal lawsuit was the second lawsuit brought by the Plaintiff against Ally Bank based on the same claims and was barred by res judicata. See Docket Entry No. 7. By Order entered September 16, 2014 (Docket Entry No. 11), the Court granted the Plaintiff's motion to file an amended complaint and denied the Defendant's motion to dismiss without prejudice to being renewed after the amended complaint was filed. The Plaintiff filed his Amended Complaint (Docket Entry No. 22), and the Defendant again moved to dismiss the action.

In his Amended Complaint, the Plaintiff deleted any references to the General Sessions lawsuit and judgment, removed his request for an appeal of the decision of the General Sessions Court, and significantly revised the factual allegations of his pleading to minimize any reference to the dispute with the merchant and Ally Bank over the $25.00 fee. See Docket Entry No. 22, at 1-2. The Plaintiff then asserted claims of violations of Regulation E, violations of "UDAAP under Dodd-Frank Act, " violations of Tenn. Code. Ann. § 47-18-104, fraud, and breach of contract. Id. at 3-5. The Plaintiff also stated that he would be filing a motion "for class action status shortly" and sought various forms of damages as relief. Id.

In the pending motion to dismiss, the Defendant argues that the Amended Complaint should be dismissed because the instant action continues to be barred by res judicata even in light of the new allegations and claims made by the Plaintiff. The Defendant further argues that the Rooker-Feldman doctrine bars this Court from hearing the Regulation E claims that were raised, heard, and dismissed in the Plaintiffs' prior General Sessions lawsuit. Finally, the Defendant contends that there is no private cause of action under the Dodd-Frank Act as referenced by the Plaintiff and that the Amended Complaint is lacking in specific factual allegations that support claims for relief based on the other three new causes of action set out in the Amended Complaint.

The Plaintiff opposes the motion to dismiss, arguing that it is untimely and should be summarily denied for that reason alone. See Docket Entry No. 45, at 1-3. The Plaintiff also contends that his Amended Complaint does not seek to overturn the decision of the General Sessions Court and that his action does not rely upon the same core facts as were at issue in the General Sessions lawsuit but is based upon Defendant Ally Bank's alleged non-compliance with the terms and provisions of its Deposit Agreement with the Plaintiff. Id. at 3-4.


A motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is reviewed under the standard that the Court must accept as true all of the allegations contained in the complaint, resolve all doubts in the plaintiff's favor, and construe the complaint liberally in favor of the pro se plaintiff. See Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Morgan v. Church's Fried Chicken, 829 F.2d 10, 11-12 (6th Cir. 1987). However, although the complaint need not contain detailed factual allegations, the plaintiff must provide the grounds for his entitlement to relief and this "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The factual allegations supplied must be enough to show a plausible right to relief. Twombly, 550 U.S. at 555-61. More than bare assertions of legal conclusions are required to withstand a motion to dismiss and the complaint must contain either direct or inferential allegations respecting all of the material elements to sustain a recovery under some viable legal theory. Id .; Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir. 1988). The Court need not accept as true legal conclusions or unwarranted factual inferences. See Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6th Cir. 2000), abrogated in part on other grounds, Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Although Rule 8 of the Federal Rules of Civil Procedure does not constitute a "hyper-technical, code-pleading regime, " it "does not unlock the doors of discovery for a Plaintiff armed with nothing more than conclusions." Iqbal, 566 U.S. at 678-79. A complaint does not "suffice if it tenders naked assertions' devoid of further factual enhancement.'" Id. at 678 (quoting Twombly, 550 U.S. at 557).

The plaintiff's status as a pro se litigant requires the Court to view his pleading with some measure of a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, the "lenient treatment generally accorded to pro se litigants has limits." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). "Neither this Court nor other courts... have been willing to ...

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