Leach v. Wehling

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.

         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(S), on Plaintiff's complaint (Doc. 1), Defendant Regions Bank's motion to dismiss complaint (Doc. 11), Plaintiff's response in opposition (Doc. 17), and Regions Bank's reply (Doc. 22). Upon consideration of these pleadings, as well as other pleadings in the file, the Magistrate Judge RECOMMENDS that the Court GRANT Regions Bank's Rule 12(b)(1) motion to dismiss complaint for lack of subject matter jurisdiction (Doc. 11) and DISMISS the entirety of this action for lack of subject matter jurisdiction.^[1]

         FACTUAL AND PROCEDURAL BACKGROUND

         On October 19, 2018, David Leach, as Personal Representative of the Estate of Henry S. Lockett, filed a complaint in this Court in which he generally avers that this Court may exercise diversity jurisdiction and that there are questions of federal banking laws. (See Doc. 1, at 1-2). Plaintiff states in the complaint that he is the Personal Representative of the Estate of Henry Lockett by virtue of Lockett's will (id. at 3) and attaches pages of Lockett's Last Will and Testament, dated December 11, 2015, to reflect Lockett's nomination and appointment of Leach as his Personal Representative under his will (see Doc. 1, Exhibit 1, at 1).^[2] Plaintiff also asserts that the Wehlings acted in concert to transfer assets of Lockett's Estate in violation of the Alabama Uniform Power of Attorney Act;^[3] suggests that Mary Wehling has engaged in fraud and/or breached her fiduciary duties as Lockett's Agent and Attorney-in-Fact under the Durable Power of Attorney executed by Lockett on March 15, 2015;^[4] and that Mary Wehling refuses to give Plaintiff, the Personal Representative of Lockett's Estate, a record of receipts, disbursements and transactions made on behalf of the Principal (that is, Lockett). (See Doc. 1, at 3-5)^[5].

         As for Regions Bank, Plaintiff generally avers that his uncle, Henry Lockett, relied on the bank to protect his assets and that when he (Leach) went to the Regions Bank branch in Robertsdale on three occasions to inquire about his uncle's assets, he was turned away on each occasion, being told on the first occasion that Mary Wehling instructed the Bank not to give Plaintiff any information about the accounts (Doc. 1, at 5-7); however, Plaintiff claims he was allowed access to his uncle's accounts and safety deposit box on the fourth time he returned to the Bank after involving an unnamed attorney who contacted the Bank's legal department (id. at 7). Plaintiff alleges that the Bank's actions “could be interpreted as fraud by suppression;” that Regions Bank has “consciously or deliberately engaged in wantonness in connection with its actions[;]” that Regions violated Alabama's Uniform Power of Attorney Act by accepting the Power of Attorney offered it by Mary Wehling;^[6] and that Regions aided and abetted bank fraud in violation of 18 U.S.C. § 1344. (See Id. at 7 & 9-10).

         By their answers, Mary and Eugene Wehling admit to being resident citizens of Baldwin County, Alabama (see Docs. 6 & 7, at 2), and Regions Bank has supplied this Court with evidence that it was incorporated in Alabama and has its principal place of business in Birmingham, Alabama (Doc. 11, Exhibit A, at 2). And in response to Region Bank's motion to dismiss, Plaintiff agrees that Henry Lockett was a citizen of Alabama at the time of his death. (Doc. 17, at 2; see also Doc. 11, Exhibit B, Petition for Letters Testamentary, at ¶ 4 (“[A]t the time of his death, the decedent [Henry Scott Lockett] was over the age of nineteen years and a bona fide resident citizen of Baldwin County, Alabama.”)). In addition, while Plaintiff alleges in his response that the damages suffered in this matter are Leach's alone (see Doc. 17, at 2 (“Plaintiff states the damages he seeks from defendants relate to David Leach and not the estate. None of the assets I seek went through the estate. I do use the estate to substantiate my claim.”)), he maintains that Leach is bringing this action as personal representative of Lockett (see Id. at 1 (“On December 11, 2015 Henry Lockett made a will naming plaintiff, David Leach, his personal representative. As personal representative, Plaintiff, David Leach, speaks as if Henry Lockett were speaking himself. In addition, H.L. gave plaintiff full power and authority without permission from any court over the estate. With this absolute power, plaintiff seeks to find the assets that belong to David Leach. Plaintiff is talking about the assets H.L. had 12-11-15 when H.L. executed his will.”)), who, as aforesaid, Plaintiff concedes was a citizen of Alabama at the time of his death (id. at 2). Finally, in his response to the motion to dismiss, Plaintiff suggests that the Bank failed to follow monitoring procedures required by federal law;^[7] that the Bank failed to investigate Mary Wehling; that the Bank failed to follow its own policies and procedures and was, thereby, negligent; that the Bank made misrepresentations to him; and otherwise expounds on his complaint by suggesting that in violating Alabama's New Uniform Power of Attorney Act, the Bank possibly violated 18 U.S.C. § 1344. (Doc. 17, at 3-4).

         CONCLUSIONS OF LAW

         This Court must first address the jurisdictional challenge interposed by Regions Bank, as well as the Wehlings. Cornwall v. Centerstate Bank of Florida, N.A., 2016 WL 3219725, *1 (M.D. Fla. June 10, 2016), citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (“The [district] court should have addressed the personal jurisdiction question first.”). This is so because district courts are “courts of limited jurisdiction” that are “empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution.” University of South Alabama v. American Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (citation and quotations omitted); see also Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) (“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]” (internal citations omitted)). Stated differently, because federal courts are courts of limited jurisdiction “[i]t is . . . presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]” Kokkonen, supra, 511 U.S. at 377, 114 S.Ct. at 1675 (internal citations omitted). And, indeed, even though it is clear that “[p]leadings filed by pro se litigants are given liberal construction, ” these litigants are “'required [] to conform to procedural rules[, ]'” Cornelius v. U.S. Bank Nat'l Ass'n, 452 Fed.Appx. 863, 865 (11th Cir. Nov. 29, 2011), ^[8] quoting Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir. 2011), and, as a consequence, “must ‘affirmatively allege facts demonstrating the existence of jurisdiction.'” Id., quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (other citation omitted).

         Before looking at the different types of subject matter jurisdiction this Court may exercise, the undersigned notes that a motion to dismiss filed under Rule 12(b)(1), as here, “may be based upon either a facial or factual challenge to the complaint.” Williamson v. Secretary of Veteran Affairs, 139 F.Supp.3d 1282, 1285 (N.D. Ala. 2015), citing McElmurray v. Consolidated Gov't of Augusta-Richmond Cty., 501 F.3d 1244 (11^th Cir. 2007).

“Facial attacks” on the complaint “require[] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). “Factual attacks, ” on the other hand, challenge “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.” Id.

These two forms of attack differ substantially. On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion-the court must consider the allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). But when the attack is factual,

the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Id. at 412-13 (quoting Mortensen, 549 F.2d at 891).

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). The attack made by Regions Bank in this case, at least as it relates to Plaintiff's assertion of diversity jurisdiction (see Doc. 11, at 2 & 4-6), is a factual attack. And the material that Regions Bank has attached to its motion to dismiss in support of its Rule 12(b)(1) challenge (that is, the Restated Articles of Incorporation of Regions Bank and the Petition for Letters Testamentary) may be considered by this Court without converting the Rule 12(b)(1) request into a motion for summary judgment. Compare Favors-Morrell v. United States, 2016 WL 1306195, *2 (S.D. Ga. Mar. 31, 2016) (“As Defendant relies on the Bearden Affidavit in support of its Motion under Rule 12(b)(1), not 12(b)(6), . . . the presence of the Affidavit neither transforms the nature of the Motion nor alters the analysis at this ...