Pullins v. Hancock Whitney Bank

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

NEKEIA PULLINS CIVIL NO. 19-00006

V. JUDGE SHELLY D. DICK

HANCOCK WHITNEY BANK MAG. JUDGE ERIN WILDER-

DOOMES

RULING

This matter is before the Court on the second Motion to Dismiss1 by Defendant,

Hancock Whitney Bank (“Defendant”). Plaintiff, Nekeia Pullins (“Plaintiff”), has filed an

Opposition,2 to which Defendant filed a Reply.3 For the following reasons, the Court finds

that Defendant’s motion should be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND4

Plaintiff, an African-American female, filed her original Complaint against

Defendant on January 4, 2019, alleging that Defendant discriminated against her on the

basis of her race by requiring her to wait one business day after depositing funds before

allowing her to withdraw those funds. Plaintiff’s original Complaint further alleged that

Defendant’s conduct violated the: (1) Equal Credit Opportunity Act (“ECOA”) (15 U.S.C.

§ 1691); (2) discrimination in public accommodation (42 U.S.C. §2000a); (3)

discrimination in contract performance/enforcement (42 U.S.C. § 1981); (4) Louisiana

1 Rec. Doc. No. 22.

2 Rec. Doc. No. 29.

3 Rec. Doc. No. 32.

4 The Court adopts by reference the detailed factual background set forth in the Court’s previous Ruling,

Rec. Doc. No. 16.

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ECOA statute (La. R.S. 51:2255); (5) Louisiana—discrimination in public accommodation

(La. R.S. 46:146 ); and (6) La. C. C. art. 2315.

Defendant moved to dismiss the original Complaint pursuant to Rule 12(b)(6) for

failure to state a claim upon which relief may be granted, and on March 25, 2020, the

Court dismissed all of Plaintiff’s claims with prejudice except those brought under 42

U.S.C. § 1981 and La. C.C. art. 2315. These claims were dismissed without prejudice,

and Plaintiff was granted leave to amend.5

Plaintiff subsequently filed an Amended Complaint alleging many of the same facts

as in the original Complaint to support her claims under 42 U.S.C. § 1981 and intentional

infliction of emotional distress (“IIED”) under La. C.C. art. 2315.6 Plaintiff alleges that, on

or about January 4, 2018, she entered the Hancock Whitney branch at 17257 Airline

Highway in Prairieville, Louisiana, to reopen a checking account and deposit a lawsuit

settlement check in the amount of $8,456.16.7 Plaintiff alleges that later that same day,

at about 4:00 pm, she entered a different Hancock Whitney branch on Bluebonnet Blvd

in Baton Rouge, Louisiana, attempted to withdraw all of the money deposited earlier that

day at the Prairieville branch, and asked to close the newly opened account.8

Plaintiff further alleges that, upon her request to withdraw the funds deposited

earlier that day, the assistant manager of the Bluebonnet branch (“Tina”), made a phone

call and then advised Plaintiff that she contacted the Prairieville branch where the account

was opened earlier that day, and because the deposit was not a cash deposit, Plaintiff

5 Rec. Doc. No. 16.

6 Rec. Doc. No. 21.

7 Id. at ¶ 1.

8 Id. at ¶¶ 5-6.

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could not withdraw all of the money from the account that day.9 Plaintiff asserts that, after

being questioned, Tina went to meet with the Bluebonnet branch manager, Nicole Perret

(“Perret”), and Tina returned with Perret to advise Plaintiff that she spoke with Kerry

Coughlin, the Prairieville branch manager (“Coughlin”), and that, according to Perret,

Coughlin stated that he spoke with the attorney who issued the settlement check, and

that the attorney (allegedly described as a “he”) was unable to verify that “he” issued

Plaintiff the check and that “he” had to look at his ledger.10 Plaintiff claims Perret advised

that Coughlin said a hold was put on the account “until the attorney verified and confirmed

this.”11 Plaintiff claims this could not be true because the attorney was not only female but

also Plaintiff’s sister.12

Plaintiff further claims she was embarrassed because the other people in the

branch heard this conversation and Perret “insinuated” Plaintiff was attempting to defraud

the bank.13 Plaintiff alleges she “felt humiliated and embarrassed as a result of being

treated like a criminal” when “a hold was placed on the account until they could verify that

the check was a legitimate check and that Plaintiff was the intended payee.”14 Further,

when Plaintiff accused Perret of being dishonest, Perret allegedly “began yelling at

[Plaintiff] and telling her that she could get out if she was not going to let her help.”15

Plaintiff further alleges Perret invited Plaintiff into her office, and Tina “approached

Perret’s office door and asked if Perret needed her to call the police,” but “Perret waived

9 Id. at ¶¶ 7-8.

10 Id. at ¶ 9.

11 Id.

12 Id.

13 Id.

14 Id.

15 Id. at ¶ 11.

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[Tina] away and told her to wait.”16

Plaintiff alleges that, at around 6 pm that evening, while Plaintiff was still in Perret’s

office, Plaintiff’s attorney called Plaintiff, who put the attorney on speakerphone at Perret’s

request. Perret allegedly advised Plaintiff’s attorney that Perret had been trying to contact

the attorney, and Plaintiff’s attorney advised that she was on her way to the Bluebonnet

branch.17 Following this call, Perret allegedly tried to call Coughlin in the Prairieville

branch to have him release the hold placed on the funds, but Coughlin had left for the

day; however, Perret allegedly advised Plaintiff that she would make sure the hold was

released and the funds available by 8:30 am the following morning.18 Plaintiff alleges that

Perret ultimately told Plaintiff that Perret was “extremely disappointed” at how Coughlin

handled the situation, and that Perret believed Plaintiff had been subjected to

discrimination.19 Plaintiff argues these allegations support her 42 U.S.C. § 1981 and La.

C.C. art. 2315 intentional infliction of emotional distress claims.

II. PARTIES’ ARGUMENTS, GENERALLY

Defendant again moves to dismiss these claims under Rule 12(b)(6) for failure to

state a claim upon which relief may be granted. Defendant contends the Deposit

Agreement between it and Plaintiff, the Expedited Funds Availability Act (the “Funds Act”)

(12 U.S.C. §§4001-10), and Regulation CC (12 C.F.R. §201, et seq.) all expressly permit

Defendant to require Plaintiff to wait one business day before being allowed to withdraw

a deposit. Because Plaintiff alleges that Defendant waited one day to allow Plaintiff to

withdraw the deposit from the newly opened account, which the contract and the

16 Id.

17 Id. at ¶ 12.

18 Id. at ¶¶ 13-14.

19 Id. at ¶¶ 16-17.

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regulations set forth expressly require, Plaintiff has failed to allege any breach of contract

or discrimination in executing the Deposit Agreement. Rather, “Plaintiff merely alleges

that HW complied with the Deposit Agreement and the applicable banking regulations.”20

Citing applicable jurisprudence, Defendant argues that “Plaintiff’s subjective belief of

discrimination ‘is insufficient to create an inference of the defendant[’s] discriminatory

intent.’”21 Thus, Plaintiff’s 42 U.S.C. §1981 should be dismissed with prejudice.

As to Plaintiff’s claim of intentional infliction of emotional distress, Defendant avers

that Plaintiff’s allegations also fail to support this claim. Defendant maintains Plaintiff

failed to allege that its conduct in complying with the Deposit Agreement and banking

regulations was extreme and outrageous conduct; that Plaintiff suffered emotional

distress because Defendant adhered to the Deposit Agreement and banking regulations;

or that Defendant desired to inflict severe emotional distress or knew that severe

emotional distress was substantially certain to result from adherence to the Deposit

Agreement and banking regulations.

Plaintiff opposes this motion, arguing that she has adequately alleged facts to

support these claims. Plaintiff states:

Pursuant to § 1981, Plaintiff argues that HW exercised “intentional racial

discrimination by denying the Plaintiff full and equal benefit in regards to the

performance of its contract with the Plaintiff.” Plaintiff further argues that

HW’s racially discriminatory conduct “caused Plaintiff to suffer mental and

emotional distress, entitling her to compensatory damages pursuant to La.

C.C. art 2315.”22

Plaintiff recounts the facts set forth above and highlights the allegation that Perret agreed

with Plaintiff that she had been discriminated against and advised Plaintiff that she should

20 Rec. Doc. No. 22-1, p. 2.

21 Id. (quoting Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004) (internal citations omitted)).

22 Rec. Doc. No. 29, p. 2 (quoting Rec. Doc. No. 21, ¶ 2).

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file a complaint with the bank.23 Plaintiff maintains the allegations set forth in her

Amended Complaint survive Defendant’s motion.

Defendant replies to Plaintiff’s arguments, stating that she has offered merely

conclusory allegations that fail to support her claims, and Plaintiff’s allegations confirm

that Defendant acted in accordance with the Deposit Agreement. Additionally, Defendant

notes that the Court must only consider the allegations in Plaintiff’s Amended Complaint

and not additional allegations raised for the first time in her Opposition. The Court agrees.

“[I]t is axiomatic that a complaint cannot be amended by briefs in opposition to a motion

to dismiss.”24 Any factual allegations asserted in Plaintiff’s Opposition that do not appear

implicitly or explicitly in her Amended Complaint shall not be considered for purposes of

this Ruling.

III. LAW AND ANALYSIS

A. Motion to Dismiss under Rule 12(b)(6)

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”25 The

Court may consider “the complaint, its proper attachments, documents incorporated into

the complaint by reference, and matters of which a court may take judicial notice.”26 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

23 Id. at pp. 2-5 (citing Rec. Doc. No. 21, pp. 8-9).

24 Becnel v. St. Charles Par. Sheriff's Office, No. 15-1011, 2015 WL 5665060, at *1 n.3 (E.D. La. Sept. 24,

2015) (quoting In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011)

(collecting cases)). Because a Rule 12(b)(6) motion tasks the Court with “assess[ing] the legal sufficiency

of the complaint,” a court should not consider allegations that appear for the first time in plaintiffs' briefing.

Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir.

2012).

25 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

26 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

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a claim to relief that is plausible on its face.’”27 In Twombly, the United States Supreme

Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)

motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.”28 A complaint is also insufficient if it

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”29 However,

“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”30 In order to satisfy the plausibility standard, the plaintiff must show “more than

a sheer possibility that the defendant has acted unlawfully.”31 “Furthermore, while the

court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable

to the plaintiff.’”32 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”33

B. The Deposit Agreement and Banking Regulations

As an initial matter, Defendant contends it complied with the Deposit Agreement

and appliable banking regulations; thus, Plaintiff has failed to establish a predicate for any

of her claims. Defendant argues that, since Plaintiff alleges that the funds were made

27 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin, 369 F.3d at 467).

28 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets

omitted)(hereinafter Twombly).

29 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations

omitted)(hereinafter “Iqbal”).

30 Twombly, 550 U.S. at 570.

31 Iqbal, 556 U.S. at 678.

32 Taha v. William Marsh Rice University, 2012 WL 1576099, at *2 (quoting Southland Sec. Corp. v. Inspire

Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

33 Twombly, 550 U.S. at 556 (quoting Papassan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d

209 (1986)).

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available to her on the next business day after the deposit, “she merely alleges that HW

complied with the agreement between the parties and applicable federal banking

regulations. Having failed to allege that HW did anything wrong, Plaintiff has failed to

allege any predicate underlying any cognizable claim against HW.”34

The Deposit Agreement is the governing contract between the parties. In this

agreement, the Parties agreed that Defendant’s “policy is to make funds from your

deposits available to you on the first business day after the day we receive your deposit .

. . Once the funds are available, you can withdraw them in cash. . . [.]”35 The Agreement

further provides: “For determining the availability of your deposits, every day is a business

day, except Saturdays, Sundays, and federal holidays. If you make a deposit before our

designated business day cut-off hour on a business day that we are open, we will consider

that the day of your deposit . . . Our business day cut-off hour may vary by branch location,

but it will never be earlier than 2:00 P.M. CST.”36

Defendant notes that these terms mirror federal banking regulations set forth in the

Funds Act and Regulation CC. Specifically, Section 229.10(c)(1)(vi) of Regulation CC

provides: (1) General Rule. A depositary bank shall make funds deposited in an account

by check available for withdrawal not later than one business day after the banking day

on which the funds are deposited, in the case of—(vi) A check deposited in a branch of

34 Rec. Doc. No. 22-1, p. 7.

35 Rec. Doc. No. 22-2, p. 25. In general, the Court may only consider the pleadings and any attachments

to the pleadings. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). However, courts

may consider documents attached to a motion to dismiss if they are referred to in the complaint and are

central to a plaintiff's claim because the documents merely assist the plaintiff in establishing the basis of

the suit and the court in making the basic determination if plaintiff has stated a claim. Id. at 498–99.

Although the Plaintiff did not explicitly name the Deposit Agreement in her Amended Complaint, she refers

to the contract between she and the Defendant numerous times, and the Deposit Agreement is the

governing contract between the Parties in this matter.

36 Id.

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the depositary bank and drawn on the same or another branch of the same bank if both

branches are located in the same state or the same check processing region.” Thus,

Plaintiff’s own allegations confirm that Defendant complied with the Deposit Agreement,

the Funds Act, and Regulation CC in providing her funds the following business day after

the deposit.37 Defendant posits: “[S]ince … Plaintiff has failed to allege HW did anything

wrong, the predicate for all of Plaintiff’s claims is premised on lawful activity, and Plaintiff

has failed to state a claim on any count.”38

Plaintiff acknowledges that the Deposit Agreement and bank regulations provide

for this delay in providing funds. However, Plaintiff argues that the “true nature” of the

hold was not pursuant to the Deposit Agreement or banking regulations but “because she

was an African American woman attempting to withdrawal cash from a large settlement

check and this appeared suspicious to the Defendant.”39 In other words, Defendant’s

conduct in enforcing the terms of the Deposit Agreement was not motivated by the legal

reason to delay; rather, they delayed based on an illegal motivation – her race.

The Court agrees with Defendant. The reasoning and analysis of the United States

District Court for the Northern District of Georgia in Benton v. Cousins Properties, Inc.40

is persuasive in this case. In Benton, the plaintiff asserted a claim under Section 1981

alleging race discrimination in the formation and performance of contracts regarding

rental of a conference room from hotel for a holiday bazaar. The plaintiff claimed that the

37 Alternatively, Defendant provides justification for the waiting period under two other regulations; however,

based on the Court’s findings, the Court need not address these alternative arguments.

38 Rec. Doc. No. 22-1, p. 10.

39 Rec. Doc. No. 29, p. 7.

40 230 F.Supp.2d 1351 (N.D. Ga. 2002)(aff’d 97 Fed. Appx. 904 (11th Cir. 2004). Although Benton was

determined at the summary judgment stage, the Section 1981substantive legal principles applied therein

also apply to the fact of this case.

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hotel “deprived her of the enjoyment of all the benefits, privileges, terms, and conditions

of the contractual relationship that she had with Marriott when she arranged to rent a

conference room from Marriott for the holiday bazaar.”41

The gravamen of plaintiff's claim is that, although Marriott honored the literal

terms of its written agreement with plaintiff, in that it did provide a

conference room for her to use for the holiday bazaar, the Marriott and

Cousins defendants acted together to deprive the plaintiff of the customary

benefits and privileges that were typically provided to white persons who

rented conference rooms at the Plaza and that these defendants did so

because plaintiff is black. Specifically, plaintiff complains that she was

denied the use of the loading dock and elevators, that she was denied use

of telephones in the conference room, and that defendants were unduly

restrictive in allowing her to distribute flyers promoting her event. Plaintiff's

overriding complaint is that the defendants were rude to her and, more

particularly, that defendant Marriott repeatedly hassled her in an effort to

get her to pay for the additional janitorial and security services that would

be required as a result of the size of plaintiff's planned event.42

The Benton court, citing United States Supreme Court precedent, noted that “a

Section 1981 claim requires a showing both of an actus rea—that is, a failure to perform

a contractual obligation—and a mens rea—non-performance as a result of an intention

to discriminate racially.43 In other words, the court explained that “the plaintiff must show

that the defendants actually did something wrong before she can call on a court to gauge

whether there was any racial motivation behind their actions.”44 The court ultimately

concluded that that hotel did not violate any of its contractual obligations; thus, it did not

deny the plaintiff any benefits of her contract: “plaintiff’s claim fails, independent of any

exploration of the subjective racial views of Marriott personnel.”45

41 Id. at 1368.

42 Id. at 1368-69.

43 Id. at 1369 (citing General Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct.

3141, 73 L.Ed.2d 835 (1982) (Section 1981 “can be violated only by purposeful discrimination”)).

44 Id. at 1371.

45 Id. at 1373.

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For the reasons set forth above, the same outcome is warranted here. According

to Plaintiff’s own allegations, Defendant complied with the terms of the Deposit

Agreement, and she received access to her funds within the timeline provided for therein.

Therefore, Plaintiff’s Section 1981 claim fails, “independent of any exploration of the

subjective racial views” of Defendant’s employees. Alternatively, the Court also finds

Plaintiff’s Amended Complaint is subject to dismissal for the reasons set forth below.

C. Claims under 42 U.S.C. § 1981

Pursuant to 42 U.S.C. § 1981, all persons within the jurisdiction of the United

States have the same rights, regardless of race, to enter into and enforce contracts,

including the “making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.”46 “[A] plaintiff bears the burden of persuading the court that [he/she] has

established a prima facie showing of race discrimination.”47 To establish a prima facie

case under § 1981, a plaintiff must show that “(1) he or she is a member of a racial

minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the

discrimination concerned one or more of the activities enumerated in the statute.”48 A

plaintiff may rely on circumstantial evidence to establish that the defendant had a

discriminatory motive.49 Plaintiff clearly satisfies the first prong of the analysis, so the

Court will move to the remaining prongs.

46 42 U.S.C. § 1981(a)-(b).

47 Monteverde v. New Orleans Fire Dept., 124 Fed. Appx. 900 (5th Cir. 2005) (citing Rubinstein v. Adm'rs

of Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000)).

48 Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.1997).

49 Id.

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1. Intent to Discriminate Based on Race

In her Amended Complaint, Plaintiff alleges that Defendant “engaged in intentional

racial discrimination by denying the Plaintiff full and equal benefit in regards to the

performance of its contract with the Plaintiff” in violation of 42 U.S.C. § 1981.50

Specifically, Plaintiff alleges the following as to Defendant’s racially discriminatory intent:

The Defendant’s actions were clearly motivated by discriminatory intent, as

indicative of the Defendant using the above-referenced false and

misleading statements under the premise that the Plaintiff was attempting

to defraud the bank, instead of identifying legitimate and permissible

banking safeguards as the reason, in order to cover up its true non-

permissible discriminatory motives, resulting in the denying of the Plaintiff’s

access to the funds in Plaintiff’s account simply because she was African

American. Specifically, Plaintiff was the only African American customer in

the bank who was singled out and whose transaction appeared suspicious

and in need of investigation. Moreover, Defendant felt the need to discuss

its issue with Plaintiff's transaction in front of everyone in the bank without

discretion. Defendant yelled at Plaintiff and told Plaintiff that she could "get

out" if she did not want to receive help, while disregarding Plaintiff's

legitimate concerns as to the illegally prompted investigation of Plaintiff's

account and while Plaintiff remained in front of everyone else in the bank,

including other customers. Plaintiff alleges that the actions of the Defendant

in providing her false assertions as to why she could not receive the funds

from her account, is indicative of the Defendant’s deceitful and

discriminatory intent[.]51

Defendant argues that Plaintiff has alleged only her subjective belief that the

conduct of its employees was motivated by race discrimination in denying her access to

her funds. Defendant maintains these generalized allegations are not specific enough to

plead discriminatory intent. Defendant points out that Plaintiff does not allege that other

non-minority customers in the bank were allowed to withdraw funds from a new account

on the same day the funds were deposited. Rather, according to Defendant, Plaintiff’s

50 Rec. Doc. No. 21, Count I, p. 11.

51 Id. at pp. 11-12.

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allegations of discriminatory intent are purely speculative, and she acknowledges that

Defendant had the contractual right to delay releasing the funds on the same day the

account was opened.

Plaintiff counters Defendant’s argument, claiming that “[t]he underpinning of [her]

claims is not merely that the Defendant waited until the following day to grant access to

the money in her account”; rather, Plaintiff argues that the alleged conduct of Defendant’s

employees throughout the incident state a claim for race discrimination. Plaintiff avers

that she has alleged that Defendant’s employees were dishonest as to the reason for the

hold and falsely claimed that there were “red flags” that prompted the hold.52 Plaintiff

further contends that, “even if the client agreement establishes a loophole to support the

Defendant illegally placing a hold on the Plaintiff’s account, it was still used as a pretext

for discrimination.”53

Plaintiff cites to Roberson v. Alltell Information Services, a case decided on

summary judgment, and attempts to distinguish the case at bar from Roberson. However,

the Roberson court was addressing the record evidence under a different standard and

is inapposite to the standard applied in this matter. Further, Plaintiff claims that Defendant

“attempts to offer a permissible reason for its decision to arbitrarily and illegally place a

hold on the Plaintiff’s account,” but “this reason is pretext to cover up the Defendant’s true

illegal and discriminatory motives.”54 Plaintiff makes arguments regarding proof;

however, proof is irrelevant on a Rule 12(b)(6) motion. Plaintiff contends that Defendant

never provided Plaintiff with the only permissible reason to deny her funds – the Deposit

52 Id. at p. 21.

53 Rec. Doc. No. 29, p. 12 (emphasis in original).

54 Rec. Doc. No. 29, p. 10.

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Agreement – but only gave her false reasons for the hold. Plaintiff contends that this

alleged fact, coupled with the allegation that no other non-African American customers

were treated in this manner in receiving service from the bank, allows the Court to infer

from the pleadings an allegation of racially discriminatory intent.

Defendant responds that “[s]taring at someone, telling someone they can get out

if they don’t want to receive help, and managers offering conflicting statements regarding

why someone was denied access to her funds do not constitute facts sufficient to show

that HW’s actions were motivated by discriminatory intent.”55 Defendant cites Brooks v.

Pizza Hut, Inc., wherein the district court for the Eastern District of Louisiana held that, to

state a claim for relief under Section 1981, a “plaintiff cannot merely invoke his race in the

course of a claim’s narrative and automatically be entitled to pursue relief.”56

The Court notes the standard to evaluate this claim:

Although “naked allegation[s]” of discriminatory intent are too conclusory to

survive a motion to dismiss, see Albert v. Carovano, 851 F.2d 561, 572 (2d

Cir. 1988) (en banc), discriminatory motive may be—and commonly is—

demonstrated by circumstantial evidence, Bellows, 118 F.3d at 274. An

allegation that similarly situated non-minorities received better treatment

“could create the necessary inference and set the predicate for establishing

the section 1981 claim.” See Crosby v. Kilgore, 9 F.3d 104, 1993 WL

481800, at *1 (5th Cir. 1993) (unpublished); cf. Lindsay v. Yates, 498 F.3d

434, 439–40 (6th Cir. 2007) (holding that plaintiffs-purchasers pleaded a §

1981 claim by alleging that (1) sellers advertised their house for sale; (2)

plaintiffs signed a purchase agreement and made deposit; and (3) sellers

terminated the contract three weeks after signing agreement and one day

after agent learned buyers were black).57

The Court finds that Plaintiff’s allegations of racially discriminatory intent are largely

subjective and insufficient to state a claim. Taking Plaintiff’s allegations as true for

55 Rec. Doc. No. 32, p. 31.

56 1992 WL 245668, * 2 (E.D. La. Sept. 14, 1992)(quoting Bray v. RHT Inc., 748 F.Supp. 3, 5 (D.D.C.1990)).

57 Body by Cook, Incorporated v. State Farm Mutual Automobile Ins., 869 F.3d 381, 387.

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purposes of this motion, the picture painted by Plaintiff demonstrates allegedly rude and

unprofessional behavior on the part of Defendant’s employees. Plaintiff bemoans the fact

that Defendant has not offered an explanation for the “inconsistences with regard to the

aforementioned false reason provided to Plaintiff”; however, at the Rule 12(b)(6) stage,

Defendant does not have this burden. It has challenged the sufficiency of the allegations

in Plaintiff’s Amended Complaint, and the Court must only look to those allegations to

resolve this motion.

Further, the Court is unpersuaded that Plaintiff’s allegation that the non-minority

customers at the bank that day were not denied bank services or treated in the same

manner as she is indicative of discriminatory intent. While it is true that “[a]n allegation

that similarly situated non-minorities received better treatment ‘could create the

necessary inference and set the predicate for establishing the section 1981 claim,’”

Plaintiff has not alleged that the non-minorities were similarly situated. Simply being in

the bank as a customer and not having an altercation with bank employees does not

properly allege that these non-minorities were similarly situated. Rather, an allegation

that non-minority customers sought the same services – being provided new account

funds prior to the requisite 24-hour delay – and received different treatment/results would

allow an inference of race discrimination. Plaintiff makes no allegations regarding the

nature of the services sought by the allegedly similarly situated non-minority customers;

thus, there are no factual allegations to support Plaintiff’s claim that her race motivated

the alleged interference with her contractual rights.

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Borrowing from Title VII jurisprudence,58 to show that a similarly situated non-

minority was treated differently and that the difference in treatment is a pretext for

discrimination, the conduct at issue must be “nearly identical.”59 Courts within the Fifth

Circuit define “similarly situated” narrowly.60 As discussed above, Plaintiff has not alleged

facts that non-minority bank customers were treated more favorably in “nearly identical”

circumstances.

Plaintiff relies on a 2003 decision by the federal district court in Oregon in Allen v.

U.S. Bancorp, wherein an African American bank customer sued his bank under Section

1981, alleging that he was subjected to race discrimination when trying to make a

business deposit.61 Specifically, the plaintiff alleged that a teller stared at him suspiciously

when he entered the bank; that a bank supervisor required him to remove his sunglasses

while in the bank when a white customer was in the bank conducting business while

wearing sunglasses; and when he reached the front of the business line, he was told he

needed to move to the back of the line for personal transactions.62 Finding that the plaintiff

had sufficiently alleged facts supporting an inference of racial discrimination, the court

stated: “Defendant's contractual obligations to plaintiff are not satisfied merely because

plaintiff was ultimately able to deposit his check. Plaintiff's contractual expectation

included the right to receive service on the same time line as other customers.”63

58 The elements of a racial discrimination claim are the same, whether the claim is asserted under Section

1981 or Title VII. Franklin v. City of Slidell, 936 F.Supp.2d 691, 705 (E.D. La. 2013)(citing Riley v. School

Bd. Union Parish, 379 Fed.Appx. 335, 339 (citing Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316

(5th Cir.2004)); Lockett v. Wal–Mart Stores, Inc., 337 F.Supp.2d 887, 891 (5th Cir.2004)).

59 Moore v. Angus Chemical Co., 2008 WL 4491592 at *5 (W.D. La. Oct. 1, 2008)(citations omitted).

60 See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544-SDD-EWD, 2018 WL 1997535 at *5 (M.D.

La Apr. 27, 2018)(citing Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F.Supp.2d 581, 593 (S.D.

Tex. 2012); see also Lopez v. Kempthorne, 684 F. Supp. 2d 827, 856-57 (S.D. Tex. 2010)).

61 Allen v. U.S. Bancorp, 264 F. Supp.2d 945, 947-48. (D. Oregon 2003).

62 Id.

63 Id. at 950.

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Plaintiff claims that, as in Allen, she also had an expectation to “receive service on

the same time line as other customers.” Plaintiff maintains that it is not enough that she

eventually received her funds because the “additional restrictions” imposed on her,

because of her race, in order to receive service, violated Section 1981. However,

Plaintiff’s allegations are easily distinguished from those in Allen. The plaintiff in Allen

was similarly situated to the other bank customers in the business and personal

transaction lines, both in the nature of the business sought to be conducted with the bank

and the fact that some were wearing sunglasses. As discussed above, Plaintiff’s

allegations do not allow an inference that she was similarly situated to all other customers

in the bank. Plaintiff would be similarly situated if she alleged that a non-minority

customer was at the bank to conduct the same business as Plaintiff, pursuant to the same

terms of a Deposit Agreement, but was allowed to access funds on the same day as the

opening of an account and deposit of a check in an amount over $5,000.00. No such

allegation has been made. Although Plaintiff claims she was subjected to the additional

restriction of having to remain in the bank for several hours to receive the same services

as other customers who were not delayed, there are no facts alleged in the Amended

Complaint to support a claim that all other bank customers sought the “same services” as

she.

Plaintiff likens the facts of this case to those in Craig v. US Bancorp,64 a case also

decided by the Oregon federal district court, calling the facts “identical” to those asserted

in the present case.65 However, the facts alleged in Craig are also easily distinguished

64 2004 WL 817149 (D. Oregon, Apr. 14, 2004).

65 Rec. Doc. No. 29, p. 13.

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from those alleged by Plaintiff herein. In Craig, the African American plaintiff attempted

to cash a $50 check drawn on his attorney’s bank account. The bank allegedly refused

to cash the check, even though the plaintiff submitted proper identification, and began a

“fraud” investigation, purportedly calling the plaintiff’s attorney to confirm that the check

should be cashed. The plaintiff alleged that his attorney did not recall any phone call of

this nature, and the phone records did not demonstrate that this call was made;

nevertheless, after an hour of waiting, the bank ultimately denied service by refusing to

cash the check. The plaintiff’s attorney called the bank and straightened out the situation,

and the plaintiff returned to the bank, which then cashed the check. Following this

incident, the plaintiff’s attorney sent two white clients to the same bank to cash checks

from the same account; “[b]oth clients were able to cash the checks without incident,

delay, or any mention of a ‘fraud’ investigation.”66

The court rejected the bank’s argument that there was no contractual relationship

between the parties, finding that “a broad interpretation of the Civil Rights Act is consistent

with both its plain language and its goal of racial equality in the marketplace.”67 The court

acknowledged that “other courts have dismissed section 1981 claims where defendants'

behavior perhaps degrades but does not completely deny service.”68 However, the court

noted that “an exception to the general ‘rule’ regarding substandard service exists if and

66 Id. at * 1.

67 Id. at *5 (citations omitted).

68 Id. at *3 (citing e.g., Morris, 89 F.3d at 413 (upholding summary judgment for defendant because plaintiffs

“were denied neither admittance nor service, nor were they asked to leave”); Jeffrey v. Home Depot U.S.A.,

Inc., 90 F.Supp.2d 1066 (S.D.Cal.2000) (granting summary judgment in favor of defendant even though

purchase at check-out counter was delayed by request to search bag); Harrison v. Denny's Restaurant,

Inc., 1997 U.S. Dist. LEXIS 5637, 1997 WL 227963 (N.D.Cal.1997) (granting summary judgment in favor

of defendant because plaintiff eventually received his food albeit slower than non-minority customers)).

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when additional conditions are imposed on the terms or benefits of contract formation.”69

In denying the bank’s motion to dismiss the Section 1981 claim, the court noted that, “[t]o

support his claim, Craig relates facts showing differential treatment, including first a denial

and then a long delay in services, as compared to similarly situated Caucasian

clients.”70

Notwithstanding the fact that decisions from the Oregon federal district court are

not binding upon this Court, the Craig case again highlights Plaintiff’s failure to plead facts

that she received differential treatment based on her race than similarly situated non-

minority bank customers. First, the Craig case did not involve allegations that the plaintiff

attempted to receive a service to which he was not entitled pursuant to the clear terms of

an established governing contract. Second, and importantly, the plaintiff in Craig alleged

facts demonstrating that similarly situated white customers, who sought the exact same

service as Craig in the exact same manner, were treated differently. As set forth at length

above, Plaintiff has alleged no facts that a white bank customer attempted to and

ultimately gained access to funds under the same Deposit Agreement terms as Plaintiff.

More applicable to this case is the Fifth Circuit’s Body by Cook decision – which is

binding on this Court - relied upon by Defendant. In Body by Cook, an automotive repair

shop and its owner brought suit alleging that insurance companies refused to allow the

shop to participate in their direct repair programs because of owner's race, in violation of

69 Id. (citing e.g., Joseph v. New York Yankees P'shp, 2000 WL 1559019, 2000 U.S. Dist Lexis 15417

(S.D.N.Y.2000) (plaintiff forced to change clothing before gaining entry to restaurant); Bobbitt v. Rage, Inc.,

19 F.Supp.2d 512 (W.D.N.C.1998) (plaintiffs required to pre-pay for their food); Washington v. Duty Free

Shoppers, Ltd., 710 F.Supp. 1288 (N.D.Cal.1988) (African Americans required to show passport to enter

store whereas white patrons suffered no such restrictions)).

70Id. at * 4 (emphasis added).

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Section 1981.71 The Fifth Circuit upheld the district court’s dismissal as to the majority of

defendants, holding: “Plaintiffs make only generalized allegations regarding Defendants'

alleged disparate treatment of Body by Cook versus non-minority-owned shops. These

allegations are not specific enough to plead discriminatory intent. They fail to identify …

specific instances when Body by Cook was refused a contract but a similarly situated non-

minority owned body shop was given a contract.72 The same is true of Plaintiff herein as

to allegations that that non-minority bank customers were similarly situated. The Court

finds that Plaintiff’s allegations do not state a claim under this prong of the analysis.

Alternatively, if Plaintiff had pled allegations of racially discriminatory intent, Plaintiff’s

allegations would still fail to satisfy the third prong of this analysis, as set forth below.

2. Discrimination Concerned the Making and Enforcing of a Contract

Defendant also challenges Plaintiff’s allegations that purport to satisfy the

requirement that the alleged race discrimination concerned the making and enforcement

of a contract. Defendant quoted the salient allegations relating to this claim:

• “A contract by mandate was created between the Plaintiff and the Defendant

when the Plaintiff opened a banking account with the Defendant and deposited

money.” R. Doc. 21 (Amended Complaint, Count 1, p. 12).

• “[I]mplicit and expressed contractual obligations were created between the

parties.” R. Doc. 21 (Amended Complaint, Count 1, p. 12).

• “Defendant breached the contract when it hindered the performance of its

contractual obligations by prohibiting the Plaintiff from having access to the funds

in her bank account.” R. Doc. 21 (Amended Complaint, Count 1, p. 12).

• “[W]hen the Defendant refused to allow the Plaintiff access to her account, it

modified the terms and conditions of the created contract by mandate between the

parties, whereby the Plaintiff would be entitled to her funds upon demand.” R. Doc.

21 (Amended Complaint, Count 1, p. 12).

71 869 F.3d at 387.

72 Id. (citing Hall v. Cont'l Airlines, Inc., 252 Fed.Appx. 650, 653–54 (5th Cir. 2007) (unpublished)).

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• “Defendant hindered the Plaintiff from enjoying all benefits, privileges and terms

and conditions of the contract by mandate when it placed a hold on the Plaintiffs’

account and prevented the Plaintiff from having access to her funds on demand.”

R. Doc. 21 (Amended Complaint, Count 1, p. 12).

• “As a direct and proximate result of the Defendant’s breach of contract, the

Plaintiff suffered a loss of the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship with the Defendants [sic]. The assertions

by both branch managers, which were both fabricated and capricious, prevented

Pullins from exercising the full extent of her rights granted by the contract;

specifically, being serviced without unnecessary hindrance or delay and access to

the funds available in her account.” R. Doc. 21 (Amended Complaint, ¶ 19.).73

Defendant contends the Deposit Agreement imposes no such obligations as

alleged by Plaintiff above. Rather, the Agreement expressly provides that customers

must wait one business day after making a deposit to access their funds.74 Further, the

Deposit Agreement allows Defendant to delay the funds for a longer period when the

deposited check is over $5,000.75 Defendant contends Plaintiff has failed to allege any

provision in the Deposit Agreement or any other purported contract between the Parties

that would entitled her to access to deposited funds “on demand,” “unhindered, without

delay services,” or the benefit/privilege of never having a hold placed on her account.76

Plaintiff claims that, just like in Allen and Craig, she was subjected to additional

conditions imposed on the terms or benefits of her contract with Defendant because she

had to wait to receive service, and she was treated suspiciously and allegedly endured a

fraud investigation. The Court finds Plaintiff’s argument without merit under the applicable

legal standard.

73 Rec. Doc. No. 22-1, p. 14.

74 Rec. Doc. No. 22-2, p. 25.

75 Id. at pp. 5, 25. Defendant notes that it also had authority under the Deposit Agreement to require Plaintiff

provide it with at least a 7-day notice in writing before making the withdrawal, although it did not do so in

this case.

76 Rec. Doc. No. 22-1, p. 15.

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“A conclusory allegation that the right to make and enforce contracts has been

violated is insufficient. Instead, a plaintiff must (1) ‘identify the content of the contract at

issue,’ (2) identify ‘the particular contractual rights’ that were allegedly modified by the

defendant's actions, and (3) plead facts showing that the defendant's actions were

motivated by discriminatory intent.”77

First, Plaintiff fails to identify the contract at issue, which is the Deposit Agreement.

This failure alone is fatal. Second, Plaintiff fails to identify any particular contractual rights

modified by Defendant’s conduct; indeed, despite alleging that the contract of mandate

entitled her to access her funds “upon demand,” she admits that access to her funds was

provided in accordance with the provisions of the Deposit Agreement. The vague

allegations that a “contract of mandate” was created between Plaintiff and Defendant

when she opened the bank account and deposited funds, entitling her to demand access

to the funds immediately, are belied by the actual contract between the parties – the

Deposit Agreement – and Plaintiff’s acknowledgement that the Deposit Agreement was

a permissible basis to hold her funds: “Plaintiff agrees that the Deposit Agreement, the

Funds Act, and Regulation CC ‘establishes maximum permissible hold periods for checks

and other deposits.’”78 Despite this admission, Plaintiff contradictorily argues throughout

her Opposition that it was impermissible and/or illegal for Defendant to deny access to

her funds within the 24-hour period.79 The Court understands Plaintiff’s argument that

77 Landor v. Society of the Roman Catholic Church of the Diocese of Lafayette, 2014 WL 4639519, * 3

(W.D. La. Sept. 15, 2014)(quoting Vouchides v. Houston Community College System, 2011 WL 4592057,

*8 (S.D. Texas Sept. 30, 2011)(citing Grambling, 286 F .Appx. at 870; cf. Domino's, 546 U.S. at 476 (“Any

claim brought under § 1981, therefore, must initially identify an impaired “contractual relationship, § 1981(b),

under which the plaintiff has rights.”))).

78 Rec. Doc. No. 29, p. 7 (citation omitted).

79 Id. at pp. 10, 12, 17, 18.

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Defendant’s hold on her funds was allegedly motivated by her race rather than adherence

to the Deposit Agreement, but the claim that Defendant had a duty under a contract of

mandate or good faith and fair dealing to disburse her funds within the 24-hour delay

period is simply meritless.

Second, the claim that Defendant modified the conditions of the contract or

imposed additional restrictions not contemplated in the contract is also unsupported by

factual allegations. Plaintiff never mentions or refers to any provisions of the Deposit

Agreement in her Amended Complaint. Moreover, she fails to allege facts that non-

minority bank customers seeking the same service under the same terms were not

subjected to the same delays/holds. Accordingly, Defendant’s Motion to Dismiss

Plaintiff’s 42 U.S.C. 1981 claim shall be dismissed with prejudice.

D. IIED Claim under La. C.C. art. 2315

A district court may decline to exercise supplemental jurisdiction over state law

claims 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) there are other compelling reasons for declining jurisdiction, in

exceptional circumstances.80 These factors must be considered on a case-by-case basis,

and no single factor is dispositive.81 Generally, a district court “should decline to exercise

jurisdiction over remaining state-law claims when all federal-law claims are eliminated

before trial, but this rule is neither mandatory nor absolute.”82 In addition to the factors

80 28 U.S.C. § 1367(c).

81 Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rough Par., 373 F. App'x 438, 442 (5th Cir. 2010).

82 Brookshire Bros. Holding v. Dayco Prod., Inc., 554 F.3d 595, 602 (5th Cir. 2009).

64680  23

set out in § 1367(a), the court should consider judicial economy, convenience, fairness,

and comity, and especially whether the court has invested a significant amount of

resources in the litigation.83 These considerations include whether extensive or

substantive motions have been filed and/or ruled on, whether a scheduling order has

been issued, whether hearings have been held, the relative convenience of the relevant

state and federal courthouses, and whether it will prejudice either party to have the state

law claims heard in state court.84

While this Court has the authority and discretion to hear Plaintiff's IIED claim, the

United States Supreme Court's decision in United Mine Workers of America v. Gibbs,

instructs that “[n]eedless decisions of state law should be avoided both as a matter of

comity and to promote justice between the parties, by procuring for them a surer-footed

reading of applicable law. Certainly, if the federal claims are dismissed before trial, even

though not insubstantial in a jurisdictional sense, the state claims should be dismissed as

well.” 85

The only remaining claim in this case is Plaintiff’s IIED claim under Louisiana law.

The Court has dismissed the remaining federal claim with prejudice. Thus, there is no

independent basis for federal court jurisdiction over the remaining state law claim. This

case is still at the pleading stage and has not advanced to discovery. No scheduling order

has been issued. And while the Court has previously issued a Ruling on the first Motion

to Dismiss, the Court has not invested a significant amount of resources in this litigation.

83 Id.

84 Hicks v. Austin Indep. Sch. Dist., 564 F. App'x 747, 749 (5th Cir. 2014).

85 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); see also W.R. Grace & Co. v. Continental Cas.

Co., 896 F.2d 865, 871 (5th Cir.1990) (“Gibbs teaches that federal courts must refrain from unnecessary

poaching upon a sovereign state's jurisprudential turf.”).

64680  24

Further, considering the docket backlog created in this Court by the COVID-19 pandemic,

the Court finds that the best use of judicial resources for this Court and the state court is

to have the state court preside over a purely state law claim. Accordingly, the Court

declines to exercise supplemental jurisdiction over Plaintiff’s IIED claim, and it shall be

dismissed without prejudice.

III. CONCLUSION

For the reasons set forth above, the Motion to Dismiss86 by Defendant, Hancock

Whitney Bank, is GRANTED. Plaintiff’s 42 U.S.C. § 1981 claim is dismissed with

prejudice. Plaintiff’s IIED claim under La. C.C. art. 2315 is dismissed without prejudice.

This dismissal is STAYED for thirty (30) days from the date of this Ruling in order to

provide Plaintiff's counsel time to file this claim in state court.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana January 11, 2021.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

86 Rec. Doc. No. 22.

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