# Yarbrough v. Swift

> District Court, E.D. Louisiana · November 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10184985

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** November 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NORMA YARBROUGH CIVIL ACTION

VERSUS NO. 18-10093

CHRISTOPHER SWIFT, et al. SECTION: “G”(1)

ORDER AND REASONS
In this litigation, Plaintiff Norma Yarbrough (“Plaintiff”) alleges that Defendants Deborah
Jackson, Sheral Kellar, Gwendolyn Thompson, Christopher Swift, David Jaffe, Elliot Jaffe, and
Edward J. Cloos (collectively, “Defendants”) violated her constitutional rights in connection with
her work-related accident.1 Before the Court is Defendant Edward J. Cloos’s (“Cloos”) “Motion
to Dismiss.”2 In the instant motion, Cloos argues that Plaintiff’s federal claims should be
dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).3 Cloos also
argues that Plaintiff’s fraud claims should be dismissed because they are not pleaded with the
required “particularity” under Federal Rule of Civil Procedure 9(b).4 After considering the
motion, the memoranda in support and in opposition, the record, and the applicable law, the Court
grants the instant motion in part to the extent it requests dismissal of Plaintiff’s federal claims.
The Court declines to exercise supplemental jurisdiction over any remaining state law claims.

1 Rec. Doc. 3-1.
2 Rec. Doc. 30.
3 Rec. Doc. 30-1 at 4.
4 Id. at 2.
I. Background
A. Factual Background
In the Complaint, Plaintiff alleges she experienced a work-related accident that left her
disabled while an employee with Dress Barn.5 Plaintiff asserts that Defendants violated her

constitutional rights in failing to provide benefits related to her injury.6 According to the
Complaint, Plaintiff engaged Defendant Cloos as her legal counsel for a worker’s compensation
claim.7 Plaintiff asserts that Cloos did not provide her with diligent representation and did not
protect her interests.8
Plaintiff also alleges Gwendolyn Thompson, the judge who presided over her worker’s
compensation claim, failed to protect Plaintiff’s interests by not ruling that Plaintiff was
incompetent to sign a settlement agreement while she was taking prescribed narcotics.9
Additionally, Plaintiff alleges Defendant Christopher Swift, as the representative for The Hartford
Insurance, denied Plaintiff medical benefits and terminated her life insurance policy.10 Finally,

Plaintiff alleges Defendant Sheral Kellar, Assistant Secretary of the Louisiana Workforce
Commission, refused to assist Plaintiff with her medical claims.11

5 Rec. Doc. 3-1 at 3.
6 Id.
7 Id.
8 Id.
9 Id. at 3.
10 Id. at 3–5.
11 Id. at 4–6.
B. Procedural Background
On October 29, 2018, Plaintiff filed a Complaint against Defendants.12 On February 6,
2019, the Court issued a Show Cause Order, finding that none of the Defendants had been
served.13 The Show Cause Order stated, “absent an appearance by the defendant or request for

entry of default upon that defendant,” Plaintiff must show cause on or before March 8, 2019 why
certain defendants should not be dismissed for failure to prosecute.14
On February 13, 2019, Plaintiff submitted documents as evidence of service of process on
Defendants.15 However, Defendants Deborah Jackson, Christopher Swift, David Jaffe, and Elliot
Jaffe never answered the Complaint and never appeared before this Court. Thus, on April 12,
2019, the Court dismissed Defendants Deborah Jackson, Christopher Swift, David Jaffe, and
Elliot Jaffe because Plaintiff did not request a default judgment or show cause why the defendants
should not be dismissed for Plaintiff’s failure to prosecute.16
Thereafter, the Court granted a Motion to Dismiss filed by Defendants Gwendolyn
Thompson (“Thompson”) and Sheral Kellar (“Kellar”).17 The Court found that Plaintiff could not

sue Kellar and Thompson under 42 U.S.C. § 1983 in their official capacities.18 The Court also
determined that Thompson and Kellar were immune from suit in their individual capacities
because Plaintiff failed to allege facts which could overcome Thompson’s judicial immunity and

12 Rec. Doc. 1.
13 Rec. Doc. 6.
14 Id.
15 Rec. Docs. 8–14.
16 Rec. Doc. 21.
17 Rec. Doc. 38.
18 Id. at 21.
Kellar’s qualified immunity.19
On July 8, 2019, Cloos, the last remaining defendant in this case, filed the instant motion
to dismiss.20 On July 26, 2019, the Court granted Plaintiff’s request for an extension of time to
respond to the instant motion.21 On August 28, 2019, Plaintiff filed an opposition to the instant

motion.22
II. Parties’ Arguments
A. Cloos’s Arguments in Support of the Motion to Dismiss
Cloos summarizes the complaint as alleging two causes of action: (1) violation of
“constitutional rights” and (2) fraud or mistake.23 Cloos argues that each cause of action must be
dismissed.24 First, with respect to the violation of Plaintiff’s “constitutional rights,” Cloos argues
that the Constitution primarily concerns the relationship between citizens and the government
and, in this case, the complaint expresses that Cloos and Plaintiff are both private citizens of
Louisiana.25 Cloos contends Plaintiff does not allege Cloos is an agent of the State.26 As a result,

Cloos concludes “it is difficult to imagine under what provision of the Constitution it would be
possible to plead a ‘plausible on its face’ claim arising from the lawyer/client relationship” alleged

19 Id.
20 Rec. Doc. 30.
21 Rec. Doc. 32.
22 Rec. Doc. 34.
23 Rec. Doc. 30-1 at 2.
24 Id. at 2–5.
25 Id. at 4.
26 Id.
in the complaint.27
Second, with respect to Plaintiff’s fraud claim, Cloos argues that Federal Rule of Civil
Procedure 9(b) requires a party to “state with particularity the circumstances constituting fraud or
mistake.”28 Cloos quotes Fifth Circuit precedent that requires a party under Rule 9(b) to allege

the “who, what, when, where, and how of the alleged fraud.”29 Cloos argues that Plaintiff alleges
“who” committed the fraud but does not allege any “what, when, where, and how.”30 Cloos
concludes that the complaint does not satisfy the heightened pleading requirement under Rule
9(b).31 Yet, even if properly pleaded under Rule 9(b), Cloos argues that Plaintiff “may not bring
a suit grounded in State law under the principle of diversity” because Cloos and Plaintiff are both
indisputably Louisiana residents.32
B. Plaintiff’s Arguments in Opposition to Cloos’s Motion to Dismiss
In opposition, Plaintiff argues that the Court should deny the instant motion because Cloos
failed to provide Plaintiff with adequate legal representation.33 First, Plaintiff argues that Cloos
forced her to sign a settlement agreement.34 Second, Plaintiff argues that Cloos left her with

unpaid medical expenses and refused to provide medical documentation.35 Third, Plaintiff argues

27 Id.
28 Id. at 2 (quoting Fed. R. Civ. P. 9(b)).
29 Id. (quoting Rafizadeh v. Continental Common, Inc. 553 F.3d 869, 874 (5th Cir. 2008)).
30 Id. at 3.
31 Id.
32 Id. at 4.
33 Rec. Doc. 34.
34 Id. at 1.
35 Id. at 2.
that Cloos did not provide adequate representation regarding social security issues.36 For those
reasons, Plaintiff argues Cloos’s motion to dismiss should be denied.37 Plaintiff does not provide
any response to Cloos’s argument that Plaintiff’s fraud claims are not particularly pleaded as

required by Rule 9(b).
III. Legal Standard
A. Legal Standard for a Motion to Dismiss under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”38 A motion to dismiss for failure to
state a claim is “viewed with disfavor and is rarely granted.”39 “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that
is plausible on its face.”40 “Factual allegations must be enough to raise a right to relief above the
speculative level.”41 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to draw a “reasonable inference that the defendant is liable for the misconduct alleged.”42

On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.43 Although required to accept all “well-pleaded facts” as

36 Id.
37 Id.
38 Fed. R. Civ. P. 12(b)(6).
39 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
40 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal
quotation marks omitted).
41 Twombly, 550 U.S. at 555.
42 Iqbal, 556 U.S. at 678.
43 Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see also
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
true, a court is not required to accept legal conclusions as true.44 “[L]egal conclusions can provide
the framework of a complaint, [but] they must be supported by factual allegations.”45 Similarly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.46 The complaint need not contain detailed factual allegations, but it

must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action.47 That is, the complaint must offer more than an “unadorned, the defendant-
unlawfully-harmed-me accusation.”48 From the face of the complaint, there must be enough
factual matter to raise a reasonable expectation that discovery will reveal evidence as to each
element of the asserted claims.49 If factual allegations are insufficient to raise a right to relief
above the speculative level, or if it is apparent from the face of the complaint that there is an
“insuperable” bar to relief, the claim must be dismissed.50
B. Legal Standard for Fraud Claims under Rule 9(b)
Federal Rule of Civil Procedure 9(b) subjects fraud claims to a heightened pleading
standard.51 Rule 9(b) requires a party to “state with particularity the circumstances constituting

44 Iqbal, 556 U.S. at 677–78.
45 Id. at 679.
46 Id. at 678.
47 Id.
48 Id.
49 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
50 Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010
WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
51 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008) (quoting Herrmann Holdings Ltd. v. Lucent
Techs. Inc., 302 F.3d 552, 564–65 (5th Cir. 2002)).
fraud or mistake.”52 The Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to
specify the statements contended to be fraudulent, identify the speaker, state when and where the
statements were made, and explain why the statements were fraudulent.”53 Put another way, “Rule
9(b) requires ‘the who, what, when, where, and how’ to be laid out.”54 Finally, “although scienter

may be ‘averred generally,’ . . . pleading scienter requires more than a simple allegation that a
defendant had fraudulent intent.55 To adequately plead scienter, “a plaintiff must set forth specific
facts that support an inference of fraud.”56
C. Legal Standard for Supplemental Jurisdiction
If a court has original jurisdiction over a federal claim pursuant to 28 U.S.C. § 1331, the
court also has supplemental jurisdiction over related state law claims if the state law claims are
“so related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.”57 Upon dismissal of the
federal claim that served as the basis for original jurisdiction, the district court retains its statutory
supplemental jurisdiction over the state law claims.58 Yet it may choose whether or not to exercise

that jurisdiction.59 “A district court’s decision whether to exercise [supplemental] jurisdiction

52 Fed. R. Civ. P. 9(b).
53 Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th Cir. 2009).
54 Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 723 (5th Cir. 2003) (quoting Williams v. WMX Techs.,
Inc., 112 F.3d 175, 179 (5th Cir. 1997).
55 Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994) (quoting Fed. R. Civ. P. 9(b)).
56 Id.
57 28 U.S.C. § 1367(a).
58 Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639–40 (2009).
59 Id.
after dismissing every claim over which it had original jurisdiction is purely discretionary.”60 The
“general rule” in the Fifth Circuit is to decline to exercise jurisdiction over supplemental state
law claims when all federal claims are dismissed or otherwise eliminated from a case prior to
trial, though “this rule is neither mandatory nor absolute.”61 28 U.S.C. § 1367(c) enumerates the

circumstances in which district courts may refuse to exercise supplemental jurisdiction:
The district courts may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if –
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.62

The Court’s determination of whether to retain supplemental jurisdiction is guided by
“both the statutory provisions of 28 U.S.C. § 1367(c) and the balance of the relevant factors of
judicial economy, convenience, fairness, and comity.”63 The Fifth Circuit instructs that “no single
factor” in the supplemental jurisdiction analysis is dispositive, and courts are to look to all of the
factors under “the specific circumstances of a given case.”64

60 Id. at 639 (“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district
court has dismissed all claims over which it has original jurisdiction.”).
61 Batiste v. Island Records Inc., 179 F.3d 217, 227 (5th Cir. 1999) (citations omitted).
62 28 U.S.C. § 1367.
63 Batiste, 179 F.3d at 227; Parker & Parsley Petroleum Co. v. Dresser Ind., 972 F.2d 580, 585 (5th Cir. 1992).
64 Parker, 972 F.2d at 587.
IV. Analysis
Although Plaintiff’s pro se complaint does not clearly articulate each cause of action that
she intends to bring against Cloos, the Court must liberally construe the complaint and address

any federal or state cause of action potentially raised. Cloos, in his motion to dismiss, identifies
two potential causes of action in the complaint: (1) federal claims for violations of Plaintiff’s
“constitutional rights” and (2) fraud claims.65 Construing the complaint liberally, it does appear
Plaintiff alleges that her federal constitutional rights were violated and that Cloos committed
fraud.
A. Whether Plaintiff has Stated a Constitutional Claim under Rule 12(b)(6)
Cloos argues that a federal constitutional claim cannot be maintained against him because
Plaintiff cannot bring a constitutional claim against a private citizen.66 Plaintiff does not respond
to this argument or identify any statute under which Cloos could be held liable for violating her
constitutional rights.

42 U.S.C. § 1983 establishes a cause of action against anyone who “under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” A
person acts under color of state law when misusing “power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.”67 “Private
individuals generally are not considered to act under color of law, but private action may be

65 Id.
66 Id. at 4.
67 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941) (internal
quotation marks omitted).
deemed state action when the defendant’s conduct is fairly attributable to the State.”68
Here, Plaintiff alleges Cloos, as her legal counsel for a worker’s compensation claim, did
not provide diligent representation and did not protect her interests.69 As a result, Plaintiff alleges
Cloos “violated in all ways [her] Constitutional Rights.”70 It is clear from the allegations in the

complaint that Cloos is a private individual, and Plaintiff does not allege any conduct by Cloos
that could be fairly attributable to the State.71 Accordingly, although it is not clear from the
complaint whether she intended to bring a Section 1983 claim against Cloos, even construing her
complaint liberally, any such claim would fail as a matter of law and therefore is hereby dismissed
under Rule 12(b)(6).
B. Whether Plaintiff has Stated a Federal Fraud Claim under Rule 9(b)

The Court has dismissed all of Plaintiff’s federal constitutional claims in this litigation.
Yet, construing the complaint liberally, Plaintiff also appears to assert “fraud” claims against
Cloos.72 Plaintiff alleges that Cloos provided her with a check and told her “to wait two or three
weeks to deposit [it] because he didn’t have funds in his account.”73 Plaintiff further alleges Cloos
stated that “he was under investigation for some issues.”74 In the instant motion, Cloos argues
that Plaintiff does not satisfy Federal Rule of Civil Procedure 9(b)’s heightened pleading
requirement for fraud claims.

68 Moody v. Farrell, 868 F.3d 348, 352 (5th Cir. 2017) (internal citations and quotation marks omitted).
69 Rec. Doc. 3-1 at 3.
70 Id.
71 Rec. Doc. 3-1.
72 Id.
73 Id. at 6.
74 Id.
Here, because Plaintiff does not specify whether her fraud claim is a state or federal cause
of action, the Court will first conduct a Rule 9(b) analysis for any potential federal fraud claim
against Cloos. With respect to the fraud claim, Plaintiff alleges only that Cloos told her “to wait

two or three weeks to deposit [a check] because he didn’t have funds in his account” and “was
under investigation for some issues.”75 That allegation states “who” committed the fraud by
pointing to Cloos, but the allegation does not state the required “when, where, and how” of the
alleged fraud. Indeed, Plaintiff’s allegation does not provide any specific date or time describing
“when” Cloos committed fraud. Similarly, Plaintiff does not allege “where” any fraudulent
actions were conducted by Cloos. Plaintiff also does not allege “how” Cloos defrauded Plaintiff.
Thus, by not alleging the “when, where, and how” of the alleged fraud, Plaintiff does not allege
the factual details necessary to plead fraud with “particularity” under Rule 9(b).
Accordingly, even construing the complaint liberally, Plaintiff does not state any federal
fraud claim with the required “particularity” under Rule 9(b). Thus, any potential federal fraud

claim is hereby dismissed. The Court has now dismissed all of Plaintiff’s federal claims in this
litigation, including any federal constitutional claim and any federal fraud claim.
C. Whether this Court should Exercise Supplemental Jurisdiction over Plaintiff’s Fraud
Claims under State Law

Construing the complaint liberally, Plaintiff appears to also assert state law fraud claims
against Cloos under Louisiana law.76 In the instant motion, Cloos argues that Plaintiff “may not
bring a suit grounded in State law under the principle of diversity” because Cloos and Plaintiff

75 Id.
76 Rec. Doc. 3-1 at 6. Plaintiff may also be asserting a negligence claim against Defendant Gwendolyn Thompson.
Id.
are both indisputably Louisiana residents.77 Yet, if a court has original jurisdiction over a federal
claim pursuant to 28 U.S.C. § 1331, the court also has supplemental jurisdiction over related state
law claims when the state law claims are “so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy under Article III of the United
States Constitution.”78 Accordingly, the Court will address whether it is appropriate to exercise
supplemental jurisdiction over any remaining state law claims.
“As a general rule, a federal court should decline to exercise jurisdiction over pendent
state claims when all federal claims are disposed of prior to trial.”79 A court’s decision whether
to exercise supplemental jurisdiction after dismissing every claim over which it had original
jurisdiction is purely discretionary.80 The Fifth Circuit has emphasized that “in the usual case in
which all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—
will point toward declining to exercise jurisdiction over the remaining state-law claims.”81

Here, the balance of factors weighs in favor of the Court not exercising supplemental
jurisdiction. First, judicial economy concerns weigh in favor of not exercising jurisdiction
because the parties are still at the pleading stage in this litigation.82 Second, the convenience factor

77 Rec. Doc. 30-1 at 4.
78 28 U.S.C. § 1367(a).
79 Brim v. ExxonMobil Pipeline Co., 213 F. App’x 303, 305 (5th Cir. 2007) (citing Carnegie–Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988)). See also Parker, 972 F.2d at 585 (“Our general rule is to dismiss state claims when the
federal claims to which they are pendent are dismissed”) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.
1989)).
80 Carlsbad Tech, 556 U.S. at 639.
81 Parker, 972 F.2d at 586–87 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)) (internal quotations
and citations omitted).
82 See id. (noting that judicial economy would have been better served by dismissal from federal court where
weighs in favor of not exercising jurisdiction because the parties need not perform any redundant
or burdensome work to litigate in state court.83 Third, federalism and comity concerns weigh in
favor of declining to exercise jurisdiction because all of Plaintiff’s remaining claims against Cloos

must be decided under state law. Federal courts are courts of limited jurisdiction, and state courts
often have superior familiarity with their jurisdictions’ law.84
Finally, the fairness factor weighs in favor of not exercising jurisdiction because neither
party would have to repeat the discovery process.85 Accordingly, the Court declines to exercise
supplemental jurisdiction over any remaining state law claims.
V. Conclusion
For the foregoing reasons, the Court finds that Plaintiff has failed to state any federal claim
against Cloos. The Court also declines to exercise supplemental jurisdiction over any remaining
state law claims that Plaintiff appears to allege.86
Accordingly,

discovery had not been completed and the litigation was at a relatively early stage).
83 See id. at 587–88 (finding no undue inconvenience to the parties where little new legal research would be necessary
as a result of dismissal and where remaining claims would be governed by state law in either federal or state forum).
84 Id. at 589 (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 122 n.32 (1984)).
85 Id. at 588.
86 To the extent Plaintiff alleges any state law claims against Defendants Gwendlyn Thompson and Sheral Kellar,
the Court also declines to exercise supplemental jurisdiction over those state law claims.
IT IS HEREBY ORDERED that Defendant Edward J. Cloos’s Motion to Dismiss*’ is
GRANTED IN PART to the extent it seeks dismissal of Plaintiffs federal claims and any such
claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Court declines to exercise supplemental
jurisdiction over any remaining state law claims and any such claims are DISMISSED
WITHOUT PREJUDICE.
NEW ORLEANS, LOUISIANA, this _4th_ day of November, 2019.

NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

87 Rec. Doc. 30.
15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184985. Public record. Not legal advice.