# Pullins v. Hancock Whitney Bank

> District Court, M.D. Louisiana · January 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10191676

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** January 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10191676

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.
64680  1
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.
64680  4
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).
64680  6
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)).
64680  7
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.
64680  8
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.
64680  9
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.
64680  10
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.
64680  12
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.
64680  13
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.
64680  14
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.

64680  15
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.
64680  21
“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.
64680  22
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.
64680  25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191676. Public record. Not legal advice.