Turner v. Ascendium Education Group, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TYLER J. TURNER

CIVIL ACTION

v.

NO. 20-660-JWD-EWD

ASCENDIUM EDUCATION

GROUP, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion to Dismiss Plaintiff’s First Amended

Complaint (Doc. 28) filed by Defendants Ascendium Education Group (“Ascendium”) and

Pioneer Credit Recovery, Inc. (“Pioneer”) (collectively “Defendants”). Plaintiff Tyler J. Turner

(“Plaintiff”) opposes the motion. (Doc. 33.) No reply was filed. Oral argument is not necessary.

The Court has carefully considered the law, facts in the record, and arguments and submissions of

the parties and is prepared to rule.

For the following reasons, Defendants’ motion is granted. In sum, Plaintiff’s claims fail on

virtually every level. First, Plaintiff has failed to meaningfully oppose the instant motion, so he

has waived his claims. Second, even if the Court looked past this waiver, the Court would dismiss

Plaintiff’s claims on substantive grounds because (a) Plaintiff failed to satisfy the pleading

requirements of Federal Rule of Civil Procedure 8(a), much less the heightened pleading

requirements for his claims under Rule 9(b), and (b) Plaintiff’s claims are preempted by federal

law. For all these reasons, the Court will dismiss Plaintiff’s claims. Because Plaintiff failed to

cure prior deficiencies with his original complaint, and because any amendment would be futile,

the Court will not allow any further amendment and will dismiss Plaintiff’s claims with prejudice.

I. Background

This suit arises out of what Plaintiff alleges was the “wrongful garnishment” of his wages.

(Doc. 19 at 1.) Plaintiff acknowledges that he obtained a loan to “pursue his educational goals.”

(First Amended Complaint (“FAC”) ¶ 6, Doc. 27.) The loan at issue was administered pursuant to

the Federal Family Education Loan Program (“FFELP”), which is governed by the Higher

Education Act (“HEA”) and its implementing regulations. (Doc. 28-1 at 6.) Ascendium is the

guarantor for Plaintiff’s FFELP loan, and Pioneer operates as Ascendium’s collection agent. (Id.

at 2–3.)

Sometime after the loan was acquired, “Defendants submitted documents to the Ascension

Parish School Board and collected one pay period of Plaintiff’s wages” in an attempt to satisfy the

debt owed by Plaintiff. (FAC ¶ 11, Doc. 27.) Plaintiff asserts that “any and all amounts validly

owed by [him] have been satisfied.” (Id. ¶ 13.) According to the FAC, Defendants were “aware

their action to garnish Plaintiff’s wages [was] not procedurally correct and despite this

knowledge,” submitted documents to Plaintiff’s employer seeking to collect his wages anyway.

(Id. ¶ 11.)

Subsequently, Plaintiff filed the present suit alleging that Defendants’ actions violated

Louisiana’s Unfair Trade Practices and Consumer Protection Act (“LUTPA”), La. R.S. 51:1401,

et seq., and seeking damages and attorney’s fees under that Act.1 Specifically, Plaintiff gives two

primary reasons that Defendants engaged in “unfair trade practices” when they garnished his

wages. (FAC ¶ 14, Doc. 27.) First, Defendants did so without obtaining a valid Louisiana state

court judgment against Plaintiff. (Id.) Second, Defendants did so without providing Plaintiff with

“sufficient notice, evidence showing amounts owed, the institution where incurred, the year of

1 On July 6, 2020, Plaintiff filed this suit in the 23rd Judicial District Court for the Parish of Ascension, State of

Louisiana. (Doc. 1-2 at 1.) On October 2, 2020, Defendants removed the case to this Court. (Doc. 1.)

enrollment, nor documentation with Plaintiff’s signature connecting him to the debt sought to be

collected.” (Id.) In addition, Plaintiff asserts a claim for “unfair or deceptive business practices” in

violation of LUTPA, (id.), and states that Louisiana courts have “found a trade practice is deceptive

‘when it amounts to fraud, deceit, or misrepresentation,’ ” (id. ¶ 12). However, Plaintiff fails to

allege any facts in support of this claim.

II. Rule 12(b)(6) Standard

In Johnson v. City of Shelby, Miss., 574 U.S. 10 (2014), the Supreme Court explained

“Federal pleading rules call for a ‘short and plain statement of the claim showing that the pleader

is entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of a complaint for

imperfect statement of the legal theory supporting the claim asserted.” Johnson, 574 U.S. at 11

(citation omitted).

Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has

explained:

The complaint (1) on its face (2) must contain enough factual matter

(taken as true) (3) to raise a reasonable hope or expectation (4) that

discovery will reveal relevant evidence of each element of a claim.

“Asking for [such] plausible grounds to infer [the element of a

claim] does not impose a probability requirement at the pleading

stage; it simply calls for enough facts to raise a reasonable

expectation that discovery will reveal [that the elements of the claim

existed].”

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)).

Applying the above case law, the Western District of Louisiana has stated:

Therefore, while the court is not to give the “assumption of truth” to

conclusions, factual allegations remain so entitled. Once those

factual allegations are identified, drawing on the court's judicial

experience and common sense, the analysis is whether those facts,

which need not be detailed or specific, allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” [Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)]; Twombly,

55[0] U.S. at 556. This analysis is not substantively different from

that set forth in Lormand, supra, nor does this jurisprudence

foreclose the option that discovery must be undertaken in order to

raise relevant information to support an element of the claim. The

standard, under the specific language of Fed. R. Civ. P. 8(a)(2),

remains that the defendant be given adequate notice of the claim and

the grounds upon which it is based. This standard is met by the

“reasonable inference” the court must make that, with or without

discovery, the facts set forth a plausible claim for relief under a

particular theory of law provided that there is a “reasonable

expectation” that “discovery will reveal relevant evidence of each

element of the claim.” Lormand, 565 F.3d at 257; Twombly, 55[0]

U.S. at 556.

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-00177, 2011 WL 938785, at *3

(W.D. La. Feb. 9, 2011) (citation omitted).

The Fifth Circuit further explained that, in deciding a Rule 12(b)(6) motion, all well-

pleaded facts are taken as true and viewed in the light most favorable to the plaintiff. Thompson v.

City of Waco, Tex., 764 F.3d at 500, 502–03 (5th Cir. 2014). The task of the Court is not to decide

if the plaintiff will eventually be successful, but to determine if a “legally cognizable claim” has

been asserted.” Id. at 503.

III. Discussion

A. Parties’ Arguments

1. Defendants’ Original Memorandum (Doc. 28-1)

First, Defendants assert that Plaintiff’s First Amended Complaint must be dismissed

because it “still fails to allege facts sufficient” to state any claim for relief. (Doc. 28-1 at 1.)

Specifically, Defendants argue that the operative complaint “consists of a number of legal

conclusions regarding the Defendants’ alleged misconduct” and violations of LUTPA yet fails to

present any factual allegations to support those claims. (Id. at 5.) In other words, Defendants claim

that the facts alleged in the FAC fail to give them “adequate notice” of Plaintiff’s LUTPA claim

and “the grounds upon which it is based.” (Id.)

Moreover, among the scant facts that Plaintiff does provide, Defendants maintain that most

of those factual allegations are completely unsupported. (Id. at 2 (“A basic inquiry into the facts

and law relevant to this case would have revealed to Plaintiff that each of these statements is

unsupported.”).) For example, Plaintiff alleges that he was given neither notice nor any

documentation evidencing his connection to the debt being collected, yet, Defendants assert that

“Plaintiff received advance notice of the wage garnishment on July 29, 2019.” (Id. at 3.) Further,

Defendants point out that the Promissory Note “memorializing Plaintiff’s agreement to repay the

debt” was included in their Notice of Removal filed on October 2, 2020, several months before

Plaintiff filed the FAC. (Id. at 2.)2

Defendants next argue that, even if the operative complaint is sufficiently specific enough

to state a claim for relief, dismissal with prejudice is nevertheless warranted for other reasons.

First, Plaintiff’s vague assertion that Defendants violated LUTPA by engaging in conduct that

“amounts to fraud, deceit, or misrepresentation” is unsupported by any facts. (Id. at 8.) LUTPA

claims based on “allegedly fraudulent misrepresentation . . . must meet the heightened pleading

requirements of Rule 9(b).” (Id. (quoting Pinero v. Jackson Hewitt Tax Serv. Inc., 594 F. Supp. 2d

710, 721 (E.D. La. 2009)).) As such, Defendants assert that Plaintiff has not pleaded with the

specificity required under Federal Rule of Civil Procedure 9(b) to state a LUTPA claim based on

allegations of fraud.

2 Attached to Defendants’ motion are the Promissory Note (Exhibit A, Doc. 28-2) and the Administrative Decision

and Order authorizing Defendants’ garnishment of Plaintiff’s wages (Exhibit B, Doc. 28-3). Defendants urge that the

Court may properly consider both documents without treating the motion to dismiss as one for summary judgment.

(Doc. 28-1 at 4.) See Garig v. Travis, No. 20-654, 2021 WL 2708910, at *23, n.9 (M.D. La. June 30, 2021). However,

because it is unnecessary for the Court to consider these documents in determining whether to grant the motion, the

Court need not address this issue at this time.

Next, Defendants argue that Plaintiff’s LUTPA claim must be dismissed because it is

preempted by the HEA. (Id. at 6.) Plaintiff’s LUTPA claim is premised on his allegation that

Defendants “improperly garnished his wages” because they failed to seek a Louisiana state court

judgment beforehand. (Id.) However, Defendants point out that Plaintiff’s loan was issued

pursuant to the FFELP, “which is governed by the HEA and its implementing regulations.” (Id.)

“Congress, the Department of Education, and courts across the country agree that the HEA

preempts causes of action based on wage garnishment.” (Id. (citing 20 U.S.C. § 1095a; 34 C.F.R.

§ 682.410(b)(9)(T)(1); Murungi v. Texas Guaranteed, 646 F. Supp. 2d 804, 810 (E.D. La. 2009)).)

2. Plaintiff’s Opposition (Doc. 33)

Plaintiff opposes the motion, arguing that the FAC “not only meets but exceeds” the

standard imposed by Federal Rule of Civil Procedure 8(a) for adequately stating a claim for relief.

(Doc. 33 at 1.) According to Plaintiff, the “simplified notice pleading standard” embodied by Rule

8(a) “relies on liberal discovery rules and summary judgment motions to define disputed facts and

to dispose of unmeritorious claims.” (Id. at 2.) Hence, if the information sought by the Rule

12(b)(6) motion is obtainable through discovery, and the complaint is not completely

“unintelligible” or “confusing,” the motion should be denied. (Id.) Plaintiff does not substantively

address Defendants’ arguments that the operative complaint fails to satisfy Federal Rule of Civil

Procedure 9(b) and that the LUTPA claim is preempted. He does allege that Defendants are

“attempting to hide under their incorrect interpretation” of the HEA, but he provides no

explanation as to why Defendants’ interpretation is erroneous. (Id. at 3.)

B. Law and Analysis

1. Waiver

As will be discussed below, Plaintiff failed to substantively respond to any of the arguments

made in Defendants’ motion to dismiss and thus has waived any argument to the contrary.

Consequently, the Court could dismiss Plaintiff’s claim on this ground alone.

“The Fifth Circuit makes it clear that when a party does not address an issue in his brief to

the district court, that failure constitutes a waiver on appeal.” Payton v. Town of Maringouin, No.

18-563, 2021 WL 2544416, at *26 (M.D. La. June 21, 2021) (deGravelles, J.) (quoting JMCB,

LLC v. Bd. Of Commerce & Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (deGravelles, J.)

(quoting Magee v. Life Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003))); see

also JTB Tools & Oilfield Servs., L.L.C. v. United States, 831 F.3d 597, 601 (5th Cir. 2016) (stating

that, “to avoid waiver, a party must identify relevant legal standards and any relevant Fifth Circuit

cases” and holding that, because appellant “failed to do either with regard to its underlying claims,

those claims were inadequately briefed and therefore waived”) (cleaned up); United States v.

Reagan, 596 F.3d 251, 254 (5th Cir. 2010) (defendant’s failure to offer any “arguments of

explanation . . . is a failure to brief and constitutes waiver”).

“By analogy, failure to brief an argument in the district court waives that argument in that

court.” Payton, 2021 WL 2544416, at *26 (quoting JMCB, 336 F. Supp. 3d at 634 (quoting Magee,

261 F. Supp 2d at 748 n.10)); see also United States ex rel. Wuestenhoefer v. Jefferson, 105 F.

Supp. 3d 641, 672 (N.D. Miss. 2015) (citing United States v. Dominguez-Chavez, 300 F. App’x

312, 313 (5th Cir. 2008); El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009) (“Issues adverted

to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed waived. It is not sufficient for a party to mention a possible argument in [a] skeletal way,

leaving the court to put flesh on its bones.”)); Kellam v. Servs., No. 12-352, 2013 WL 12093753,

at *3 (N.D. Tex. May 31, 2013), aff’d sub nom. Kellam v. Metrocare Servs., 560 F. App’x 360

(5th Cir. 2014) (“Generally, the failure to respond to arguments constitutes abandonment or waiver

of the issue.” (citations omitted)); Mayo v. Halliburton Co., No. 10-1951, 2010 WL 4366908, at

*5 (S.D. Tex. Oct. 26, 2010) (granting motion to dismiss breach of contract claim because plaintiff

failed to respond to defendants’ motion to dismiss on this issue and thus waived the argument).

In the instant case, Plaintiff’s opposition memorandum provides no substantive response

to Defendants’ arguments, particularly those concerning his failure to comply with Federal Rule

of Civil Procedure 9(b) in alleging fraud and preemption of his LUTPA claim. Plaintiff

haphazardly states that he is not required to satisfy the heightened pleading standard of Rule 9(b)

when stating a LUTPA claim based on allegations of fraud or deceit, but he provides no substantive

law—or attempted reasoning, for that matter—to support that conclusion. (Doc. 33 at 2.) Similarly,

Plaintiff’s only response to the preemption issue is that “Defendants are attempting to circumvent

due process by attempting to hide under their incorrect interpretation of the Higher Education Act.”

(Id. at 3.) He fails to provide his own purportedly correct interpretation of the HEA, an explanation

as to why Defendants are mistaken, or any case law to support his assertion.

Finally, Plaintiff failed to meaningfully oppose Defendants’ argument that he failed to state

a plausible claim for relief. As to this issue, Defendants’ principal argument is that Plaintiff

provided virtually no factual support for his claims. Plaintiff’s opposition is replete with rules of

law establishing Rule 8(a)’s pleading standard and when Rule 12(b)(6) motions should be granted,

but Plaintiff’s brief still provides no plausible explanation or sufficient facts to support his claims.

For example, Plaintiff responded that the FAC satisfies Rule 8(a)’s requirement of “a short and

plain statement of the claim showing that the pleader is entitled to relief[,]” Fed. R. Civ. P. 8(a)(2),

because it “describes how Defendants are attempting to collect on alleged loans without presenting

any proof of each loan amount and loan number along with the semesters and institution(s)

attended as it relates to each loan.” (Doc. 33 at 2-3.) The problem is that Plaintiff makes no attempt

to explain why those facts—even if true—would make Defendants liable. In other words, Plaintiff

fails to connect his factual allegations to his claim of wrongdoing.

Plaintiff continues, arguing that the FAC “clearly puts Defendants on fair notice” of the

claims brought against them, specifically because it “charges that pursuant to LUTPA, Defendants

attempt[ed] to collect on alleged loans through unfair or deceptive acts or practices in the conduct

of any trade or commerce.” (Id. at 3.) This response is likewise insufficient; Plaintiff still fails to

allege sufficient facts, and instead uses legal conclusions, to support his claims.

In sum, Plaintiff’s opposition fails to substantively address any of the arguments set forth

in Defendants’ motion. In addition, Plaintiff provides almost no substantive law in support of his

responses; when he does recite applicable law, it is “unaccompanied by any effort at developed

argumentation.” (Doc. 19 at 4.) As a result, Plaintiff has waived any opposition, and the Court will

grant Defendants’ motion on the grounds of waiver. See Payton, 2021 WL 2544416, at *26

(finding that, because the plaintiff failed to meaningfully oppose the motion on certain claims and

failed to provide case law in support, dismissal of those claims was warranted on the grounds of

waiver (citing JMCB, 336 F. Supp. 3d at 634 (finding that the operative complaint could be

dismissed because plaintiff failed to respond to the substance of defendant's arguments); Apollo

Energy, LLC v. Certain Underwriters at Lloyd's, London, 387 F. Supp. 3d 663, 672 (M.D. La.

2019) (deGravelles, J.) (finding that policy exclusion could apply because plaintiff failed to oppose

insurer’s argument on the issue))).

Nevertheless, even if Plaintiff had not waived opposition to the instant motion, the Court

is justified in dismissing Plaintiff’s claims for substantive reasons under Rule 12(b)(6). The Court

now turns to the merits of these claims.

2. Substantive Grounds for Dismissal

LUTPA prohibits “[un]fair methods of competition and unfair or deceptive acts or practices

in the conduct of any trade or commerce.” La. R.S. 51:1405(A). “Because of the broad sweep of

this language, Louisiana courts determine what a LUTPA violation is on a case-by-case basis.”

J&J Sports Prods., Inc. v. Tienda y Taqueiria "La Frontera," LLC, No. 16-568, 2017 WL 3166734,

at *13 (M.D. La. July 25, 2017) (deGravelles, J.) (quoting Quality Envtl. Processes, Inc. v. I.P.

Petroleum Co., Inc., 13-1582 (La. 5/7/14, 21), 144 So. 3d 1011, 1025). “The Louisiana Supreme

Court has consistently held that, in establishing a LUTPA claim, plaintiff must show that ‘the

alleged conduct offends established public policy and is immoral, unethical, oppressive,

unscrupulous, or substantially injurious.’ ” Id. (quoting Quality Envtl. Processes, 144 So. 3d at

1025). Moreover, “the range of prohibited practices under LUTPA is extremely narrow, as LUTPA

prohibits only fraud, misrepresentation, and similar conduct, and not mere negligence.” Id.

(quoting Quality Envtl. Processes, 144 So. 3d at 1025) (internal quotations omitted); see also Mapp

v. UMG Recordings, Inc., No. 15-602, 2017 WL 3675419, at *6 (M.D. La. May 3, 2017)

(deGravelles, J.).

The jurisprudence generally describes an unfair practice as one that “is unethical,

oppressive, unscrupulous, or substantially injurious.” Pinero v. Jackson Hewitt Tax Serv. Inc., 594

F. Supp. 2d 710, 721-22 (E.D. La. 2009) (quoting Jefferson v. Chevron U.S.A. Inc., 97-2436 (La.

App. 4 Cir. 5/20/98), 713 So. 2d 785, 792). Louisiana courts have distinguished between an unfair

practice and a deceptive one, stating that “[a] trade practice is deceptive when it amounts to ‘fraud,

deceit, or misrepresentation.’ ” Id. at 722 (quoting Jefferson, 713 So. 2d at 793); see also Computer

Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 404 (5th Cir. 2000). In addition,

and importantly here, the Eastern District of Louisiana has stated that when a “plaintiff’s LUTPA

claim is based on defendants’ allegedly fraudulent misrepresentation, plaintiff’s LUTPA claim

must meet the heightened pleading requirements of Rule 9(b).” Pinero, 594 F. Supp. 2d at 721

(reasoning that, because plaintiff’s fraud claim was dismissed for failure to explain “how” and

“why” the statements were fraudulent, her LUTPA claim must likewise be dismissed).

“Generally, a plaintiff's complaint will survive a Federal Rule of Civil Procedure 12(b)(6)

motion to dismiss if the complaint plausibly states a claim for relief, assuming its factual

allegations are true.” Trinity Med. Servs., L.L.C. v. Merge Healthcare Sols., Inc., No. 17-592, 2018

WL 3748399, at *5 (M.D. La. Aug. 7, 2018) (deGravelles, J.) (citing Local 731 I.B. of T.

Excavators and Pavers Pension Trust Fund v. Diodes, Inc., 810 F.3d 951, 956 (5th Cir. 2016)

(citing Ashcroft, 556 U.S. at 678)). “However, when the complaint involves a fraud allegation,

Federal Rule of Civil Procedure 9(b) requires a higher pleading standard.” Id. Specifically, this

pleading standard requires the plaintiff to “state with particularity the circumstances constituting

fraud.” 3 Id. (citing Fed. R. Civ. P. 9(b)).

“The Fifth Circuit has interpreted Federal Rule of Civil Procedure 9(b) strictly, requiring

the plaintiff to specify the statements contended to be fraudulent, identify the speaker, state when

and where the statements were made, and explain why the statements were fraudulent.” Id.

(quoting Flaherty & Crumrine Preferred Income Fund, Inc. v TXU Corp., 565 F.3d 200, 207 (5th

Cir. 2009)) (cleaned up). “In short, plaintiffs must plead enough facts to illustrate ‘the who, what,

3 In full, Federal Rule of Civil Procedure 9(b) provides the following: “In alleging fraud or mistake, a party must state

with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of

a person's mind may be alleged generally.”

when, where, why and how’ of the alleged fraud.” Schott, Tr. for Est. of InforMD, LLC v.

Massengale, No. 18-759, 2019 WL 4741811, at *12 (M.D. La. Sept. 27, 2019) (deGravelles, J.)

(quoting Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450, 453 (5th Cir. 2005)).

In the case at hand, Plaintiff alleges that Defendants violated LUTPA by engaging in

“unfair or deceptive business practices” and “unfair trade practices” because they garnished

Plaintiff’s wages (1) without first obtaining a valid state court judgment and presenting it to a

Louisiana court for recognition, and (2) without providing Plaintiff with notice and documentation

showing his connection to the debt, amounts owed, and the institution where incurred. (FAC ¶ 14,

Doc. 27.) Plaintiff additionally alleges that Defendants did this with full knowledge that their

garnishment was “not procedurally correct.” (Id. ¶ 11.)

Having considered the matter, the Court finds that Plaintiff failed to satisfy even the general

pleading standards required to survive a Rule 12(b)(6) motion. As for the claim that Defendants

engaged in “unfair” practices, Plaintiff has failed to show why Defendants’ actions were

“unethical, oppressive, unscrupulous, or substantially injurious.” Pinero, 594 F. Supp. 2d at 721-

22. Plaintiff similarly provides no explanation as to why Defendants committed “deceptive” trade

practices that amount to “fraud, deceit, or misrepresentation.” Id. at 722. By garnishing Plaintiff’s

wages, Defendants were merely engaging in a legal and appropriate business practice in order to

collect on the debt owed to them. As such, Plaintiff has not stated a viable claim for relief under

LUTPA.

Additionally, even if Plaintiff had sufficiently plead his LUTPA claims, he certainly does

not meet the heightened pleading standard imposed by Federal Rule of Civil Procedure 9(b). The

FAC does not specify what exact acts it alleges to be deceptive and fraudulent, nor does it state

when and where the fraudulent acts took place. And it certainly does not explain why those acts

are fraudulent. In sum, Plaintiff has not sufficiently plead enough facts to show the “who, what,

when, where, why and how” of the alleged fraud, as is required by the Fifth Circuit’s strict

interpretation of Rule 9(b). See Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450, 453 (5th

Cir. 2005) (quoting United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d

899, 903 (5th Cir. 1997)). Therefore, because Plaintiff has failed to allege fraud with the requisite

particularity, the LUTPA claim based on deceptive trade practices must be dismissed.

Finally, Defendants contend that Plaintiff’s LUTPA claim must be dismissed as it is

preempted by the HEA. (Doc. 28-1 at 6.) For the following reasons, the Court agrees.

The HEA’s wage garnishment requirements section provides that, “Notwithstanding any

provision of State law, a guaranty agency . . . may garnish disposable pay of an individual to collect

the amount owed by the individual.” 20 U.S.C. § 1095a(a) (emphasis added). Courts throughout

the country agree that, because of this provision, the HEA preempts state law claims concerning

administrative wage garnishment. See Bennett v. Premiere Credit of N. Am., LLC, 504 F. App'x

872, 879 (11th Cir. 2013) (finding that—because the Georgia wage garnishment statute “hinders

[the guarantor’s] ability to garnish a debtor’s wages” by requiring the guarantor to obtain a state

court judgment prior to wage garnishment—the Georgia statute is preempted by the HEA); Cliff

v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1125 (11th Cir. 2004) (noting that, because

Congress purposefully “include[d] a provision that directly addresses the preemption of state law”

when it drafted the language of 20 U.S.C. § 1095a(a), the HEA expressly preempts state law claims

relating to wage garnishment); Wheeler v. Premiere Credit of N. Am., LLC, 80 F. Supp. 3d 1108,

1116 (S.D. Cal. 2015) (finding that the plaintiff’s cause of action under state law dealing with debt

collection practices was preempted because of the specific language of 20 U.S.C. § 1095a);

Murungi v. Texas Guaranteed, 646 F. Supp. 2d 804, 810 (E.D. La. 2009) (where the court

“acknowledge[d] that any [state law] claim predicated on required contacts or a valid wage

garnishment is preempted[,]” and stated that it would dismiss those state law claims in the future

if the student loan guarantors can demonstrate that they merely complied with the HEA and its

implementing regulations when they contacted plaintiff and garnished his wages); Educ. Credit

Mgmt. Corp. v. Wilson, No. 1:05-CV-41, 2005 WL 1263027, *4 (E.D. Tenn. May 27, 2005) (“a

guaranty agency seeking to garnish an employee’s wages pursuant to 20 U.S.C. § 1095a need not

comply with state laws governing garnishment orders.”).

Again, in his FAC, Plaintiff claims that Defendants violated LUTPA because they

“garnished Plaintiff’s wages without obtaining a valid judgment and presenting same to a

Louisiana court for recognition[.]” (FAC ¶ 14, Doc. 27.) Plaintiff also alleges that Defendants

failed to provide “sufficient notice, evidence showing amounts owed, the institution where

incurred, the year of enrollment, nor documentation with Plaintiff’s signature connecting him to

the debt sought to be collected.” (Id.)

Here, Plaintiff obtained a FFELP Federal Consolidation Loan, which is undisputedly

governed by the HEA and its implementing regulations. Because Plaintiff’s LUTPA claim is

premised on his conclusion that the wage garnishment at issue was procedurally incorrect under

state law requirements, the Court finds that Plaintiff’s cause of action is preempted by the HEA.

Therefore, with multiple bases for dismissing Plaintiff’s LUTPA claims, the Court will dismiss

Plaintiff’s FAC.

IV. Leave to Amend

Plaintiff has not requested leave to amend his First Amended Complaint. Out of an

abundance of caution, however, the Court will nevertheless explain why an additional amendment

will not be allowed.

Federal Rule of Civil Procedure 15(a) “requires the trial court to grant leave to amend

freely;” further, “the language of this rule evinces a bias in favor of granting leave to amend.”

Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005) (internal citations omitted).

However, “leave to amend is in no way automatic, but the district court must possess a ‘substantial

reason’ to deny a party's request for leave to amend.” Marucci Sports, L.L.C. v. Nat’l Collegiate

Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (citing Jones, 427 F.3d at 994). The Fifth Circuit

further described the district courts’ discretion on a motion to amend as follows:

The district court is entrusted with the discretion to grant or deny a

motion to amend and may consider a variety of factors including

“undue delay, bad faith or dilatory motive on the part of the movant,

repeated failures to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party . . . , and futility of

the amendment.” Jones, 427 F.3d at 994. (citation omitted). “In light

of the presumption in favor of allowing pleading amendments,

courts of appeals routinely hold that a district court's failure to

provide an adequate explanation to support its denial of leave to

amend justifies reversal.” Mayeaux v. La. Health Serv. & Indent.

Co., 376 F.3d 420, 426 (5th Cir. 2004) (citation omitted). However,

when the justification for the denial is “readily apparent,” a failure

to explain “is unfortunate but not fatal to affirmance if the record

reflects ample and obvious grounds for denying leave to amend.”

(citation and internal quotation marks omitted).

Id., 751 F.3d at 378 (emphasis added).

In addition, the Fifth Circuit has made clear that “denying a motion to amend is not an

abuse of discretion if allowing an amendment would be futile.” Id. at 379 (citing Briggs v. Miss.,

331 F.3d 499, 508 (5th Cir. 2003)). An amendment would be deemed futile “if it would fail to

survive a Rule 12(b)(6) motion.” Id.

Applying this standard, the Court will not allow Plaintiff to make an additional amendment.

The Court’s prior Ruling and Order on Defendants’ original motion to dismiss should have

notified Plaintiff of the waiver issue and the possibility that he simply could not allege sufficient

facts support his claims. (See Doc. 19 at 5–6 (where the Court reminded Plaintiff of his obligations

under Fed. R. Civ. P. 11(b) that he “should have a good faith basis in law and fact for any claims

he makes”).) As stated above, “repeated failures to cure deficiencies by amendments previously

allowed” is a factor to consider when granting or denying leave to amend, as is undue delay.

Marucci Sports, 751 F.3d at 378 (citation omitted). The Court finds that these factors weigh in

favor of denying leave to amend.

More importantly, however, the Court finds that any amendment here would be futile. As

discussed above, given the fact that the HEA governs Defendants’ wage garnishment procedures,

and given the fact that the HEA preempts Plaintiff’s state law LUTPA claims, there is currently

no basis for a claim against Defendants. For this additional reason, the Court will deny Plaintiff

leave to amend and dismiss his claims with prejudice.

V. Conclusion

Accordingly,

IT IS ORDERED that the Motion to Dismiss Plaintiff’s First Amended Complaint (Doc.

28) filed by Defendants Ascendium Education Group and Pioneer Credit Recovery, Inc. is

GRANTED and that all of Plaintiff’s claims against Defendants are DISMISSED WITH

PREJUDICE.

Signed in Baton Rouge, Louisiana, on November 24, 2021.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA