United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendant USAA Federal Savings Bank's
(“USAA”) Motion to Dismiss Pursuant to Federal
Rules of Civil Procedure 12(b)(3), (5), and (6) (Dkt. #16).
After reviewing the relevant pleadings and motion, the Court
finds USAA's motion should be granted.
case arises out of a debt owed by Plaintiff Daniel Diclementi
to USAA. Plaintiff alleges USAA failed to honor a
renegotiation contract that he and Defendant Viking Client
Services (“Viking”), on behalf of USAA, entered
into. As a result of the alleged breach, Plaintiff filed suit
in Denton County, Texas for breach of contract, breach of
implied covenant of good faith and fair dealing, and various
violations of the Texas Fair Debt Collection Practices Act.
On July 7, 2017, Viking removed the case to this Court (Dkt.
November 2, 2017, USAA filed its Motion to Dismiss (Dkt.
#16). On November 16, 2017, Plaintiff filed his response
(Dkt. #17), and on November 27, 2017, USAA filed its reply
Rule of Civil Procedure 12(b)(3) allows a party the ability
to move the Court to dismiss an action for “improper
venue.” Once a defendant raises improper venue by
motion, “the burden of sustaining venue will be on
Plaintiff.” Cincinnati Ins. Co. v. RBP Chemical
Tech., Inc., No. 1:07-CV-699, 2008 WL 686156, at *5
(E.D. Tex. Mar. 6, 2008) (citations omitted).
“Plaintiff may carry this burden by establishing facts
that, if taken to be true, establish proper venue.”
Id. (citations omitted). The Court “must
accept as true all allegations in the complaint and resolve
all conflicts in favor of the plaintiff.” Mayfield
v. Sallyport Global Holdings, Inc., No. 6:16-CV-459,
2014 WL 978685, at *1 (E.D. Tex. Mar. 5, 2014) (citing
Ambraco, Inc. v. Bossclip, B.V., 570 F.3d 233,
237-38 (5th Cir. 2009)). In determining whether venue is
proper, “the Court may look beyond the complaint to
evidence submitted by the parties.” Ambraco,
570 F.3d at 238. If venue is improper, the Court must dismiss
it, “or if it be in the interest of justice, transfer
such case to any district or division in which it could have
been brought.” 28 U.S.C. § 1406(a); Fed.R.Civ.P.
Rule of Civil Procedure 12(b)(5) provides that a party may
file a motion to dismiss for insufficient service of process.
A district court has “broad discretion to dismiss an
action for ineffective service of process.”
Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d
634, 645 (5th Cir. 1994). Federal Rule 4(m) permits dismissal
of a suit if the plaintiff fails to serve a defendant within
90 days of filing, but provides that “if the plaintiff
shows good cause for the failure, the court shall extend the
time for service for an appropriate period.”
Fed.R.Civ.P. 4(m); Gartin v. Par Pharm. Cos., Inc.,
289 Fed.Appx. 688, 692 (5th Cir. 2008). “[G]ood cause
under Rule 4(m) requires at least as much as would be
required to show excusable neglect, as to which simple
inadvertence or mistake of counsel or ignorance of the rules
usually does not suffice.” Gartin, 289
Fed.Appx. at 692 (citing Lambert v. United States,
44 F.3d 296, 299 (5th Cir. 1999)).
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face.
‘“A claim has facial plausibility when the
plaintiff pleads factual content that allows the [C]ourt to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“But where the well- pleaded facts do not permit the
[C]ourt to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 Fed.Appx. 466, 470 (5th Cir. 2009) (citation