Opinion

United States v. LaBorde

Court
District Court, W.D. Louisiana
Filed
Mar 25, 2021
Cited by
0 cases
Authority
More cited than 22.6%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA CIVIL ACTION NO. 20-1087

VERSUS JUDGE S. MAURICE HICKS, JR.

WENDI L. LABORDE, ET AL. MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Before the Court is a Motion to Dismiss filed by Defendant Wendi L. LaBorde

(“LaBorde”). See Record Document 6. Plaintiff, the United States of America (“the

Government”), opposes the Motion. See Record Document 8. LaBorde has filed two

replies to this opposition. See Record Documents 9 & 13. For the following reasons,

LaBorde’s Motion to Dismiss is DENIED.

FACTUAL BACKGROUND

In this lawsuit, the Government seeks to set aside an alleged fraudulent transfer.1

In 2010, the Government won a judgment against LaBorde in this Court to collect debts

owed from several defaulted student loans. See Record Document 1 at ¶9. The judgment

held that LaBorde owed the Government nearly $300,000 in principal and nearly

$100,000 in interest continuing to accrue and to be compounded annually. See id.

LaBorde did not make any payments on this judgment from 2011 through 2016 but began

making $200 monthly payments in 2017 after a demand letter from the Government. See

1 LaBorde disputes many of the factual allegations made in the Government’s complaint, accusing the

Assistant United States Attorney of fabrication and ulterior motives. See Record Document 6. For purposes

of the instant motion, the Court must accept the non-movant’s factual allegations as true. Accordingly, the

Government’s complaint serves as the primary basis for this Factual Background section.

id. at ¶¶44-45. At the time of filing, the balance of the debt owed—including surcharges,

principal, and pre-CARES Act interest—was $440,482.11, See id. at ¶46.

In 2014, LaBorde received $37,500.00 from the settlement of her father’s estate.

See id. at ¶12. Less than one month later, LaBorde received the proceeds of her mother’s

life insurance policy in the amount of $485,902.60. See id. at ¶16. While LaBorde

unsuccessfully offered to satisfy her debt with a $35,000 lump sum payment shortly after

receiving her father’s estate settlement, she did not disclose her receipt of life insurance

proceeds to the Government. See id. at ¶¶13-16. Days after coming into these funds,

LaBorde formed the CCLCA Trust (“the Trust”) on September 18, 2014, with LaBorde’s

daughter as the sole beneficiary. See id. at ¶¶18-19. LaBorde donated the entirety of her

mother’s life insurance policy to the Trust the day it was formed. See id. at ¶21. On

September 30, 2014, the Trust purchased a new Toyota. See id. at ¶25. On October 22,

2014, the Trust purchased a condominium in San Diego, California. See id. at ¶27. The

Government contends that LaBorde herself drove this car and lived in this condominium;

her daughter was never the beneficiary of these purchases. See id. at ¶¶32-36.

The Government requests the $485,902.60 donation from LaBorde to the Trust be

declared a fraudulent transfer pursuant to 28 U.S.C. § 3304 et seq., and the property at

issue be declared owned by LaBorde and subject to the judgment lien. See id. at ¶61.

LAW AND ANALYSIS

Although LaBorde is actively seeking to hire counsel, she is currently proceeding

pro se. See Record Document 6. While her Motion to Dismiss does not cite specific

Federal Rules of Civil Procedure as the bases for dismissal, the Government has

discerned that LaBorde is challenging (1) service of process upon her, (2) venue in this

Court, and (3) the timeliness of the Government’s action. See Record Document 8. The

Court will address these arguments in turn, before discussing LaBorde’s CARES Act

concerns and alternative request to enroll in a repayment plan.

I. Insufficient Service of Process

Federal Rule of Civil Procedure 12(b)(5) permits a court to dismiss a complaint for

insufficient service of process. See Lewis v. Southern Oaks Nursing, L.L.C., 2019 WL

2526317 at *2 (W.D. La. June 19, 2019). Requiring proper service stems from the Due

Process Clause of the Fifth Amendment and demands that defendants receive adequate

notice of the proceedings against them. See Dusenbery v. United States, 534 U.S. 161,

167 (2002). The party effectuating service has the burden of demonstrating its validity.

See Quinn v. Miller, 470 F. App’x 321, 323 (5th Cir. 2012).

Federal Rule of Civil Procedure 4(m) permits a district court to extend time for

service when a defendant has not been served within ninety days of the complaint’s filing.

See Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). The court must first determine

whether good cause exists for the failure to timely serve a defendant. See id. If good

cause exists, the court must extend time for service; however, if good cause does not

exist, the court may extend time or dismiss the action without prejudice. See id. (emphasis

in original).

To date, the Government has been unable to serve LaBorde in the traditional

sense, but this has not been for lack of trying. The Assistant United States Attorney

overseeing this action has detailed, under penalty of perjury, the various steps taken in

attempting to serve LaBorde. See Record Document 8-1. These include numerous

mailings to both the condominium’s address and the reported new address of LaBorde,

as well as attempts by the U.S. Marshals to personally serve LaBorde in California at her

supposed home and place of business.2 See id. These outlined steps certainly constitute

good cause under Rule 4(m), and an extension beyond the ninety days permitted would

be mandatory.

Between the ninety-day deadline and the filing of the instant Motion to Dismiss,

however, LaBorde was properly served pursuant to Rule 4(e)(1). This Rule provides:

Unless federal law provides otherwise, an individual—other than a minor, an

incompetent person, or a person whose waiver has been filed—may be served in

a judicial district of the United States by following state law for serving a summons

in an action brought in courts of general jurisdiction in the state where the district

court is located or where service is made.

Fed. R. Civ. P. 4(e)(1). Under the Louisiana long arm statute for service of process, “all

that is necessary to constitute service upon a non-resident under the long-arm statute is

that counsel for the plaintiff send a certified copy of the citation and of the petition in the

suit to the defendant by registered or certified mail.” Dupree v. Torin Jacks, Inc., 2009 WL

366332 at *2 (W.D. La. Feb. 12, 2009) (citing HTS, Inc. v. Seahawk Oil & Gas, Inc., 889

So.2d 442, 444 (La. App. 3d Cir. 2004)); see also La. R.S. § 13:3204. Further, “[t]here is

no requirement under § 3204 for a signed return receipt.” Seahawk Oil & Gas, 889 So.2d

at 444-45.

On January 21, 2021, the Government sent a certified mailing of the summons and

complaint to what it believes to be LaBorde’s new home address with return receipt

requested. See Record Document 8-1 at ¶14. This satisfies Louisiana law for sufficient

service of process, and consequently, Rule 4(e)(1). In sum, the Government was entitled

to an extension beyond the ninety-days for proper service because of its valiant efforts to

2 Although the U.S. Marshal was unable to make contact with LaBorde at her home address, he did observe

packages on the doorstep with her name on them. See id.

effectuate process, and service of process did in fact take place upon the Government’s

certified mailing. As such, the Motion to Dismiss must be DENIED on this basis.

II. Improper Venue

Federal Rule of Civil Procedure 12(b)(3) permits a court to dismiss a complaint for

improper venue. See Louisiana Ice Cream Distributors, Inc. v. Carvel Corp., 821 F.2d

1031, 1032 (5th Cir. 1987). If a defendant objects to venue, the burden is on the plaintiff

to establish venue is proper in the judicial district where the case has been brought. See

Strange v. Carnival Corp., 2019 WL 1281251 at *4 (W.D. La. Mar. 20, 2019). In analyzing

a Rule 12(b)(3) motion to dismiss, the court must accept all allegations in the complaint

as true and resolve all conflicts in favor of the plaintiff. See Braspetro Oil Servs. Co. v.

Modec (USA), Inc., 240 F. App’x 612, 615 (5th Cir. 2007).

Although venue is generally governed by 28 U.S.C. § 1391, federal debt collection

actions such as the instant matter address venue and proper filing procedures within its

statutory scheme. See 28 U.S.C. § 3004. This provision calls for nationwide enforcement

of such actions and explicitly permits nationwide service of process. See 28 U.S.C. §

3004(b)(1)(A). Courts have held this nationwide service of process provision and §

3004(b)(1)(B)’s grant of authority to enforce it implicitly allow for venue to be proper in

any federal court. See United States v. Preston, 961 F. Supp.2d 133, 136 (D.D.C. Aug.

16, 2013); SEC v. Brightpoint, Inc., 2011 WL 6778493 at *1 (S.D.N.Y. Dec. 21, 2011).

While § 3004(b)(2) does contemplate transferring venue at the debtor’s request, this

provision applies only to Subchapters B (pre-judgment remedies) and C (post-judgment

remedies), not to fraudulent transfer actions. See 28 U.S.C. § 3004(b)(2).

LaBorde states she is unable to fly back and forth to Louisiana for a trial due to her

financial constraints. See Record Document 6. In her reply, she also requests this

litigation be moved to her home state of California. See Record Document 13. While it

may not be the most convenient forum for LaBorde, the Government’s choice of the

Western District of Louisiana as the venue for this suit appears well-reasoned and proper.

The six-figure judgment against LaBorde was won in this Court. See Record Document

1. The Trust was formed in this district and its trustee continues to reside within its

borders. See id. The federal statutes governing debt collection actions allows this matter

to be brought here. Venue is proper. The Motion to Dismiss for improper venue must be

DENIED.

III. Prescription of Action

LaBorde argues that in her free consultations with prospective attorneys, she has

been told the “statute of limitations to challenge the building of the Trust has already

expired.” Record Document 6. While the validity of the Trust is not at issue in this litigation,

LaBorde may have intended to argue prescription of the fraudulent transfer action at the

center of this lawsuit. For those actions under which the Government seeks relief, 28

U.S.C. § 3306(b) mandates a claim be brought within six years after the transfer was

made or the obligation was incurred. See §§ 3306(b)(1)-(2).3

The transfer at issue in this matter took place on September 18, 2014. See Record

Document 1 at ¶21. This lawsuit was filed on August 20, 2020. See Record Document 1.

Although close, the Government’s filing was timely by about four weeks. Accordingly,

LaBorde’s argument for prescription of this action is DENIED.

3 Section 3306(b) also allows this deadline to extend beyond six years if the transfer was not or could not

be reasonably discovered. However, the Government does not argue such a discovery rule issue.

IV. CARES Act

Although the Government does not address the CARES Act portion of LaBorde’s

Motion to Dismiss, the Court believes a brief discussion can provide important clarity to

LaBorde. LaBorde argues the Government is violating the CARES Act in proceeding with

this action against her. See Record Document 6. She states, “[t]he DOJ has no legal right

to contact me right now about the student loan debt.” Id.

While the CARES Act has temporarily suspended required payments towards and

interest on student loans, it is important to note the instant action is not an attempt to

collect on LaBorde’s student loans. Rather, this action seeks to declare the transfer of

funds from LaBorde to the Trust as fraudulent. The Government is not seeking to collect

its debt through this action. Although the success of this suit may prove critical to the

Government’s overarching attempts to secure its judgment, no illegal action is presently

being undertaken.

V. Repayment Plan Request

Finally, LaBorde’s second reply asks the Court to contact the DOJ and the

Assistant United States Attorney about giving LaBorde a “real opportunity to enroll in an

Income Drive Repayment plan.” Record Document 13. It is not the Court’s place to insert

itself into such compromise negotiations for this action or any others that may arise

between the parties. As such, this request is also DENIED.

CONCLUSION

For the reasons stated, LaBorde’s Motion to Dismiss (Record Document 6) is

hereby DENIED. An order memorializing this ruling shall issue herewith.

THUS DONE AND SIGNED in Shreveport, Louisiana on this 25th day of March,

2021.

□ “ ;

S. MAURICE HICKS, JR., CHIEF JUDGE

UNITED STATES DISTRICT COURT

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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