United States District Court, E.D. Louisiana
WENCELAUS PROVOST, JR.
FIRST GUARANTY BANK, ET AL.
ORDER AND REASONS
JAY C. ZAINEY, UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss (Rec. Doc.
45) filed by Defendants, First Guaranty Bank and
Glenn Duhon (hereinafter collectively referred to as
“Defendants”). Plaintiff Wencelaus Provost, Jr.
opposes the motion (Rec. Doc. 46). The motion, set for
submission on June 26, 2019, is before the Court on the
briefs. Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds
that Defendants' motion should be DENIED
in part and GRANTED in part for the reasons
set forth below.
2008 to 2015, Wencelaus Provost applied for various crop
loans from First Guaranty Bank to finance the operation of
his sugarcane farm. (Rec. Doc. 40 Second Amended Complaint,
¶ 34). Plaintiff brought the instant suit alleging that
the Defendants' misconduct dating back to 2007 resulted
in the 2015 foreclosure of his farm. (Id. at 120).
Plaintiff pleads that Defendants committed various acts of
misconduct as a result of racial discrimination in violation
of the Equal Credit Opportunity Act (“ECOA”).
(Id. at 136-145). Plaintiff also asserts claims
pursuant to the Racketeer Influence and Corrupt Organizations
Act (“RICO”) and Louisiana state law for unjust
enrichment. (Id. at 146-175). Defendants now request
this Court to dismiss Plaintiff's ECOA and RICO claims
for the failure to state a claim upon which relief can be
granted, Federal Rule of Civil Procedure 12(b)(6).
central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief. Gentilello v.
Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe
v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)). To
avoid dismissal, a plaintiff must plead sufficient facts to
“state a claim for relief that is plausible on its
face.” Id. (quoting Iqbal, 129 S.Ct.
at 1949). “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.” Id. The Court
does not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.”
Id. (quoting Plotkin v. IP Axess, Inc., 407
F.3d 690, 696 (5th Cir. 2005)). Legal conclusions must be
supported by factual allegations. Id. (quoting
Iqbal, 129 S.Ct. at 1950).
context of a motion to dismiss the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232
(5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308 (2007); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Lovick v.
Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)).
However, the foregoing tenet is inapplicable to legal
conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009). Thread-bare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice. Id. (citing Bell Atlantic Corp. v.
Twombly, 550, U.S. 544, 555 (2007)).
argue that Provost's RICO claims should be dismissed
because the claims are (1) time barred as a matter of law,
and (2) Provost fails to demonstrate the requisite element
that the actions of the alleged RICO “person” are
distinguishable from the actions of the alleged
“enterprise” defendant. Defendants also argue
that Provost's ECOA claims dating prior to September 21,
2013, should be dismissed because they are time barred. (Rec.
Doc. 45-1, p. 2).
RICO Statute of Limitations
lacks an express statute of limitations; therefore, the U.S.
Supreme Court established that the civil enforcement
provision is subject to a four-year statute of limitations.
Agency Holding Corp. v. Malley-Duff & Associates,
Inc., 483 U.S. 143, 152, 107 S.Ct. 2759, 2765, 97
L.Ed.2d 121 (1987). Fifth Circuit precedent adopts the
“injury discovery rule” under which “a
civil RICO claim accrues when the plaintiff discovers, or
should have discovered, the injury.” Joseph v. Bach
& Wasserman, LLC., 487 Appx. 173, 176 (5th Cir.
2012)(quoting Love v. Nat'l Med. Enters., 230
F.3d 765, 773 (5th Cir. 2000)).
argue that Provost fails to state a RICO claim upon which
relief can be granted because his RICO claims are time
barred. (Rec. Doc. 45-1, p. 3). Defendants assert that
Provost discovered or should have discovered his alleged
injuries in 2008. (Id.). Specifically, Defendants
cite allegations in the Second Amended Complaint that the
reduced size of the farm, the farm's substantially less
profit, and Plaintiff's outstanding loan balance
demonstrated that Provost knew or should have known by the
end of 2008 that Defendants were fraudulently manipulating
Provost's crop loan applications and awards.
(Id. at 4). Defendants also cite the Second Amended
Complaint and Provost's allegations regarding the
unreasonable and onerous requirements on his 2008 application
for a crop loan and First Guaranty Bank's withdrawal from
the 2009 crop loan. (Id.).
opposes the motion on two grounds: the doctrine of fraudulent
concealment and the separate accrual rule. The doctrine of
fraudulent concealment provides that “the limitations
period is tolled until the plaintiff discovers, or with
reasonable diligence should have discovered, the concealed
fraud.” Joseph, 487 Appx. at 177 (quoting
Love, 230 F.3d at 779). “Generally, 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 circumstances
stood in his way.” Credit Suisse Securities (USA)
LLC v. Simmonds,566 U.S. 221, 227, 132 S.Ct. 1414,
1419, 182 L.Ed.2d 446 (2012)(quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161
L.Ed.2d 669 (2005)). Fraudulent concealment ...