Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duncan v. Fairbanks

United States District Court, E.D. Louisiana

May 6, 2015

JOHNNY DUNCAN,
v.
RICHARD FAIRBANKS, ET AL., Section

ORDER AND REASONS

ELDON E. FALLON, District Judge.

Before the Court is Defendants' motion to dismiss and Plaintiff's motion for summary judgment. (Rec. Docs. 11, 17). The Court has considered the parties' memoranda and the applicable law and now issues this order.

I. BACKGROUND

This case involves Plaintiff Johnny Duncan's claim for damages against his bank due to a late check sent from his account. Mr. Duncan is a customer of Capital One, N.A., ("Capital One") where he maintains a deposit account which has an online "bill payer" service. The bill payer service allows customers such as Mr. Duncan to have Capital One deliver bill payments from their accounts. Capital One explains that its bill payer service either transfers funds electronically or sends a physical check to the payee via mail. According to Capital One, its Online Banking Terms and Conditions provide that the customer is responsible for ensuring that bill payments are timely submitted to the payee.

On December 9, 2013, Mr. Duncan requested a bill payment to USAA for an insurance payment, with a scheduled payment date of December 12, 2013. Capital One mailed a physical check to USAA on December 12, 2013, which was received by USAA after December 12, 2013 and deposited by USAA on December 17, 2013. According to Mr. Duncan, the payment to USAA was late and caused USAA to initiate cancellation proceedings on Mr. Duncan's account, which he had held for many years.

Mr. Duncan brought this action pro se against Capital One, its parent entity, its affiliate, and parent CEO Richard Fairbank[1] (collectively, the "Capital One Defendants") alleging state breach of contract and tort claims, and federal claims under the Fourteenth Amendment and Civil Rights Act of 1866, on the theory that Capital One discriminated against him on the basis of race.

II. PRESENT MOTIONS

A. Motion to Dismiss

The Capital One Defendants now move to dismiss Mr. Duncan's claims under Rule 12 of the Federal Rules of Civil Procedure. (Rec. Doc. 11). First, they argue that Mr. Duncan has no contract with the parent, affiliate, or parent CEO, thus those claims should be dismissed. Second, they argue that all Mr. Duncan's claims should be dismissed for failure to state a claim because no breach of contract or tort occurred. Specifically, the Capital One Defendants argue that Capital One complied with its responsibilities under the bill payer program and mailed out the check on the date scheduled by Mr. Duncan. Moreover, they argue that the Online Banking Site, and the contract behind it, limits their liability here. Finally, they argue that Mr. Duncan has failed to state a civil rights claim, emphasizing that none of the Capital One Defendants even knew the race of Mr. Duncan.

Mr. Duncan opposes dismissal and requests summary judgment in his favor in the alternative. (Rec. Doc. 12). Mr. Duncan re-asserts that the Capital One Defendants are at fault for the late payment, argues that Capital One scheduled the payment, and that his loan documentation demonstrated his race to Capital One.

The Capital One Defendants reply, by leave of Court. (Rec. Doc. 14), rebutting Mr. Duncan's arguments and noting that regardless of whether Mr. Duncan's loan documentation contained information about his race, there is still no plausible basis that his race played any role in the handling of his online bill payment transaction.

B. Motion for summary judgment

Mr. Duncan also moves for summary judgment.[2] His summary judgment motion is premature, as the case is only at the Rule 12(b) stage. Therefore, the Court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.