Raphiel v. Haley Residential Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

DECALVIN SHUNTRELL RAPHIEL CIVIL ACTION NO. 22-0427

VERSUS JUDGE S. MAURICE HICKS, JR.

HALEY RESIDENTIAL INC., ET AL. MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Before the Court is a Motion to Dismiss (Record Document 20) filed by Defendant,

Daniel Clatanoff (“Clatanoff”), seeking dismissal of all claims filed by Plaintiff, Decalvin

Shuntrell Raphiel (“Raphiel”), pursuant to Federal Rules of Civil Procedure 12(b)(2),

12(b)(4), and 12(b)(6). Raphiel filed an opposition (Record Document 23), and Clatanoff

filed a reply (Record Document 25). For the following reasons, Clatanoff’s Motion to

Dismiss is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

On February 9, 2022, Raphiel filed suit in this Court against seven named

defendants, alleging a violation of his consumer rights and the use of abusive debt

collection procedures under the Fair Debt Collection Practices Act (“FDCPA”). See

Record Document 1. The Complaint seeks relief in the form of $100,000 and requests

that Raphiel’s accounts “be zero [sic] out.” See id. at 4. Raphiel does not specify which

debts the defendants were seeking to collect, other than to list potential debts owed to

companies for “lighting, Cell [sic] phone, apartment, and Wi-Fi.” See id. at 1. With respect

to abusive trade practices, Raphiel alleges that the defendants generally have been

violating the following: “15 U.S.C. 1692C Communication in connection with debt

collection. Calling, sending bill”; “15 U.S.C. 1692D Harassment or abuse, Demanding I

pay a debt”; and “21 U.S.C. 3718 Contract for collection services, without presenting a

contract to collect.” See id. at 3.

In his Motion to Dismiss, Clatanoff states that he is the Chief Executive Officer of

Dial Equities, Inc, doing business as Haley Residential; Haley Residential is a business

named in Raphiel’s Complaint. See Record Document 20-1 at 1 n.1. Clatanoff attempted

to interpret Raphiel’s Complaint as broadly as possible, but ultimately, he urges the Court

to dismiss all potential claims raised therein against Clatanoff for the following reasons:

(1) this Court lacks personal jurisdiction over Clatanoff, who is a citizen of Nebraska; (2)

process was insufficient; and (3) Raphiel fails to plead any factual allegations that could

state a claim under the FDCPA or any other law. See Record Document 20 at 1.

Raphiel’s opposition largely does not address Clatanoff’s Motion to Dismiss, but

rather propounds interrogatories to defense counsel. See Record Document 23. One

page of the opposition is devoted to Clatanoff’s Motion to Dismiss; however, that page

does not make new arguments or add any additional information. See id. at 9.

In his reply, Clatanoff argues (1) Raphiel’s opposition was untimely and thus

should not be considered, and (2) alternatively, if considered, the opposition fails to

sufficiently oppose the motion. See Record Document 25. The deadline for filing the

opposition to Clatanoff’s Motion to Dismiss was May 4, 2022, but Raphiel did not file his

opposition until May 10, 2022. See id. Thus, Clatanoff urges the Court to disregard the

opposition. See id. However, even if the Court considers the opposition in deciding the

Motion to Dismiss, Clatanoff asserts that Raphiel’s opposition “mainly serves as a vehicle

to propound interrogatories onto Clatanoff’s counsel, personally,” and even further,

Raphiel did not add any information “to flesh out the conclusory allegations set forth in

the Complaint.” See id. at 1–2.

LAW AND ANALYSIS

I. Legal Standard under FRCP 12(b)(2)

A motion pursuant to Rule 12(b)(2) allows a party to move to dismiss for lack of

personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). “Where a defendant challenges

personal jurisdiction, the party seeking to invoke the power of the court bears the burden

of proving that jurisdiction exists.” Luv N'Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469

(5th Cir. 2006) (citing Wyatt v. Laplan, 686 F.2d 276, 280 (5th Cir. 1982)). When a court

rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary

hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. See

Rd. Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO v. CCR Fire Prot., LLC, Civil

Action No. 16-448-JWD-EWD, 2018 WL 3076743, at *4 (M.D. La. June 21, 2018).

“Moreover, on a motion to dismiss for lack of jurisdiction, uncontroverted allegations in

the plaintiff's complaint must be taken as true, and conflicts between the facts contained

in the parties' affidavits must be resolved in the plaintiff's favor for purposes of determining

whether a prima facie case for personal jurisdiction exists.” Bullion v. Gillespie, 895 F.2d

213, 217 (5th Cir. 1990) (quoting D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent

Gregg, Inc., 754 F.2d 542, 546 (5th Cir. 1985)).

II. Legal Standard under FRCP 12(b)(4)

Rule 12(b)(4) of the Federal Rules of Civil Procedure permits a defendant to move

to dismiss an action for defects in the form of the process. Such a motion is proper only

to challenge non-compliance with the provisions of Rule 4(b) of the Federal Rules of Civil

Procedure or any applicable provision incorporated by Rule 4(b) that deals specifically

with the content of the summons. See Ceasar v. Dillards Dep't Store, No. CV 6:17-01066,

2018 WL 3030126, at *1 (W.D. La. May 31, 2018), report and recommendation adopted

sub nom. Ceaser v. Dillards Dep't Store, No. 6:17-CV-1066, 2018 WL 3029336 (W.D. La.

June 18, 2018). One such applicable provision is Rule 4(c), which states that “[a]

summons must be served with a copy of the complaint.”

III. Legal Standard under FRCP 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the pleading standard

to state a claim for relief, requiring that a pleading contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” While some specific causes of

action have a heightened pleading standard imposed on them by the Rules or statute,

that is not the case for claims under Title VII. See Swierkiewicz v. Sorema N.A., 534 U.S.

506, 508 (2002). The standard for the adequacy of all complaints under Rule 8(a)(2) is

now the “plausibility” standard found in Bell Atlantic Corp. v. Twombly and its progeny.

550 U.S. 544 (2007). Under this standard, “[f]actual allegations must be enough to raise

a right to relief above the speculative level . . . on the assumption that all the allegations

in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). If a

pleading only contains “labels and conclusions” and “a formulaic recitation of the elements

of a cause of action,” the pleading does not meet the standards of Rule 8(a)(2). Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a

party’s pleading for “failure to state a claim upon which relief can be granted.” Courts must

accept all factual allegations in the complaint as true. See Iqbal, 556 U.S. at 678.

However, courts do not have to accept legal conclusions as facts. See id. A court does

not evaluate a plaintiff’s likelihood for success, but instead determines whether a plaintiff

has pleaded a legally cognizable claim. See Thompson v. City of Waco, 764 F.3d 500,

503 (5th Cir. 2014). Courts considering a motion to dismiss under Rule 12(b)(6) are only

obligated to allow those complaints that are facially plausible under the Iqbal and

Twombly standard to survive such a motion. See Iqbal, 556 U.S. at 679. If the complaint

does not meet this standard, it can be dismissed for failure to state a claim upon which

relief can be granted. See id. Such a dismissal ends the case “at the point of minimum

expenditure of time and money by the parties and the court.’” Twombly, 550 U.S. at 558

(citations omitted).

IV. Analysis

a. Personal Jurisdiction

In his Motion to Dismiss, Clatanoff first argues that this Court lacks personal

jurisdiction over Clatanoff, and thus, Raphiel’s claims should be dismissed under Rule

12(b)(2). See Record Document 20-1 at 8. Clatanoff asserts that Raphiel has failed to

carry his burden of making a prima facie showing that this Court may exercise personal

jurisdiction over Clatanoff. See id.

Under Fifth Circuit precedent, personal jurisdiction over a defendant exists if (1)

the state's long-arm statute extends to the defendant, and (2) the exercise of such

jurisdiction is consistent with due process. See Johnston v. Multidata Sys. Int'l Corp., 523

F.3d 602, 609 (5th Cir. 2008). The Louisiana long arm statute extends as far as is

permitted by due process. See Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640

(5th Cir. 2002). The exercise of personal jurisdiction over a defendant comports with due

process only if (1) the defendant has purposefully availed himself of the benefits and

protection of Louisiana by establishing “minimum contacts” with Louisiana, and (2) the

exercise of personal jurisdiction over the defendant does not offend traditional notions of

fair play and substantial justice. See Allred v. Moore & Peterson, 117 F.3d 278, 285 (5th

Cir. 1997).

Under the minimum contacts test, a defendant may be subject to either “general

jurisdiction” or “specific jurisdiction.” See Ford v. Mentor Worldwide, LLC, 2 F. Supp. 3d

898, 903 (E.D. La. 2014). General jurisdiction arises when a defendant maintains

“continuous and systematic” contacts with the forum state, even when the cause of action

has no relation to those contacts. See Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 414–16 (1984). “The Fifth Circuit has characterized the ‘continuous and

systematic contacts’ test as a ‘difficult one to meet.’” Ford, 2 F. Supp. 3d at 903 (citing

Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008)). “[E]ven repeated

contacts with forum residents by a foreign defendant may not constitute the requisite

substantial, continuous and systematic contacts required for a finding of general

jurisdiction.” Johnston, 523 F.3d at 609 (quoting Revell v. Lidov, 317 F.3d 467, 471 (5th

Cir. 2002)). “For an individual, the paradigm forum for the exercise of general jurisdiction

is the individual’s domicile[.]” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 924, 131 S. Ct. 2846 (2011).

Specific jurisdiction exists where a nonresident defendant “has ‘purposefully

directed its activities at the forum state and the litigation results from alleged injuries that

arise out of or relate to those activities.’” Panda Brandywine Corp. v. Potomac Elec. Power

Co., 253 F.3d 865, 868 (5th Cir. 2001) (quoting Alpine View Co. v. Atlas Copco A.B., 205

F.3d 208, 215 (5th Cir. 2000)). “The non-resident’s ‘purposeful availment’ must be such

that the defendant ‘should reasonably anticipate being haled into court’ in the forum

state.” Ruston Gas Turbines Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir. 1993)

(quoting World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 580

(1980)). The Fifth Circuit has formulated a three-step analysis for specific jurisdiction:

(1) whether the defendant has minimum contacts with the

forum state, i.e., whether it purposely directed its activities

toward the forum state or purposefully availed itself of the

privileges of conducting activities there; (2) whether the

plaintiff's cause of action arises out of or results from the

defendant's forum-related contacts; and (3) whether the

exercise of personal jurisdiction is fair and reasonable.

Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006) (citations

omitted).

Here, Raphiel has made neither a showing of general jurisdiction nor specific

jurisdiction over Clatanoff. First, there is no allegation within the Complaint that would

satisfy the test for general jurisdiction. Notably, Clatanoff resides in Nebraska, and there

is no allegation that he maintains a domicile in Louisiana. See Record Document 20-1 at

8; see also Brown, 564 U.S. at 924 (noting that “the paradigm forum for the exercise of

general jurisdiction is the individual’s domicile”). Further, there are no allegations that

would demonstrate “continuous and systematic” contact by Clatanoff in this jurisdiction.

In fact, Clatanoff argues he has only visited Louisiana once, in a matter unrelated to this

case. See Record Document 20-1 at 8. Additionally, there is no allegation that would

demonstrate specific jurisdiction over Clatanoff, as the Complaint makes no allegations

as to what debts were collected, what allegedly abusive practices were used, or how the

injury arose out of Clatanoff’s actions. This Court thus agrees with Clatanoff’s assertions

and finds that Raphiel has failed to make a prima facie showing of either general or

specific jurisdiction over Clatanoff.

Clatanoff also argues that, even if personal jurisdiction existed here, Clatanoff

would be shielded as an executive or employee of Haley Residential. See id. The fiduciary

shield doctrine “holds that an individual's transaction of business within the state solely

as a corporate officer does not create personal jurisdiction over that individual though the

state has in personam jurisdiction over the corporation.” Stuart v. Spademan, 772 F.2d

1185, 1197 (5th Cir. 1985); see also MCR Mktg., L.L.C. v. Regency Worldwide Servs.,

L.L.C., No. CIV. 08-1137, 2009 WL 728523, at *5 (W.D. La. Mar. 18, 2009). Thus,

Clatanoff argues that his “past, limited contacts with the forum state were in his official

capacity on behalf of Haley Residential, and therefore, the ‘fiduciary shield doctrine’

precludes the exercise of jurisdiction over Clatanoff.” See Record Document 20-1 at 9.

This Court agrees and finds that personal jurisdiction simply does not exist over Clatanoff

in this matter.

Further, rather than address these deficiencies in his opposition to the Motion to

Dismiss, Raphiel merely posed interrogatories and facially reenforced his Complaint

without additional facts or argument. See Record Document 23. The burden was on

Raphiel to come forward with a prima facie case for this Court’s exercise of personal

jurisdiction, yet Raphiel failed to do so. See Luv N'Care, Ltd., 438 F.3d at 469. Thus,

because Raphiel has not made any allegations that would demonstrate this Court’s ability

to exercise personal jurisdiction over Clatanoff, the Motion to Dismiss is GRANTED

pursuant to Rule 12(b)(2).

b. Insufficient Process

Clatanoff also states that he did not receive the summons and Complaint at the

same time, as required by Rule 4(c). See Record Document 20-1 at 9. Clatanoff argues

that, “[t]aken as a whole, Raphiel’s actions show a lack of good faith and thus he is not

entitled to leniency on the issue of an improper summons.” See id. In support of this

argument, Clatanoff points to Raphiel’s difficulties in procuring service on various

defendants, as well as the improper filings made by Raphiel with the Court, to show that

Raphiel is not entitled to leniency for the process defect. See id.

Rule 4(c) of the Federal Rules of Civil Procedure states that “[a] summons must

be served with a copy of the complaint.” Because the record shows that Raphiel failed to

serve the Complaint and the summons together, process was insufficient. Clatanoff also

points out that in his opposition, Raphiel “admits that he failed to follow the Federal Rules

of Civil Procedure for sufficient process.” See Record Document 25 at 2. The Court thus

agrees with Clatanoff that this procedural defect can justify dismissal of Raphiel’s claims

against Clatanoff. Thus, the Motion to Dismiss is alternatively GRANTED pursuant to

Rule 12(b)(4).

c. Claim Under FDCPA

Finally, Clatanoff argues that, even if this Court found both personal jurisdiction

over Clatanoff and excused the insufficient process, Raphiel’s claims fail as a matter of

law under Rule 12(b)(6). See Record Document 20-1 at 9. Clatanoff asserts that the lack

of factual detail, uncured by Raphiel’s opposition, is fatal to all claims against Clatanoff in

the Complaint. See id. at 10. Specifically, Clatanoff argues that the Complaint lacks the

necessary “how’s” to make out a claim under the FDCPA, the key statute under which

Raphiel brings his suit. See id.

The FDCPA regulates “abusive, deceptive, and unfair debt collection practices” by

limiting the type and number of contacts a “debt collector” may make with a

debtor. See 15 U.S.C. § 1692. To state a claim under the FDCPA, a plaintiff must allege

that “(1) he has been the object of collection activity arising from [a] consumer debt, (2)

the defendant is a ‘debt collector’ as defined by the Act, and (3) the defendant has

engaged in an act or omission prohibited by the Act.” Saragusa v. Countrywide, No. CV

14-2717, 2016 WL 1059004, at *5 (E.D. La. Mar. 17, 2016), aff'd sub nom. Saragusa v.

Countrywide Home Loans, Inc., 707 F. App'x 797 (5th Cir. 2017).

This Court agrees with Clatanoff that Raphiel has failed to plead sufficient facts to

state a claim under the FDCPA. First, Raphiel did not specify any consumer debt that was

the subject of a collection activity. See Blount v. Cap. One Fin. Corp., No. CV 20-675-

JWD-EWD, 2021 WL 3912540, at *6 (M.D. La. Aug. 13, 2021), report and

recommendation adopted, No. CV 20-675-JWD-EWD, 2021 WL 3909664 (M.D. La. Aug.

31, 2021) (“Plaintiff must allege enough facts to make a threshold showing that the

FDCPA applies, including that there is a covered ‘debt’ and that [the defendant] is a ‘debt

collector.’”). Second, Raphiel has not alleged that Clatanoff is a “debt collector” as defined

in the FDCPA. And, as Clatanoff points out, the FDCPA expressly excludes from the

definition of “debt collector” “any officer or employee of a creditor” who “in the name of

the creditor, collect[s] debts for such creditor.” See 15 U.S.C. § 1692a; Roberts v. Am.

Bank & Tr. Co., 835 F. Supp. 2d 183, 197 (E.D. La. 2011) (finding that “bank employee”

does not qualify as a debt collector under the FDCPA); Dixon v. Gen. Motors Fin. Corp.,

No. CV 17-4492, 2018 WL 4701540, at *4 (E.D. La. Oct. 1, 2018) (finding that “Individual

Defendants are employees of GM Financial . . . not subject to the FDCPA”). Thus,

Clatanoff, as an officer, is likely excluded from the definition of “debt collector.” Third,

Raphiel fails to allege what activity Clatanoff engaged in that violated the FDCPA. In fact,

Raphiel does not allege that any interaction occurred between Clatanoff and himself at

all. See Record Document 18-1 at 11. Raphiel’s conclusory allegations that he received

phone calls and was the subject of some harassment is insufficient to state a claim against

Clatanoff specifically. A generalized billing dispute with various companies does not rise

to the level of a viable FDCPA complaint against Clatanoff. Thus, because Raphiel failed

to plead a plausible claim for relief against Clatanoff under the FDCPA, or any other law,

the Motion to Dismiss is GRANTED pursuant to Rule 12(b)(6).

CONCLUSION

Based on the reasons outlined above,

IT IS ORDERED that Clatanoffs Motion to Dismiss (Record Document 20) is

GRANTED. All claims filed by Raphiel against Clatanoff are DISMISSED WITH

PREJUDICE.

An order consistent with this ruling shall issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 16th day of February,

2023.

UNITED STATES DISTRICT COURT

11