['Mizell v. Suntrust Bank']

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

ISADORE MIZELL, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-cv-1077 (KBJ)

)

SUNTRUST BANK, )

)

Defendant. )

)

MEMORANDUM OPINION

Plaintiff Isadore Mizell (“Mizell”), who is proceeding pro se, filed the instant

complaint in the Superior Court of the District of Columbia on June 18, 2013. Mizell

alleges that Defendant SunTrust Bank (“Defendant” or “SunTrust”) improperly closed

the bank account for Mizell’s travel agency business without first notifying him,

(Complaint (“Compl.”), ECF No. 1-1, ¶ 4), and maintains that Defendant is liable for

defamation (Count I), and breach of contract (Count II). (Id. ¶ 14.) On July 15, 2013,

Defendant removed the case to this Court. (Notice of Removal, ECF No. 1.) Three

days later, on July 18, 2013, Defendant filed a motion to dismiss Mizell’s complaint on

the grounds that Mizell’s claims were barred by the applicable statutes of limitation.

(See Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 3, at 1-2.) Mizell subsequently

filed a motion to remand the case to Superior Court on August 16, 2013. (Pl.’s Mot. to

Remand (“Pl.’s Mot.”), ECF No. 8, at 1.)

Both motions are currently before the Court. Because the Court concludes that

Defendant appropriately removed the case to federal court, and that both of Mizell’s

claims are barred by the applicable statutes of limitation, Plaintiff’s motion to remand

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is DENIED and Defendant’s motion to dismiss is GRANTED. An order consistent

with this opinion will follow.

I. BACKGROUND

Mizell is a businessman who resides in the District of Columbia. (Compl. ¶ 2.)

He is the owner of the Mizell Travel Agency (“Travel Agency”), which is also located

in D.C. (Compl. ¶ 4.) The Travel Agency had maintained an account with SunTrust, or

its predecessor banks, since September 14, 1981. (Id. ¶¶ 5, 10.) According to the

complaint, SunTrust closed the Travel Agency account on June 1, 2009, because two

checks written on the account were returned as a result of insufficient funds. (Id. ¶ 4.)

The complaint alleges that SunTrust sent no notification of the account’s closure either

to Mizell personally or the Travel Agency. (Id. ¶ 5.) The complaint further states that,

for three weeks after the closure of the account, SunTrust continued to accept deposits

(totaling more than $40,000), while at the same time refusing to honor any checks

written on the account. (Id. ¶ 6.) In addition, the complaint maintains that SunTrust

told other Travel Agency creditors—including credit card issuer CitiCorp—that the

Travel Agency’s bank account was “frozen,” which resulted in those other creditors

canceling their credit accounts with the Travel Agency. (Id. ¶ 7.) Mizell alleges that,

in total, four of the Travel Agency’s credit cards, representing a total of $110,000 in

lines of credit, were cancelled. (Id. ¶ 8.) Moreover, Mizell contends that, because of

his “frozen” bank account, the Travel Agency lost the services of one of its major

business partners, American Airlines, which “severely hamper[ed]” the Travel

Agency’s ability to do business. (Id. ¶ 11.) Finally, Mizell asserts that, when he

requested that Defendant remit to him the money that was on deposit in the SunTrust

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bank account at the time that it was closed without notice, Defendant made him wait

“another 10 days” before remitting the deposits, which further injured his ability to do

business and damaged his reputation. (Id. ¶ 12.)

Almost exactly four years later, on June 18, 2013, Mizell filed the instant

complaint in D.C. Superior Court. Based on the facts as alleged above, the complaint

identifies two discrete claims. The first is a defamation claim, based upon the

allegation that Defendant used the word “frozen” to describe the bank account to

Mizell’s various creditors, and thereby caused him significant injury. (Id. ¶ 14.) The

second is a claim for breach of contract, based upon the allegation that under the

contract between Mizell and SunTrust, the bank was required to notify Mizell prior to

closing the Travel Agency account. (Id.) Mizell seeks $500,000 in damages stemming

from these two claims. (Id. ¶ 15.)

On July 15, 2013, Defendant removed the case to this Court, basing the removal

on diversity between the parties pursuant to 28 U.S.C. § 1332. (Notice of Removal at

2.) Three days later, on July 18, 2013, Defendant filed a motion to dismiss, or in the

alternative, for summary judgment, under Federal Rule of Civil Procedure 12(b)(6),

arguing that the applicable statutes of limitation bars both of Mizell’s claims. (Def.’s

Mot. at 1-2.) On August 6, 2013, this Court issued an order to show cause why the case

should not be remanded to Superior Court, based upon the fact that Defendant’s Notice

of Removal had failed to establish adequately that the parties are indeed diverse,

because the Notice stated only that Mizell was a “resident” of the District of Columbia.

(Order to Show Cause, ECF No. 5, at 1.) Defendant responded to the Court’s order to

show cause on August 16, 2013, and Court issued an order discharging the order to

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show cause on August 21, 2013. (See Def.’s Response to Order to Show Cause, ECF

No. 6; Minute Order of August 21, 2013.) 1 Defendant subsequently filed an amended

Notice of Removal, which properly stated Mizell’s citizenship, on August 28, 2013.

(Amended Notice of Removal, ECF No. 11.) In the interim, however, Mizell filed his

own motion to remand the case to Superior Court, essentially arguing that allowing the

case to remain in federal court would unfairly prejudice him. (Pl.’s Mot. at 1.)

Consequently, there are two motions currently before the Court: Mizell’s motion to

remand and Defendant’s motion to dismiss the complaint, or in the alternative, motion

for summary judgment.

II. LEGAL STANDARDS

A. Motions To Remand

“Federal courts are courts of limited jurisdiction and, therefore, the law presumes

that “a cause lies outside of [the court’s] limited jurisdiction.” Busby v. Capital One,

N.A., 841 F. Supp. 2d 49, 52 (D.D.C. 2012) (quoting Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994).) Nonetheless, “[a] defendant may properly

remove a civil action from a state court when the federal district court has original

subject matter jurisdiction.” District of Columbia v. Grp. Hospitalization & Med.

Servs., Inc., 576 F. Supp. 2d 51, 53 (D.D.C. 2008); see also 28 U.S.C. § 1441. Among

other bases, federal district courts have original subject matter jurisdiction “over a case

when citizens of different states are involved and the amount in controversy exceeds

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In its response to the order to show cause, Defendant pointed out that the complaint itself identified

Mizell’s place of residence as the District of Columbia, as well as providing a District of Columbia

phone number for Mizell. Defendant also noted that Mizell’s publically available property tax records

indicate that he is a citizen of the District of Columbia. (Def.’s Response to Order to Show Cause, ECF

No. 6, at 2-4.) Mizell does not dispute these facts.

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$75,000.00 exclusive of interest and costs.” Nwachukwu v. Karl, 223 F. Supp. 2d 60,

65 (D.D.C. 2002); see also 28 U.S.C. § 1332.

When a plaintiff seeks to have a case that has been removed to federal court

remanded back to state court, “[t]he party opposing a motion to remand bears the

burden of establishing that subject matter jurisdiction exists in federal court.” Int’l

Union of Bricklayers & Allied Craftworkers v. Ins. Co. of the West, 366 F. Supp. 2d 33,

36 (D.D.C. 2005). Moreover, “[c]ourts must strictly construe removal statutes,” and

“must resolve any ambiguities concerning the propriety of removal in favor of remand.”

Busby, 841 F. Supp. 2d at 53.

B. Motions To Dismiss Pursuant To Federal Rule of Civil Procedure

12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to

dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can

be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint

must comply with Rule 8, which requires “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This requirement is

meant to “give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and citation omitted).

“Although ‘detailed factual allegations’ are not necessary to withstand a Rule

12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish ‘more

than labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action.’” Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 133 (D.D.C. 2013) (quoting

Twombly, 550 U.S. at 555). In other words, the plaintiff must provide “more than an

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unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “Mere conclusory statements” of misconduct are not enough to

make out a cause of action against a defendant. Id. Rather, a complaint must contain

sufficient factual allegations that, if true, “state a claim to relief that is plausible on its

face[,]” Twombly, 550 U.S. at 570, and “[a] claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged[,]” Iqbal, 556 U.S. at 678.

In deciding whether to grant a 12(b)(6) motion to dismiss, “[t]he court must view

the complaint in a light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations.” Busby, 932

F. Supp. 2d at 134 (citation omitted). But even so, the court “need not accept

inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in

the complaint[.]” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

Nor is the court “bound to accept as true a legal conclusion couched as a factual

allegation[.]” Twombly, 550 U.S. at 555 (citation omitted).

Moreover, while the pleadings of pro se parties are to be “liberally construed,

and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers[,]” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam) (internal quotation marks and citations omitted), “[t]his benefit

is not . . . a license to ignore the Federal Rules of Civil Procedure.” Sturdza v. United

Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation omitted). Rather,

“even though a pro se complaint must be construed liberally, the complaint must still

‘present a claim on which the Court can grant relief.’” Budik v. Dartmouth-Hitchcock

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Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (quoting Chandler v. Roche, 215 F.

Supp. 2d 166, 168 (D.D.C. 2002)); see also Moore v. Motz, 437 F. Supp. 2d 88, 90

(D.D.C. 2006) (noting that “[e]ven a pro se plaintiff’s inferences” need not be accepted

if they “are unsupported by the facts set out in the complaint” (citation omitted));

Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981) (same).

Finally, it is clear that “[a] defendant may raise the affirmative defense of statute

of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are

clear from the face of the complaint.” Derringer v. Emerson, 729 F. Supp. 2d 286, 289

(D.D.C. 2010) aff’d, 435 F. App’x 4 (D.C. Cir. 2011) (internal quotation marks and

citations omitted); see also Lewis v. Bayh, 577 F. Supp. 2d 47, 51 (D.D.C. 2008)

(same).

III. ANALYSIS

A. Mizell’s Motion To Remand This Case To Superior Court Must Be

Denied

The federal removal statute, 28 U.S.C. § 1441, provides that “any civil action

brought in a State court of which the district courts of the United States have original

jurisdiction[] may be removed by the defendant or the defendants, to the district court

of the United States for the district and division embracing the place where such action

is pending.” Through this statute, Congress has granted defendants the right to remove

state cases to federal district courts, provided that they demonstrate that the district

court would otherwise have had original jurisdiction over the matter. Notably, this is a

defendant’s clear prerogative: neither the state court nor the federal court has any

discretion or control over whether the case will be removed, so long as it meets the

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jurisdictional requirement. See, e.g., Martin v. Franklin Capital Corp., 546 U.S. 132,

137 (2005) (“[T]he removal statute grants defendants a right to a federal forum.”)

Here, Mizell’s motion to remand complains that as a pro se litigant lacking the

resources of his corporate adversary, he would be prejudiced by having the case go

forward in federal court, and asks this Court to remand his case on this basis. (Pl.’s

Mot. at 1.) But Mizell does not, and cannot, show that prejudice is part of the remand

analysis. Indeed, Mizell’s only recourse is to assert that Defendant is unable to meet

the jurisdictional threshold, but this he cannot do because Defendant has easily carried

that burden in this case. As noted above, the diversity jurisdiction statute provides that

“[t]he district courts shall have original jurisdiction of all civil actions where the matter

in controversy exceeds the sum or value of $75,000” and the parties are “citizens of

different States[.]” 28 U.S.C. § 1332. Here, in response to the order to show cause,

Defendant has already demonstrated to the Court’s satisfaction that diversity of

citizenship exists because Plaintiff is a citizen of the District of Columbia and

Defendant is a citizen of Georgia. (See Def.’s Response to Order to Show Cause, ECF

No. 6; see also Minute Order of August 21, 2013.) Moreover, Mizell’s complaint asks

for $500,000 in damages; thus, the amount-in-controversy requirement is satisfied.

(Compl. ¶ 15.) Finally, this Court notes that Mizell filed his complaint in Superior

Court on June 18, 2013, and Defendant filed its Notice of Removal in this Court on July

15, 2013, so the thirty-day statutory time limit applicable to the filing of a removal

notice in this case, see 28 U.S.C. § 1446(b), provides no basis for its remand.

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Based on this analysis, this Court concludes that Defendant has carried its

burden of demonstrating original diversity jurisdiction over this action pursuant to 28

U.S.C. § 1332. Consequently, Mizell’s motion to remand must be denied.

B. The Applicable Statutes Of Limitation Bar Mizell’s Claims

Defendant’s Rule 12(b)(6) motion to dismiss is predicated upon the argument

that Mizell’s claims the applicable statutes of limitations for defamation and breach of

contract under District of Columbia law bar Mizell’s claims in this case. (Def.’s Mem.

in Supp. of Mot. to Dismiss (“Def.’s Br.”), ECF No. 3-1, at 2-3.) For the reasons set

forth below, this Court agrees.

The District of Columbia provides a one-year statute of limitations for

defamation claims. D.C. Code § 12-301(4); see also Ray v. Olender, 13-cv-1834, 2013

WL 6124280, *1 (D.D.C. Nov. 21, 2013). “Defamation occurs on publication, and the

statute of limitations runs from the date of publication.” Owens v. District of Columbia,

631 F. Supp. 2d 48, 56 (D.D.C. 2009) (internal citations and quotation marks omitted).

Mizell’s defamation claim rests on Defendant’s alleged characterization of the bank

account as “frozen” in communications with Mizell’s creditors. (Compl. ¶ 14.) The

complaint indicates that Mizell was notified by his credit card company that his account

was “frozen” on June 19, 2009—almost four years to the day before Mizell filed his

complaint in this case, and far outside the applicable statute of limitations. (Compl.

¶ 7.) Accordingly, Mizell’s defamation claim is time barred.

The same is true of Mizell’s breach of contract claim. The applicable statute of

limitations for breach of contract in the District of Columbia is three years. D.C. Code

§ 12-301(7); see also LoPiccolo v. American University, 840 F. Supp. 2d 71, 77 (D.D.C.

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2012). Under D.C. law, “[a] cause of action for breach of contract accrues, and the

statute of limitations begins to run, at the time of the breach.” James v. Miche Bag

Corp., 11-cv-0963, 2013 WL 5346071 (D.D.C. Sept. 25, 2013). Here, Mizell’s breach

of contract claim is based on the fact that SunTrust failed to notify him when it closed

his account. (Compl. ¶ 14.) The complaint does not specify whether there was a

contractually mandated period of time within which SunTrust was obligated to inform

Mizell of the closure. However, it is clear from the complaint that the events in

question occurred at least as of June of 2009, and that Mizell was aware of the closing

of the account in that same time frame. (Compl. ¶¶ 4, 6-7, 12.) Accordingly, to comply

with the statute of limitations, Mizell was required to file his breach of contract

complaint by June of 2012, but he did not, in fact, file the complaint until a year later.

Mizell’s breach of contract claim is therefore also time barred. See, e.g., Yung v.

Institutional Trading Corp., 11-cv-0857, 2012 WL 893070 (D.D.C. Mar. 15, 2012)

(dismissing pro se breach of contract complaint for failure to comply with three-year

statute of limitations under D.C. law); Dasisa v. Univ. of D.C., 05-cv-1397, 2006 WL

949925 (D.D.C. Apr. 12, 2006) (same).

In his opposition to Defendant’s motion to dismiss, Mizell appears to argue that

some kind of equitable tolling of the statute of limitations should apply to his claims.

Specifically, the opposition states that Mizell “tried in good faith over a period of two

years, to reach some resolution to the crisis[.]” (Def.’s Opp. to Mot. to Dismiss, ECF

No. 7, at 3.) But, as a general matter, “a litigant seeking equitable tolling bears the

burden of establishing two elements: (1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,

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544 U.S. 408, 418 (2005). And, here, Mizell’s single statement suggesting a potential

reason for the tardy filing of his complaint is manifestly insufficient to provide grounds

for the equitable tolling of the relevant statutes of limitation. Indeed, the very fact that

Mizell eventually filed a complaint that, on its face, demonstrates that he has known

about the relevant facts since 2009, undermines his argument that equitable tolling is

appropriate here. See, e.g., Chung v. DOJ, 333 F.3d 273, 278 (D.C. Cir. 2003)

(equitable tolling applies when, “despite all due diligence,” a plaintiff is “unable to

obtain vital information bearing on the existence of his claim.”) (internal quotation

marks and citations omitted); Barbett v. Logistics Application, Inc., 845 F. Supp. 2d

164, 168 (D.D.C. 2012) (finding that equitable tolling was not applicable where

plaintiff knew that defendant had a role in causing the alleged injury).

IV. CONCLUSION

For the reasons set forth above, Mizell’s motion to remand is DENIED, and

Defendant’s motion to dismiss is GRANTED. Accordingly, as set forth in the

accompanying order, this case is dismissed in its entirety.

DATE: March 18, 2014 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge

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