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Bickerstaff v. Bickerstaff

United States District Court, E.D. Louisiana

August 25, 2017

LORETTA LOIS BICKERSTAFF APPEARING HEREIN THROUGH HER LEGALLY APPOINTED AGENT IN FACT AND MANDATARY, GERALD GREGORY BICKERSTAFF
v.
CAROLYN KRIDER BICKERSTAFF, ET AL.

         SECTION “R” (3)

          ORDER AND REASONS

          SARAH S. VANCE, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Carolyn Bickerstaff's motion to dismiss plaintiff's complaint. Because Plaintiff Loretta Bickerstaff lacks standing, the Court grants the motion.

         I. BACKGROUND

         This diversity action arises out of a dispute over the ownership of a beach house in Gulf Shores, Alabama.[1] Plaintiff Loretta Bickerstaff purchased the Alabama beach house in July 1993.[2] In February 2010, plaintiff granted her brother, Richard Bickerstaff, power of attorney, giving him management and control of her affairs.[3] In November 2010, an Assumption Warranty Deed was executed in Louisiana.[4] This deed appears to transfer ownership of the beach house from plaintiff to Richard Bickerstaff.[5] On May 16, 2014, plaintiff filed suit against Richard Bickerstaff in Louisiana state court challenging the validity of the transfer of ownership and requesting rescission of the Assumption Warranty Deed.[6] In July 2014, plaintiff filed a notice of lis pendens in Alabama probate court stating that she was contesting ownership of the beach house in Louisiana state court.[7]This litigation remains pending in Louisiana state court, and plaintiff has not yet secured judicial recognition of her ownership of the property.[8]

         The events that gave rise to this federal action occurred after plaintiff filed suit in state court. On May 23, 2014, Richard Bickerstaff executed a Second Mortgage on the Alabama beach house and named his wife, Defendant Carolyn Bickerstaff, as the mortgagee.[9] The Second Mortgage purportedly secured a debt of $241, 534 owed by Richard Bickerstaff to defendant.[10] Plaintiff alleges that the Second Mortgage is a sham and is part of a scheme by defendant to deprive plaintiff of her beach house.[11]

         On August 19, 2015, plaintiff, acting through her legally appointed agent in fact and mandatary Gerald Gregory Bickerstaff, brought suit in this Court alleging that defendant engaged in fraud and negligence in relation to the Second Mortgage.[12] Richard Bickerstaff is not a party to this federal litigation.[13] Plaintiff asks the Court to find the Second Mortgage legally invalid and order rescission of the transaction and cancellation of the mortgage from the public records.[14] Plaintiff also seeks damages and costs.[15]

         Defendant now moves to dismiss plaintiff's complaint, arguing that plaintiff lacks standing to seek rescission of the mortgage because she does not own the property.[16] Plaintiff opposes this motion.[17]

         II. LEGAL STANDARD

         A plaintiff must satisfy the standing requirements of Article III of the Constitution in order to establish the existence of an “actual case or controversy.” O'Shea v. Littleton, 414 U.S. 488, 493-94 (1974). A motion to dismiss for lack of standing therefore challenges the court's subject matter jurisdiction, and is governed by Federal Rule of Civil Procedure 12(b)(1).[18]As the party invoking federal jurisdiction, plaintiff bears the burden of establishing standing. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).

         When its subject matter jurisdiction is challenged, the Court first considers whether the defendant has made a “facial” or a “factual” attack upon the complaint. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In the case of a facial attack, the court “is required merely to look to the sufficiency of the allegations in the complaint because they are presumed to be true.” Id. When a defendant makes a factual attack on the complaint, however, the plaintiff is “required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.” Id.; see also Superior MRI Servs, Inc. v. Alliance Healthcare Servs, Inc., 778 F.3d 502, 504 (5th Cir. 2015). A court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).

         III. DISCUSSION

         Defendant's motion is a factual attack on plaintiff's complaint. A motion to dismiss for lack of standing is “‘factual' rather than ‘facial' if the defendant ‘submits affidavits, testimony, or other evidentiary materials.'” Superior MRI Servs, 778 F.3d at 504 (quoting Paterson, 644 F.2d at 523). Here, defendant submits property records in support of her contention that plaintiff does not own the beach house and lacks standing to seek rescission of the Second Mortgage.[19] See Id. (finding a factual attack on standing where defendant submitted official records). Moreover, plaintiff appears to treat the motion as a factual attack. Plaintiff's memorandum in opposition cites to affidavit and deposition testimony and attaches the notice of lis pendens as evidence of plaintiff's claim to the property.[20]

         Plaintiff bears the burden of showing by a preponderance of the evidence that she has standing in this matter. To establish standing, plaintiff must demonstrate that she (i) suffered an “injury in fact” that is (ii) “fairly traceable to the challenged conduct of the defendant” and (iii) it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable judicial decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted).

         Plaintiff asserts that she was injured by the defendant because the Second Mortgage on the beach house burdened her property with debt.[21]Defendant argues that plaintiff cannot establish injury from a loss of equity in property that she does not own and did not own when the mortgage was filed.[22] To satisfy standing requirements, plaintiff's injury must be “actual or imminent, not conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560. The “examination of whether a plaintiff has suffered a concrete injury” overlaps with the constitutional requirement that a case be sufficiently ripe for judicial consideration. See Texas v. United States,497 F.3d 491, 496 (5th Cir. 2007). If a “purported injury is contingent on future events that may not occur as anticipated, or indeed ...


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