United States District Court, S.D. Alabama, Southern Division
DAVID LEACH, Personal Representative of the Estate of Henry S. Lockett, Plaintiff,
v.
MARY WEHLING, et al., Defendants.
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 (11th
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 ...