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Myart v. Frost Bank

United States District Court, W.D. Texas, San Antonio Division

January 2, 2020

JAMES W. MYART JR., Plaintiff,
v.
FROST BANK, PAT FROST, PRESIDENT; PHILIP GREEN, CEO; JAMES WATERS, PRESIDENT; JORGE GUTIERREZ, TREY BANACK, JASON LISERIO, ANDREA KNIGHT, ATTORNEYS JOHN DOE 1-10, JEFF CARRANZA, Defendants.

          REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.

         To the Honorable Chief United States District Judge Orlando L. Garcia:

         This Report and Recommendation and Order concerns the following dispositive and nondispositive motions: Defendants' Rule 12(b)(6) Motion to Dismiss Plaintiff's Original Petition and Application for Temporary Restraining Order and Permanent Injunction [and in the Alternative] Rule 12(e) Motion for a More Definite Statement [#2]; Defendants' Rule 12(f) Motion to Strike [#3]; Plaintiff's Motion to Disqualify Attorneys and Law Firm and Request to Refer Matter to the State Bar of Texas Disciplinary Counel [sic] and Motion for Contempt and Sanctions and Request for Emergency Hearing [#11]; Plaintiff's Motion for Leave to File Second Motion for 90 Day Stay with Medical Evidence [#28]; Defendants' Response to Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs for Appeal Purposes and Defendants' Motion to Dismiss under 28 U.S.C. § 1915 [#29]; Plaintiff's Motion for Status Conference by District Judge Only [#40]; Plaintiff's Motion to Lift Stay and Various Notices to the Court [#41].

         All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#6]. The undersigned has authority to enter this recommendation regarding the pending dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned has authority to enter this order regarding the pending nondispositive motions pursuant to 28 U.S.C. § 636(b)(1)(A).

         For the reasons set forth below, it is recommended that Defendants' Rule 12(b)(6) Motion to Dismiss Plaintiff's Original Petition and Application for Temporary Restraining Order and Permanent Injunction [and in the Alternative] Rule 12(e) Motion for a More Definite Statement [#2] be GRANTED and Plaintiff's Motion to Disqualify Attorneys and Law Firm and Request to Refer Matter to the State Bar of Texas Disciplinary Counel [sic] and Motion for Contempt and Sanctions and Request for Emergency Hearing [#11] be DENIED.

         The Court will also DISMISS AS MOOT Defendants' Rule 12(f) Motion to Strike [#3]; DENY Plaintiff's Motion for Leave to File Second Motion for 90 Day Stay with Medical Evidence [#28]; DISMISS AS MOOT Defendants' Motion to Dismiss under 28 U.S.C. § 1915 [#29]; GRANT IN PART Plaintiff's Motion to Lift Stay and Various Notices to the Court [#41]; and LEAVE PENDING Plaintiff's Motion for Status Conference by District Judge Only [#40] for resolution by the District Court.

         I. Procedural Background

         Plaintiff James W. Myart, Jr., proceeding pro se, originally filed this action in the 131st Judicial District Court of Bexar County, Texas on June 21, 2019, against Frost Bank, Pat Frost, Philip Green, James Waters, Jorge Guiterrez, Trey Banack, Jason Liserio, Andrea Knight, Jeff Carranza, and Attorneys John Doe 1-10. (Orig. Pet. [#1-3] at 2.) Plaintiff has sued all individually named Defendants in both their official and individual capacities. (Id.) Plaintiff alleges that Defendants improperly closed his two bank accounts at Frost Bank. (Id. at 14.) Plaintiff accuses Defendants of being motivated by “racial hatred and animus” and refers to Frost Bank as “The Last Plantation” throughout his Petition. (Id. at 15.) Although Plaintiff's Petition comprises 33 pages, the only facts he alleges with respect to the closure of his accounts are (1) “The Defendants actions of closing his account was retaliatory because he interceded in a debate between a clerk and a black female customer”; and (2) Defendants gave him no reason for why his bank accounts were closed, but “on information and belief, the action was taken in retaliation for plaintiff Myart interceding on a racial circumstance at their branch bank.” (Id. at 4, 14, 20.) In addition to these allegations, Plaintiff's Petition contains other confusing and conclusory allegations regarding income tax returns, eviction from land by the U.S. Marshalls, administrative complaints, the Kansas Constitution, the right to make a living as a farmer, and the denial of participation in loan programs. (See generally id.) It is unclear whether these additional allegations involve events personal to Plaintiff or constitute general historical background with respect to Plaintiff's allegations of racial discrimination. In any event, they are not linked in any way to the defendants he has sued in this lawsuit.

         Plaintiff's Petition asserts the following causes of action: (1) race discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq.; (2) race discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982; (3) violation of the Equal Credit Opportunity Act of 1972, 15 U.S.C. § 1691, et seq.; (4) violation of Article I, Section 1 of the Texas Constitution; and (5) conspiracy and conversion. (Id. at 30-34.) Plaintiff seeks $5, 000, 000 in damages and an injunction reinstating his two bank accounts. (Id. at 28, 34.) The state court issued two temporary restraining orders (“TROs”) on June 21, 2019 and June 24, 2019 prior to removal, which automatically expired under the 14-day limit for TROs imposed by the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 680.

         Five days after his lawsuit was filed, Defendants removed Plaintiff's Petition to this court. (Notice of Removal [#1].) Although Plaintiff requested the issuance of summons as to Frost Bank, Pat Frost, Jorge Guiterrez, and Andrea Knight, none of these Defendants were formally served with process prior to removal. (Id. at 2.) Nonetheless, all named Defendants joined in the Notice of Removal. (Id.) Immediately following removal, all named Defendants filed the motion to dismiss and motion to strike currently before the Court, as well as an Answer [#4]. By their motion to dismiss, Defendants ask the Court to dismiss all of Plaintiff's claims pursuant to Rule 12(b)(6) or for an order directing Plaintiff to file a more definite statement pursuant to Rule 12(e). By their motion to strike, Defendants ask the Court to strike those paragraphs in Plaintiff's Petition that are “redundant, immaterial, impertinent and scandalous and constitute an attempt by Plaintiff to place before the Court and the jury prejudicial statements that otherwise would not be admissible” pursuant to Rule 12(f). (Mot. to Strike [#3] at 1.) Plaintiff's responses to Defendants' motions were due on July 15, 2019. See W.D. Tex. Loc. R. CV-7(e) (response to dispositive motion due within 14 days of the motion's filing); Fed.R.Civ.P. 6(a), (d) (adding three days to response deadline for service by mail).

         Plaintiff did not file his response to either motion by the July 15, 2019 deadline. Instead, on July 26, 2019, Plaintiff filed a motion requesting a 90-day stay of all deadlines in this case due to Plaintiff's medical issues, including his deadline to respond to Defendants' motions to dismiss, and a motion to disqualify counsel (which remains pending). The Court held a status conference to address the requested stay on August 7, 2019. After hearing the arguments of Plaintiff at the conference, considering Plaintiff's substantial litigation activity in this and other cases leading up to the conference, and reviewing the medical evidence attached to Plaintiff's motion, the Court denied Plaintiff's request for a 90-day stay of the entire case, but stayed all discovery pending the resolution of Defendants' motions to dismiss [#18]. In the same Order, the undersigned ordered that any party seeking to file any document in this case must first seek leave of court. Plaintiff appealed this Order to the District Court and requested the removal of the undersigned from this case, alleging bias. The District Court affirmed the Order denying the 90-day stay and denied Plaintiff's request to remove the undersigned [#26]. Plaintiff finally filed a response to Defendants' motions on October 2, 2019, over two months after the deadline to do so had expired [#34].

         Since the Court's August 2019 status conference, Plaintiff has filed a motion for leave to file another 90-day stay of this case [#28], a motion for a status hearing before a District Judge [#40], and motion to lift the stay and proceed with this case [#41]. Plaintiff also filed two appeals to the Fifth Circuit, both of which were dismissed for lack of jurisdiction. The only other matter remaining for the Court's disposition is Defendants' Response to Plaintiff's Application to Proceed In District Court without Prepaying Fees or Costs for Appeal Purpose and Defendants' Motion to Dismiss Under 28 U.S.C. § 1915 [#29]. This filing is predominantly a response to a motion to proceed in forma pauperis on appeal that Plaintiff filed in another case, Cause No. 5:19-CV-507-OLG, but also asks the Court to dismiss this case with prejudice pursuant to 28 U.S.C. § 1915. The undersigned now considers each of the seven pending motions in this case in turn.

         II. Plaintiff's Motion for Leave to File a Motion for 90-Day Stay [#28] and Motion to Lift Stay [#41]

         Plaintiff asks the Court for leave to file another motion for a 90-day stay of this case due to his medical issues. Attached to the motion are over one hundred pages of medical evidence demonstrating that Plaintiff has been hospitalized numerous times in the past several months, has lost eyesight in his right eye, and suffers from end-stage renal disease. (Med. Records [#28-1].) Plaintiff also filed additional supplemental records in support of his motion. (Med. Records [#30-1, 34, 44].) In his motion, Plaintiff accuses the undersigned and the District Court of not caring about his medical condition or believing him to be lying to the Court about his illnesses. To the contrary, Plaintiff has sufficiently documented that he suffers from serious medical conditions, which have at times required his hospitalization. Nonetheless, the Court will deny leave to file a second request for a 90-day stay for the following reasons.

         This case is currently at the preliminary stage in which the Court is asked to decide threshold issues raised in the motion to dismiss filed by Defendants. At the motion-to-dismiss stage the Court reviews only the plausibility of Plaintiff's pleadings and does not consider any evidence. Accordingly, there is no need for discovery or any other action by Plaintiff, aside from a response to the pending motion to dismiss or supplemental pleading clarifying Plaintiff's allegations to demonstrate that they give rise to valid causes of action under the law. Discovery has been stayed pending the resolution of Defendants' motions. Other than supplementing his pleadings or filing objections, nothing else is required of Plaintiff at this time and a stay of the entire case is unnecessary.

         Moreover, even if discovery and other aspects of the litigation were proceeding (and thus a stay would have a bigger impact), the Court would deny the motion. Plaintiff has filed dozens of pleadings, motions, and appeals in this case and other cases pending before this Court[1] since Defendants filed their motion to dismiss and to strike Plaintiff's pleadings. He has demonstrated that, although his illness may be serious, he is capable of drafting hundreds of pages of court filings and actively pursuing multiple cases before this Court and others.

         Finally, Plaintiff has also most recently filed a motion to lift the stay in this case [#41], complaining about the delay in the issuance of any rulings in his case and the lack of a scheduling order and a date for trial.[2] It appears therefore that Plaintiff is abandoning his request for a stay. The Court therefore will deny the current pending motion for leave to file a motion to stay and grant in part Plaintiff's motion to lift the stay and proceed with this case.

         III. Defendants' Motion to Dismiss [#2] and Motion to Strike [#3]

         The Court should grant the motion to dismiss filed by Defendants, and the undersigned will dismiss as moot the motion to strike.

         A. Legal Standards

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Although a complaint “does not need detailed factual allegations, ” the “allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations pleaded must show “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal quotation omitted). However, a Court need not credit conclusory allegations or allegations that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678). In short, a claim should not be dismissed unless the court ...


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