Ezell et al v. Payne et al

MOTION to Dismiss For Failure to State a Claim

W.D. La.August 22, 2016

740977.1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION JAMES AND SONIA EZELL CIVIL ACTION NO. 16-cv-01166 VERSUS JUDGE JAMES ANGELA RUTH PAYNE, ET AL MAGISTRATE JUDGE HAYES MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) AND 9(b) Defendants Angela Ruth Payne, Charlotte Russ and Tod C. Sylvester move to dismiss the petition filed by Plaintiffs James and Sonia Ezell with prejudice and at Plaintiffs’ costs. Plaintiffs have not stated a claim for relief against the Defendants, they have failed to plead fraud with particularity and their claims are prescribed. Under any scenario, Plaintiffs’ Petition should be dismissed with prejudice. 1. On May 6, 2016, Plaintiffs, non-Louisiana residents, filed their Petition against Angela Ruth Payne, Charlotte Russ, Todd C. Sylvester and Shillen (sic) Johnson1 asserting that these individuals defrauded Plaintiffs out of their property by creating fraudulent documents.2 Plaintiffs assert that all four defendants were employees of JPMorgan Chase Bank, National Association, in Monroe, Louisiana, and through their employment caused fraudulent documents to be filed with the Office of the Clerk for Monmouth County New Jersey.3 The alleged 1 Ms. Johnson has not been served and has not made an appearance in this matter. 2 Petition, ¶ 2. 3 Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶ 2, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶ 2. Case 3:16-cv-01166-RGJ-KLH Document 5 Filed 08/22/16 Page 1 of 7 PageID #: 331 740977.1 2 fraudulent documents at issue are two assignments of mortgage.4 The mortgage is a New Jersey mortgage which encumbers property located in Monmouth County, New Jersey.5 2. In response to the Petition, defendants Angela Ruth Payne, Charlotte Russ and Todd C. Sylvester filed state court Exceptions of Lack of Subject Matter Jurisdiction, No Right of Action, No Cause of Action, Prescription and Alternative Motion to Dismiss for Nonconformity with Article 891 and Exception of Vagueness. In oppositi n o the Defendants’ exceptions, Plaintiffs filed a Rule to Show Cause and Brief in Opposition of Defendant’s (sic) Motion to Dismiss, and In Support of Plaintiff’s Rule to Show Cause. For the first time, Plaintiffs asserted that the Defendants’ actions violated federal law. Plaintiffs asserted that the actions of the notary publics, Angela Ruth Payne and Todd C. Sylvester, constituted a deprivation of Plaintiffs’ civil rights under the equal protection and due process clauses of the U.S. Constitution. Plaintiffs also allege that the assignments executed by the Def ndants violated the National Stolen Property Act, 18 U.S.C. § 2314 and 18 U.S.C. § 1342. Plaintiffs also vaguely reference 42 U.S.C. § 1981 and the First, Fourth, Thirteenth and Fourteenth Amendments of the U.S. Constitution. 4 Certified copies of the Assignments of Mortgage ar ttached as Exhibits A and B. In considering a Rule 12(b)(6) motion it is proper to take judicial notice of matters of public record. Hall v. Hodgkins, 2008 WL 5352000,* 3 (5th Cir. Dec. 23, 2008). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cnnot reasonably be questioned.” Fed.R.Evid. 201(b). The Assignments of Mortgage are certified copies obtained from the Monmouth County New Jersey Clerk of Court. 5 Id. Case 3:16-cv-01166-RGJ-KLH Document 5 Filed 08/22/16 Page 2 of 7 PageID #: 332 740977.1 3 3. Based on the allegations of federal claims, Defendants removed the suit to this Court and now seek dismissal of all claims asserted by the Plaintiffs. 4. Plaintiffs assert that the assignments from the FDIC-R to JPMC and from JPMC to PennyMac are invalid. Plaintiffs are not parties to the assignments.6 They are third parties to the assignments and, therefore, have no right to assert claims concerning these contracts to which they are not a party. 5. Plaintiffs likewise are not third party beneficiaries of the assignments. The assignments confirm that there is no stipulation for the benefit of Plaintiffs and any benefit Plaintiffs may have received was merely incidental to the assignments. 6. Accordingly, Plaintiffs have no claim for relief tocontest the assignments from FDIC-R to JPMC and from JPMC to PennyMac. 7. Plaintiffs’ Petition should also be dismissed with prejudice because Plaintiffs failed to state a claim for relief under La. R.S. 14:12, La. R.S. 14:26, La. R.S. 14:72.2, 18 U.S.C. § 2314 6 See Exhibits A and B. Case 3:16-cv-01166-RGJ-KLH Document 5 Filed 08/22/16 Page 3 of 7 PageID #: 333 740977.1 4 or 18 U.S.C. § 1342. These statutes are criminal statues for which there is no private right of action. 8. Plaintiffs assert that the Defendants actions were done in conspiracy with third parties to assist the third parties attempt to steal monies or real property belonging to Plaintiffs.7 Louisiana does not recognize a cause of action to commit conspiracy. Rather, La. Civ. Code art. 2324(A) provides that he who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. The actionable element in a claim under La. Civ. Code art. 2324 is not the conspiracy itself, but rather the tort which the conspirators agreed to perpetrate and which t ey actually commit. Ross v. Conoco, Inc. 2002-0299 (La.10/15/02), 828 So.2d 546, 552. 9. Because Plaintiffs have not alleged that an actual conversion took place, they have not stated a cause of action for conversion and, therefore, have not stated a cause of action for conspiracy. 10. Plaintiffs’ purported claims under 42 U.S.C. § 1981 should be dismissed because Plaintiffs have not alleged that they are a member of a racial minority, that any of the Defendants 7 Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶7, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶8. Case 3:16-cv-01166-RGJ-KLH Document 5 Filed 08/22/16 Page 4 of 7 PageID #: 334 740977.1 5 had the intent to discriminate against them because of race, or that discrimination concerned one or more of the activities enumerated in Section 1981. 11. Plaintiffs’ purported claims under the First, Fourth and Fourteenth Amendments should be dismissed because none of the Defendants are “stt actors” subject to potential liability under these constitutional amendments. 12. Plaintiffs’ purported claims under the Thirteenth Amendment should be dismissed because (1) the Thirteenth Amendment does not provide a private right of action and (2) Plaintiffs’ have asserted no allegations amounting to forced labor. 13. To the extent Plaintiffs are asserting a separate cl im for fraud, Plaintiffs’ petition must be dismissed under Fed. R. Civ. P. 9(b) because they have not alleged fraud with particularity. 14. If the court determines that Plaintiffs have a right of action against the Defendants and have stated valid causes of action (which is denied), Plaintiffs’ Petition must be dismissed with prejudice because Plaintiffs’ claims are prescribed. 15. La. R.S. 35:200 provides that an action for damages against any notary public duly commissioned in this state arising out of an engagement to provide notarial services shall be Case 3:16-cv-01166-RGJ-KLH Document 5 Filed 08/22/16 Page 5 of 7 PageID #: 335 740977.1 6 brought within one year of the date of the alleged act or within one year from the date the alleged act is discovered or should have been discovered. La. R.S. 35:200(A). 16. Plaintiffs allegations of fraud and conspiracy are lso subject to a one year prescriptive period. See Johnson v. Hardy, 98-2282 (La. App. 1 Cir. 1/5/99), 756 So.2d 328 (claim for conversion of property is subject to a one-year prescriptive period); Southern v. Bank One of Louisiana, N.A., 32,105 (La. App. 2 Cir. 8/18/99), 740 So.2d 775 (action for damage caused by fraud sound in tort). Similarly, Plaintiffs’ alleged constitutional violations are subject to Louisiana’s one-year prescriptive period. Detro v. Roemer, 739 F.Supp. 303 (E.D. La. 1990)(applying one-year prescriptive period to claims under the Fourth, Fifth, Sixth and Fourteenth Amendments); Vandenweghe v. Jefferson Parish, 2012 WL 1825300 (E.D. La. May 18, 2012)(applying Louisiana’s one-year prescriptive period to First Amendment claim). 17. The assignment from the FDIC-R to JPMC was executed on April 18, 2014 and recorded on May 8, 2014.8 The assignment from JPMC to PennyMac was executed on October 8, 2014 and recorded on March 1, 2015.9 Plaintiffs filed suit on May 6, 2016, more than oe year after the assignments were executed and recorded. Since this suit was filed more than one year after those dates, Plaintiffs’ claims are prescribed. 8 Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶1; Exhibit A. 9 Petition at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johns n, ¶1; Exhibit B. Case 3:16-cv-01166-RGJ-KLH Document 5 Filed 08/22/16 Page 6 of 7 PageID #: 336 740977.1 7 WHEREFORE, Defendants Angela Ruth Payne, Charlotte Russ and Todd C. Sylvester, pray that their motion be granted and that Plaintiffs’ Petition be dismissed with prejudice and at Plaintiffs’ costs. Respectfully submitted, /s/ Amanda S. Stout MICHAEL D. FERACHI, (Bar No. 19566), T.A. AMANDA S. STOUT (Bar No. 29001) McGlinchey Stafford, PLLC 301 Main Street, 14th Floor Baton Rouge, Louisiana 70801 Telephone: (225) 383-9000 Telecopier: (225) 343-3076 ATTORNEYS FOR ANGELA RUTH PAYNE, CHARLOTTE RUSS AND TODD C. SYLVESTER CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoin has been served upon the plaintiffs by electronic mail and by depositing same in the U.S. Mail, postage prepaid and properly addressed: James and Sonia Ezell 361 Starling Dr. Grove Hill, AL 36451 soniaezell@yahoo.com Baton Rouge, Louisiana, this 22nd day of August, 2016. /s/ Amanda S. Stout Amanda S. Stout Case 3:16-cv-01166-RGJ-KLH Document 5 Filed 08/22/16 Page 7 of 7 PageID #: 337 738019.1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION JAMES AND SONIA EZELL CIVIL ACTION NO. 16-cv-0116 6 VERSUS JUDGE JAMES ANGELA RUTH PAYNE, ET AL MAGISTRATE JUDGE HAYES MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) AND 9(b) Defendants Angela Ruth Payne, Charlotte Russ and Tod C. Sylvester move to dismiss the petition filed by Plaintiffs James and Sonia Ezell with prejudice and at Plaintiffs’ costs. Plaintiffs have not stated a claim for relief against the Defendants, they have failed to plead fraud with particularity and their claims are prescribed. Under any scenario, Plaintiffs’ Petition should be dismissed with prejudice. I. BACKGROUND On May 6, 2016, Plaintiffs, non-Louisiana residents, filed their Petition against Angela Ruth Payne, Charlotte Russ, Todd C. Sylvester and Shillen (sic) Johnson1 asserting that these individuals defrauded Plaintiffs out of their property by creating fraudulent documents.2 Plaintiffs assert that all four defendants were employees of JPMorgan Chase Bank, National Association, in Monroe, Louisiana, and through their employment caused fraudulent documents 1 Ms. Johnson has not been served and has not made an appearance in this matter. 2 Rec. Doc. 1-1 - Petition, ¶ 2. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 1 of 25 PageID #: 338 738019.1 2 to be filed with the Office of the Clerk for Monmouth County New Jersey.3 The alleged fraudulent documents at issue are two assignments of mortgage.4 The mortgage is a New Jersey mortgage which encumbers property located in Monmouth County, New Jersey.5 A. April 18, 2014 Assignment from the FDIC-R to JPMC The first assignment is an April 18, 2014 assignme t by the Federal Deposit Insurance Corporation as Receiver of Washington Mutual Bank, FA (FDIC-R) to JPMorgan Chase Bank, National Association (JPMC).6 Through this assignment, the FDIC-R assigned Plaintiffs’ mortgage to JPMC.7 The assignment was executed by Charlotte Russ as Vice President for JPMC as attorney in fact for the FDIC-R.8 Ms. Russ executed the assignment before Ms. Payne, a Notary Public with jurisdiction in Ouachita Parish.9 Mr. Ezell makes several arguments in his affidavit as to why this assignment is fraudulent:10 3 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶ 2, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶ 2. 4 Certified copies of the Assignments of Mortgage ar ttached as Exhibits A and B. In considering a Rule 12(b)(6) motion it is proper to take judicial notice of matters of public record. Hall v. Hodgkins, 2008 WL 5352000,* 3 (5th Cir. Dec. 23, 2008). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cnnot reasonably be questioned.” Fed.R.Evid. 201(b). The Assignments of Mortgage are certified copies obtained from the Monmouth County New Jersey Clerk of Court. 5 Id. 6 Rec Doc. 1-1 - Petition, at James Ezell’s affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶ 2; Exhibit A - New Jersey Assignment of Mortgage (April 18, 2014). 7 Rec Doc. 1-1 - Petition, at James Ezell’s affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶¶ 2 and 5; Exhibit A. 8 Rec Doc. 1-1 - Petition, at James Ezell’s affidavt regarding Angela Ruth Payne and Charlotte Russ,¶ 2; Exhibit A. 9 Rec Doc. 1-1 - Petition, at James Ezell’s affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶¶ 2-3; Exhibit A. 10 See generally Rec Doc. 1-1 - Petition, at James Ezll’s affidavit regarding Angela Ruth Payne and Charlotte Russ. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 2 of 25 PageID #: 339 738019.1 3 1. Ms. Russ did not appear before Ms. Payne as Vice-President of JPMC and attorney in fact for the FDIC-R because none of Washington Mutual’s mortgage loans were received by the FDIC as of September 25, 2008. 2. JPMC was not the attorney in fact for the FDIC-R on April 18, 2014. 3. Ms. Russ had no knowledge as to the whereabouts, pos ession or ownership of Plaintiffs’ November 18, 2003 mortgage loan with Washington Mutual. 4. Ms. Payne, as a notary public and JPMC employee, knw or should have known that Ms. Russ has never been a Vice-President of JPMC. 5. Ms. Russ and Ms. Payne conspired with Nationwide Title Clearing, Inc. and JPMC to assist JPMC’s attempt to steal money or real property from Mr. Ezell. 6. Ms. Russ’ actions were in violation of La. R.S. 14:12, La. R.S. 14:26 and La. R.S. 14:72.2. 7. Ms. Payne’s actions were in violation of R.S. 35:601, La. R.S. 14:12, La. R.S. 14:26, and La. R.S. 14:72.2. B. October 8, 2014 Assignment from JPMC to PennyMac The second assignment at issue is an assignment execut d on October 8, 2014, whereby JPMC assigned the mortgage to PennyMac Corp.11 The assignment was executed by Shillem Johnson as Vice-President of JPMC.12 Mr. Johnson executed the assignment before Todd Sylvester, a Notary Public with jurisdiction in Ouachita Parish.13 11 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶ 2; Exhibit B - New Jersey Assignment of M rtgage (October 8, 2014). 12 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶ 2; Exhibit B. 13 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶¶ 2 and 5; Exhibit B. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 3 of 25 PageID #: 340 738019.1 4 Mr. Ezell asserts the same arguments against Ms. Johnson and Mr. Sylvester as made against Ms. Payne and Ms. Russ:14 1. Ms. Johnson did not appear before Mr. Sylvester as Vice-President of JPMC because none of Washington Mutual’s mortgage loans were received by the FDIC as of September 25, 2008 and, therefore, the FDIC-R could not have assigned the mortgage to JPMC on April 18, 2014. 2. JPMC was not the attorney in fact for the FDIC-R on April 18, 2014. 3. Ms. Johnson had no knowledge as to the whereabouts, pos ession or ownership of Plaintiffs’ November 18, 2003 mortgage loan with Washington Mutual. 4. Mr. Sylvester, as a notary public and JPMC employee, knew or should have known that Ms. Johnson has never been a Vice-President of JPMC. 5. Ms. Johnson and Mr. Sylvester conspired with the Law Office of Adam W. Scheinbach, Zuker Goldberg & Ackerman, LLC, JPMC and Penny Mac to assist JPMC and PennyMac’s attempt to steal money or real property from Mr. Ezell. 6. Ms. Johnson’s actions were in violation of La. R.S. 14:12, La. R.S. 14:26 and La. R.S. 14:72.2. 7. Mr. Sylvester’s actions were in violation of R.S. 35:601, La. R.S. 14:12, La. R.S. 14:26, and La. R.S. 14:72.2. C. State Court Filings Leading to Removal In response to the Petition, defendants Angela Ruth Payne, Charlotte Russ and Todd C. Sylvester filed Exceptions of Lack of Subject Matter Jurisdiction, No Right of Action, No Cause of Action, Prescription and Alternative Motion to Dismiss for Nonconformity with Article 891 and Exception of Vagueness. In opposition to the Defendants’ exceptions, Plaintiffs filed a Rule to Show Cause and Brief in Opposition of Defendant’s (sic) Motion to Dismiss, and In Support 14 See generally, Rec Doc. 1-1 - Petition, at James Ez ll affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 4 of 25 PageID #: 341 738019.1 5 of Plaintiff’s Rule to Show Cause. For the first time, Plaintiffs asserted that the Defendants’ actions violated federal law. Plaintiffs asserted hat the actions of the notary publics, Angela Ruth Payne and Todd C. Sylvester, constituted a deprivation of Plaintiffs’ civil rights under the equal protection and due process clauses of the U.S. Constitution.15 Plaintiffs also allege that the assignments executed by the Defendants violated the National Stolen Property Act, 18 U.S.C. § 231416 and 18 U.S.C. § 1342.17 Plaintiffs also vaguely reference 42 U.S.C. § 1981 and the First, Fourth, Thirteenth and Fourteenth Amendments of the U.S. Constitution.18 II. RULE 12(B)(6) STANDARD A district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted, if the plaintiff has not set forth a factual allegation in support of his claim that would entitle him to relief. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)). While detaild factual allegations are not required, they “must be enough to raise a right to relief above the speculative level.” Twombly, 127 S.Ct. at 1964-1965. Moreover, a plaintiff’s entitlement to relief requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citations omitted). “Determining whether a complaint states a pl usible claim for relief will. . .be a context-specific task that requires the reviewing court to draw on its judicial experience and 15 Rec Doc 1-1, at Plaintiff’s Rule to Show Cause, p. 17. 16 Id., at p. 17. 17 Id., at p. 25. 18 Id., at p. 16. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 5 of 25 PageID #: 342 738019.1 6 common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “But where the well-plead d facts do not permit the court to infer more than mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the plead r is entitled to relief.’” Id., citing Fed. R. Civ. P. 8(a)(2). Further, Fed. R. Civ. P. 9(b)’s heightened pleading standard applies to Plaintiffs’ allegations of fraud. III. PLAINTIFFS DO NOT HAVE STANDING TO CONTEST THE ASSI GNMENTS In this case, Plaintiffs assert that the assignments from the FDIC-R to JPMC and from JPMC to PennyMac are invalid. Plaintiffs are not parties to the assignments.19 They are third parties to the assignments and, therefore, have no right to assert claims concerning these contracts to which they are not a party. HMC Management Corp. v. New Orleans Basketball Club, 375 So.2d 700 (1979) (third parties to lease agreement had no right of action under lease agreement to which they were not a party); English v. Fed. Nat. Mortg. Ass’n, 2013 WL 6188572 (D. N.J. 2013) (In the context of a mortgage assignme t, a mortgagor, or borrower, does not have standing to allege that an assignment between two parties is invalid, citing Grullon v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 48394 (D.N.J. Mar. 28, 2013) and Schiano v. MBNA, No. 05- 171, 2013 WL 2452681, at *26 (D.N.J. Feb. 11, 2013)); see also Correll v. Bank of Am., N.A, 2012 WL 348594, at *4 (E.D.Va. Feb. 2, 2012) (“Courts have also uniformly rejected the contention that individuals have a right to sue as third-party beneficiaries to contracts between mortgage providers and Fannie Mae. Homeowners are me ly incidental beneficiaries with no cognizable property interest in loan modifications.”) (internal quotations and citations omitted); 19 See Exhibits A and B. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 6 of 25 PageID #: 343 738019.1 7 Condel v. Bank of Am., N.A., 2012 WL 2673167, at *6 (E.D.Va. July 5, 2012) (“Courts have also flatly rejected attempts by borrowers to assert contract claims as incidental beneficiaries of servicers' agreements with the government.”) (internal citations and quotations omitted); Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir.1977) (rejecting borrower’s claim that he was a third-party beneficiary of HUD handbook which established guidelines for servicers of HUD mortgages; borrower was, at most, an incidental beneficiary who had no cause of action). Plaintiffs likewise are not third party beneficiaries of the assignments. The Louisiana Supreme Court has recognized three criteria for determining whether contracting parties have provided a benefit for a third party stating: “1) the stipulation for a third party is manifestly clear; 2) there is certainty as to the benefit provided the t ird party; and 3) the benefit is not a mere incident of the contract between the promisor and the promisee. In applying these criteria, we ultimately rely on the words of Article 1978 that the contract must ‘stipulate a benefit for a third person’.” Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 2005-2364, p. 7 (La. 10/15/06), 939 So.2d 1206, 1212. The assignments confirm that there is no stipulation for the benefit of Plaintiffs and any benefit Plaintiffs may have received was merely incidental to the assignments. Therefore, Plaintiffs have not stated claim to contest the assignments from FDIC- R to JPMC and from JPMC to PennyMac. Their Petition should be dismissed with prejudice. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 7 of 25 PageID #: 344 738019.1 8 IV. PLAINTIFFS HAVE NOT STATED A CLAIM UNDER THE REFERE NCED CRIMINAL STATUTES Plaintiffs assert that each Defendant violated La. R.S. 14:12, La. R.S. 14:26, and La. R.S. 14:72.2 and, therefore, is liable to Plaintiffs.20 Plaintiffs also assert that Ms. Payne and Mr. Sylvester, the notaries public, are liable under La. R.S 35:601.21 In their opposition to Defendants’ state court exceptions, Plaintiffs apper to assert that the Defendants violated 18 U.S.C. § 2314, and that defendants Charlotte Russ and Shillem Johnson violated 18 U.S.C. § 1342 by executing the assignments.22 Plaintiffs have not stated a claim against the Defendants under the statutes because these statutes are criminal statutes and may only be enforced by the district attorney or United States Attorney and there is no basis to find an implied cause of action. A. Louisiana criminal statute may only be enforced by the district attorney La. R.S. 14:12 provides the elements of criminal neglig nce: “Criminal negligence exists when, although neither specific nor general criminal tent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” Similarly, La. R.S. 14:26 provides the elements of and penalties for criminal conspiracy. 20 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶¶8-9, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶¶9-10. 21 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶9, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶10. 22 Rec Doc. 1-1 - Brief in Opposition to Defendant’s (sic) Motion to Dismiss, and in support of Plaintiff’s Rule to Show Cause, pp. 17 and 25. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 8 of 25 PageID #: 345 738019.1 9 La. R.S. 14:72.2 makes it a crime to make, issue, possess, sell or otherwise transfer a counterfeit or forged monetary instrument with the intent to deceive another person. It also provides the penalties for such offense. While the Louisiana criminal code does not affect any civil remedy provided by the law pertaining to civil matters, it is clear that conduct which is made criminal under Title 14 is prosecuted by the district attorney. La. R.S. 14:4 and 14:6; La. C. Cr. P. 61. “Our law prohibits private citizens from instituting criminal prosecutions. Only the district attorney is authorized to do so.” Deville v. Frazier, 476 So.2d 1051, 1053 (La. App. 3 Cir. 1985) (granting exception of no cause of action and dismissing petition which asserted that the defendant was liable for contributing to the delinquency of a minor, La. R.S. 14:92, and breach of the peace, La. R.S. 14:103). La. R.S. 35:601, while not found in the Louisiana Criminal Code, is likewise a criminal statute. This statute provides that it is unlawful for a person who has not been duly authorized to exercise notarial powers or whose authority to exercis notarial powers has been judicially revoked to act as a notary. Any person who violates La. R.S 35:601 is subject to fines and/or imprisonment. La. R.S. 35:601(B)(1). Further, La. R S. 35:603 makes it clear that the prosecution of violations of La. R.S. 35:601 are handled by the appropriate law enforcement agency and district attorney. La. R.S. 35:603(B). Since La. R.S. 35:601 is a criminal statute, Plaintiffs have not stated a claim against Ms. Payne or Mr. Sylvester. See Fontenot v. Manpower [Motivation], Educ. and Training, Inc., 594 So.2d 998 (La. App. 3 Cir. 1992) (granting exception of no cause of action because employer’s alleged violation of La. R.S. 23:1691, a Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 9 of 25 PageID #: 346 738019.1 10 criminal statute governing discrimination on account of claiming workers’ compensation benefits, because the statute provided no civil remedy). B. No implied civil cause of action under the federal criminal statutes Plaintiffs also reference two federal criminal statu es in attempting to assert a claim against the Defendants. 18 U.S.C. § 2314 makes it a crime to transport, transmit, or transfer in interstate or foreign commerce any good, ware, merchandise, security or money having a value of $5,000 or more with the knowledge that the item is stolen, converted or taken by fraud, and other related activities. Persons who violate thisstatute are subject to fines or imprisonment, or both. 18 U.S.C. § 1342 provides that “[w]hoever, fo the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title [18 USCS § 1341] or any other unlawful bsiness, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name, or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be fined under this title or imprisoned not more than five years, or both.” “In order for a private right of action to exist under a criminal statute, there must be a ‘statutory basis for inferring that a civil cause of action of some sort lay in favor of someone.’” Parker v. Shemwell, 2009 WL 211708, * 1 (citing Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)). There is no statutory basis for implying a private right of action under 18 USC § 2314 or 18 USC. § 1342. See Riley v. Fidelity Information Services, 2015 WL 5530176 Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 10 of 25 PageID #: 347 738019.1 11 (D. S.C. Sept. 17, 2015)(claim pursuant to 18 U.S.C. § 2314 does not give rise to an independent, private cause of action); Crawford v. Adair, 2008 WL 2952488 (E.D. Va. July 29, 2008)(18 U.S.C. § 2314 is a criminal statute that does not pr vide a private cause of action); Stone v. Washington Mut. Bank, 2011 WL 3678838 (N.D. Ill. Aug. 19, 2011)(finding that 18 U.S.C. § 2314 clearly does not provide for a private right of action in suit where plaintiffs alleged the foreclosure actions were fraudulent because the defn ant banks bifurcated the loans by selling the mortgage notes to other entities); Lilley v. JPMorgan Chase Bank, 2010 WL 4392561, * 4 (D. Utah Oct. 28, 2010)(“The law is clear, no private right of action exists under 18 U.S.C. § 1342.”); Hofelich v. Hawaii, 2011 WL 2117013, fn. 4 (D. Hawaii May 25, 2011)(“8 U.S.C. § 1342 is a criminal statute which Plaintiff may not set forth in this civil action.”); Cook v. Unisys Fed. Govt. Group, 2015 WL 5690928 (W.D. Va. Sept. 3, 2015)(no private right of action exists under 18 U.S.C. § 1342 ). Just as Plaintiffs, as private citizens, are prohibited from prosecuting violations of Louisiana’s criminal statutes, Plaintiffs are likewise prohibited from prosecuting violations of these federal criminal statutes. See Lewis v. Jindal, 2009 WL 2849592 (M.D. La. Sept. 2, 2009)(Plaintiffs as private citizens do not have a constitutional right to commence criminal proceedings. Instead, that decision is left to the discretion of the prosecutorial authority.); Brumbaugh v. Rehnquist, 2001 WL 376477 (N.D. Tex. Apr. 13, 2001); United States v. Panza, 381 F.Supp. 133 (W.D. Penn. 1974). Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 11 of 25 PageID #: 348 738019.1 12 Plaintiffs, as private citizens, can state no private claim against the Defendants under La. R.S. 14:12, La. R.S. 14:26, La. R.S. 14:72.2, La. R.S. 35:601, 18 U.S.C. § 2314, or 18 U.S.C. § 1342. Accordingly, the Plaintiffs’ petition must be dismissed with prejudice. V. CLAIM FOR ATTEMPTED CONSPIRACY TO COMMIT CONVERSION DOES NOT EXIST Plaintiffs assert that the Defendants actions were done in conspiracy with third parties to assist the third parties attempt to steal monies or real property belonging to Plaintiffs.23 Louisiana does not recognize a cause of action to commit conspiracy. Rather, La. Civ. Code art. 2324(A) provides that he who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. The actionable element in a claim under La. Civ. Code art. 2324 is not the conspiracy itself, but rather the tort which the conspirators agreed to perpetrate and which t ey actually commit. Ross v. Conoco, Inc. 2002-0299 (La.10/15/02), 828 So.2d 546, 552. A conversion is an act in derogation of the plaintiff's possessory rights and any wrongful exercise or assumption of authority over another's goods, depriving him of the possession, permanently or for an indefinite time. Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756, 760 (La. 1985). A conversion is committed when any of the following occurs: (1) possession is acquired in an unauthorized manner; (2) the chattel is removed from one place to another with the intent to exercise control over it; (3) possession of the chattel is transferred without authority; (4) possession is withheld from the owner or possessor; (5) the chattel is 23 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶7, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶8. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 12 of 25 PageID #: 349 738019.1 13 altered or destroyed; (6) the chattel is used improperly; or (7) ownership is asserted over the chattel. Dual Drilling Co. v. Mills Equipment Investments, Inc., 1998-0343 (La. 12/1/98), 721 So.2d 853, 857. Plaintiffs have asserted no allegations that an actual conversion took place. They have not alleged that they were deprived of possession of their property. Instead, Plaintiffs state that JPMC and PennyMac attempted to steal Plaintiffs’ money or real property.24 Because there is no allegation that real property or money was actually converted, Plaintiffs have not stated a claim for conspiracy to commit conversion and the Petition should be dismissed. See Shear v. Caracci, 245 So.2d 792 (La. App. 4 Cir. 1971) (defendant’s refusal to extra-judicially surrender cooler owned by the defendant’s former tenant to the plaintiff, who had a mortgage on the cooler, did not amount to conversion of the property by the defendant where the defendant did not exercise possession over the property. Rather, the defendant simply refused to become involved in a dispute between the former tenant and the mortgagee). VI. PLAINTIFFS FAIL TO PLEAD FRAUD WITH PARTICULARITY In a pleading alleging fraud, a plaintiff must state the circumstances constituting fraud with particularity. Fed.R.Civ.P. 9(b). Courts treat a dismissal for failure to plead fraud with particularity under Rule 9(b) as a dismissal for failure to state a claim upon which relief can be granted. Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). A plaintiff cannot survive a Rule 9(b) motion to dismiss on the pl adings by simply alleging that a 24 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶7, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶8. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 13 of 25 PageID #: 350 738019.1 14 defendant had fraudulent intent. “In order to adequately plead scienter, a plaintiff must set forth specific facts to support an inference of fraud.” Id. “The elements of fraud include: 1) a misstatement or omission; 2) of material fact; 3) made with the intent to defraud; 4) on which the plaintiff relied; and 5) which proximately caused the plaintiff's injury.” Williams v. WMX Technologies, Inc., 112 F.3d 175, 177 (5th Cir. 1997). In the Fifth Circuit, pleading fraud with particularity requires “time, place and contents of the false representations, as well as the identity of he person making the misrepresentation and what [that person] obtained thereby.” Id. (citations admitted). To the extent Plaintiffs are asserting a separate cl im for relief for fraud, Plaintiffs’ fraud allegations are not alleged with particularity. Plaintiffs generically allege that they were “fraudulently defrauded out of their property” and that the Defendants’ actions were done in conspiracy with parties not named in this suit to steal monies or real property. Plaintiffs have pled no facts showing what property or money was stolen, any agreement between the Defendants and the third parties, much less pled that they suffered any damages. Therefore, all fraud allegations should be dismissed. See Fed. R. Civ. P. 9(b). VII. PLAINTIFFS OTHER FEDERAL CLAIMS MUST BE DISMISSED Plaintiffs vaguely reference 42 U.S.C. § 1981 and the First, Fourth, Thirteenth and Fourteenth Amendments of the U.S. Constitution in their opposition to the state court exceptions. To the extent they are attempting to state a claim under these provisions, their claims must be dismissed. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 14 of 25 PageID #: 351 738019.1 15 A. Plaintiffs have not pled elements necessary for a claim under 42 U.S.C. § 1981 42 U.S.C. § 1981 provides that all persons shall have the same right to make and enforce contracts, to sue, be parties, give evidence, and to have the full and equal benefit of all laws and proceedings as is enjoyed by white citizens. “In order to sustain a § 1981 claim, a plaintiff must show: ‘(1) that she is a member of a racial minority; (2) that [the defendant] had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute, in this instace, the making and enforcing of a contract.’” Singleton v. St. Charles Parish Sheriff’s Dept., 2009 WL 106507, * 189 (5th Cir. Jan. 16, 2009)(citing Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001)). Plaintiffs have not alleged that they are a member of a racial minority, that any of the Defendants had the intent to discriminate against them because of race, or that discrimination concerned one or more of the activities enumerated in Section 1981. Thus, Plaintiffs have not stated a claim under 28 U.S.C. § 1981. B. Plaintiffs’ Constitutional Claims Likewise Fail The First Amendment of the Constitution guarantees h right of association, freedom of speech, religion and press and to petition the Governm nt for a redress of grievances. USCS Const. Amend. 1. The Fourth Amendment guarantees the right to be free of unreasonable search and seizures. USCS Const. Amend. 4. The Thirteenth Amendment prohibits slavery. USCS Const. Amend. 13. The Fourteenth Amendment provides that no State shall make or enforce any law which abridges the privileges or immunities of citizens, deprives any person of life, liberty Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 15 of 25 PageID #: 352 738019.1 16 or property without due process, nor deny any person equal protection of the laws. USCS Const. Amend. 14. 1. Claims under the First, Fourth and Fourteenth Amendments By their terms, the First and Fourth Amendments are only applicable to the federal government. However, the Fourteenth Amendment’s Due Process Clause makes those safeguards which are “essential to liberty” applicable to the States. Importantly, the Fourteenth Amendment prohibits tates from depriving any person of life, liberty or property without due process and equal protection of the laws. Thus, in order for Plaintiffs to successfully plead a violation of the First and Fourth Amendments through the Fourteenth Amendment, Plaintiffs must show state action. U.S. v. Williams, 341 U.S. 70, 92, 71 S.Ct. 581, 95 L.Ed. 758 (1951)(“The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.”); Todd v. Brown & Williamson Tobacco Corp., 924 F.Supp. 59, 63 (W.D. La. 1996)(“A threshold element of a Fourteenth Amendment claim is that a state actor has violated the claimant’s rights”). Plaintiffs assert that defendant-notaries, Todd Sylvester and Angela Ruth Payne, are state actors.25 There is no allegation that defendant Charlotte Russ is a state actor. Thus, as a matter of law, Plaintiffs have not stated a claim against Charlotte Russ for violation of the First, Fourth or Fourteenth Amendments. 25 R. Doc. 1-1 - Brief in Opposition to Defendant’s (sic) Motion to Dismiss, and in support of Plaintiff’s Rule to Show Cause, pp. 17 (“…false acknowledgments by Louisiana notary publics Angela Ruth Payne and Todd C. Sylvester, would constitute a deprivation of the Plaintiff’s (sic) … civil rights under the Equal protection and due process clauses of the U.S. Constitution because the notary public is exercising a power received from the government…”). Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 16 of 25 PageID #: 353 738019.1 17 With regard to Todd Sylvester and Angela Ruth Payne, Louisiana notaries public, the claims likewise fail because a notary public is nota state actor under these circumstances. The Middle District of Florida conducted a thorough analysis of Florida’s notary public law when determining that a Florida notary public was not a st te actor in Williams v. National Notary Ass’n-Florida, 2008 WL 8122804 (M.D. Fl. Nov. 4, 2008). Williams is instructive because Florida’s notary public law is similar to Louisiana’s. In Williams, the plaintiff alleged that the defendant notary public participated in a fraudulent scheme to deprive plaintiff of real property he was entitled to inherit from the his late mother. The documents at issue were two quitclaim deeds which transferred ownership of the property from the plaintiff’s late mother to a third person. Plaintiff asserted that the deeds were forged and falsely acknowledged by the notary public. In analyzing whether the notary public was a state ac or, the Williams court initially noted that the Supreme Court has “insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the state.” Id., at * 4 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). “A deprivation is fairly attributable to the State when it is caused by the exercise of some right created by the state and the party charged with the deprivation ‘may fairly be said to be a state actor.’” Id. The Williams court then analyzed Florida’s notary public statutes and found that: (1) the Florida statutes indicate that a notary public is neither a public official nor a state actor, even though there is a passing reference to the “office of notary public”; (2) the statute frequently refers to the notary public appointment as a commission; (3) the powers and duties given to Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 17 of 25 PageID #: 354 738019.1 18 notaries are merely ministerial, such as the power to administer oaths, take acknowledgments of deeds and other written instruments and to solemnize the rights of matrimony; (4) the ministerial powers and duties give a notary public no discretion t make decisions on behalf of the government; (5) the statute recognizes a widely-known fact that notaries public are often employed by private entities; (6) the employment and control of many notaries public by nongovernmental entities strongly suggest that a not ry public is not a public official as public officials are typically employed by the state; and (5) the Florida Supreme Court has recognized that notaries public are not decisionmakers for the State and do not take action for the State. Id. Louisiana’s notary public laws are similar. While a notary public is appointed, La. R.S. 35:1, the appointment is often referred to as a commission. See La. R.S. 35:1.1; La. R.S. 35:12(C); La. R.S 35:16; La. R.S. 35:191(A)(3); La. R.S. 35:201. A notary public has the ministerial powers to make inventories, appraisements and partition; to receive wills, make protests, matrimonial contracts, conveyances and generally all contracts and instruments of writing; to hold family meetings and meetings of creditors; to receive acknowledgments of instruments under private signature; to make affidavits of correction to affix the seals upon effects of deceased persons; to administer oaths, swear in persons to appear to give testimony and to verify interrogatories and other pleadings; and to certified true copies of any authentic act or act under private signature. La. R.S. 35:2. Notaries are often employed by private businesses. S e La. R.S. 35:4(concerning notaries connected with banks and other corporations); La. R.S. 35:14(concerning attorneys acting as notary public who have been suspended or disbarred); La. R.S. 35:191(W); La. R.S 35:200 Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 18 of 25 PageID #: 355 738019.1 19 (action for damages against notary public, any partnership of such notaries, or any professional corporation, company, organization, etc. answerable for damage occasioned by such notary public…). Additionally, Louisiana’s notary public law contains a section which specifically governs ex officio notaries which includes specific provisions for a state employee who serves as an ex officio notary in the course of scope of his state employment. La. R.S. 35: 391, et seq. Thus, Louisiana law contemplates that while some notaries public may be state actors by virtue of their employment with a state department or agency, the mere fact that the State licenses and regulates notaries public does not make all notaries public state actors. Notably, Plaintiffs allege that Ms. Payne and Mr. Sylvester were employees of Chase.26 Plaintiffs have asserted no facts which support the conclusion that Todd Sylvester and Angela Ruth Payne were state actors. The Supreme Court has applied at least three different tests to determine whether private conduct may be charged to the state. Bass v. Parkwood Hosp., 180 F.3d 234 (5th Cir. 1999). “Under the public function test, a ‘private entity may be deemed a state actor when that entity performs a function which is traditionally the exclusive province of the state.’” Id., at 242. In Louisiana, notaries public have the power to administer oaths, acknowledge written instruments and solemnize the rights of marriage, among other things. “Traditionally, these are not functions performed exclusively by the government.” Williams, 2008 WL 8122804, * 5; See also La. Atty. Gen. Op. 06-0301 (analyzing whether an ex officio notary public for the sheriff 26 R. Doc. 1-1 - Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶ 2, and at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶ 2. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 19 of 25 PageID #: 356 738019.1 20 may notarize property deeds, administer oaths of office and notarize foreclosure deeds and finding that an ex officio notary public for the sheriff may not perform these functions because sheriffs are not normally involved in performing these tasks). The state compulsion test considers that “a State normally can be held responsible for a private decision only when it has exercised coerciv power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Bass, 180 F.3d at 242 (citations omitted) “The state's mere acquiescence in private conduct, even where authorized by statute, will not transform that conduct into state action.” Id. (citations omitted). Plaintiffs do not suggest that Louisiana coerced or significantly encouraged Mr. Sylvester’s or Ms. Payne’s actions. The third test, the nexus or joint action test, considers whether the government has “so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise.” Id. (citations omitted). While the State licenses notaries public, the licensing and regulation is similar to how Louisiana licenses and regulates many other occupations, including accountants, attorneys, dentists, nurses, plumbers, contractors, hearing aid dealers, counselors, etc. See generally, Title 37 of the Louisiana Revised Statutes (concerning professions and occupations). Further, a notary public is fundamentally different from other individuals normally found to be state actors, such as governors, state attorneys general, and police officers. Williams, 2008 WL 8122804, * 5. “These individuals take action ormake decisions on behalf of the government, often with a degree of autonomy or independence.” Id. These individuals act on Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 20 of 25 PageID #: 357 738019.1 21 behalf of the State and bind the State. Id. “While performing function that have some connection to activities in which the State is involved, [notaries public] do not act for the state, and their actions are not fairly attributable to the State.” Id. In sum, none of Ms. Payne’s nor Mr. Sylvester’s actions suggest that they were state actors when they executed the assignments of mortgage in question. Further, their commission by the state as notaries public does not, alone, qualify Ms. Payne or Mr. Sylvester as state actors. Therefore, the claims under the First, Fourth and Fourteenth Amendments should be dismissed. 2. Thirteenth Amendment Claim Fails The purported claims under the Thirteenth Amendment should also be dismissed. While the immediate aim of the Thirteenth Amendment was to abolish slavery, it has been construed to encompass or maintain a system of free and voluntary labor. Pollock v. Williams, 322 U.S. 4, 17, 64 S.Ct. 792, 88 L.Ed. 1095 (1944). Thus, the forced labor of individuals amounts to involuntary servitude. Stone v. City of Paducah, 120 Ky. 322, 86 S.W. 531 (1905). However, there is no private cause of action under th Thirteenth Amendment. Turner v. Unification Church, 473 F.Supp. 367, 373-74 (D. R.I. 1978)(declining to imply a cause of action under the Thirteenth Amendment); John Roe I v. Bridgestone Corp., 492 F.Supp.2d 988, 997 (S.D. Ind. 2007)(“federal district courts have consistently held that the Thirteenth Amendment itself does not provide a private right of action fr damages” and cases cited therein); Alridge v. Rite Aid of Washington, D.C., 146 F.Supp.3d 242, 250 (Thirteenth Amendment does n t provide a free-standing, implied right of action). Moreover, Plaintiffs have asserted no allegation of Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 21 of 25 PageID #: 358 738019.1 22 forced labor. Thus, their claims under the Thirteen h Amendment, to the extent any have been alleged, must be dismissed. VIII. PEREMPTORY EXCEPTION OF PRESCRIPTION If the court determines that Plaintiffs have stated a claim against Defendants (which is denied), Plaintiffs’ Petition must be dismissed with prejudice because Plaintiffs’ claims are prescribed. “Liberative prescription is a mode of barring of actions as a result of inaction for a period of time.” See La. Civil Code art. 3447. Louisiana law provides that an obligee's right to assert a cause of action may be lost with the passage of time by the operation of prescription. See Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105, p. 5 (La. 3/15/11), 62 So.3d 721, 726. The jurisprudence explains that the “fundamental purpose of prescription statutes is to afford a defendant economic and psychological security if no claim is made timely, and to protect him from stale claims and from the loss of n n-preservation of relevant proof.” Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040, 1045 (La. 1985). Prescriptive statutes “are designed to protect him against lack of notification of a formal claim within the prescriptive period,” and importantly for the purposes of this discussion, “not against pleading mistakes that his opponent makes in filing the formal claim within the period.” Id. Prescription is raised by a Rule 12(b)(6) motion when the defense appears on the face of the complaint. Potier v. JBS Liberty Securities, Inc., 2014 WL 5449726 (Oct. 24, 2014). Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 22 of 25 PageID #: 359 738019.1 23 A. Claims against a notary public prescribes in one year To the extent that Plaintiffs have stated a cause of action against Ms. Payne and Mr. Sylvester for their actions as a notary public (which is denied), Plaintiffs’ claims are prescribed. La. R.S. 35:200 provides that an action for damages against any notary public duly commissioned in this state arising out of an engagement to provide notarial services shall be brought within one year of the date of the alleged act or within one year from the date the alleged act is discovered or should have been discovered. La. R.S. 35:200(A). The assignment from the FDIC-R to JPMC was executed on April 18, 2014 and recorded on May 8, 2014.27 The assignment from JPMC to PennyMac was executed on October 8, 2014 and recorded on March 1, 2015.28 Plaintiffs filed suit on May 6, 2016, more than oe year after the assignments were executed and recorded. An instrument is effective against third persons from the time it is filed for registry where the property was located. La. Civ. Code art. 1839; La. Civ. Code art. 3338. Third persons, like Plaintiffs, are deemed to have constructive knowledge or notice of the existence and contents of recorded instruments affecting immovable property as of the time it is filed for registry. Longleaf Investments, L.L.C. v. Tolintino, 47,545 (La. App. 2 Cir. 12/5/12), 108 So.3d 157, 160; Carr v. Oaktree Apartments, 45,514 (La. App. 2 Cir. 08/11/10), 46 So.3d 793, writ denied, 10- 2092 (La. 11/12/10), 49 So.3d 896. Accordingly, Plaintiffs knew or should have known of the 27 Rec Doc. 1-1 - Petition, at James Ezell affidavit regarding Angela Ruth Payne and Charlotte Russ, ¶1; Exhibit A. 28 Rec Doc. 1-1 - Petition at James Ezell affidavit regarding Todd C. Sylvester and Shillem Johnson a/k/a Shillen Johnson, ¶1; Exhibit B. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 23 of 25 PageID #: 360 738019.1 24 assignments as of the date of their recordation. Si ce this suit was filed more than one year after those dates, Plaintiffs’ claims are prescribed. B. Claims for fraud, conspiracy and constitutional claims prescribe in one year Similarly, Plaintiffs claims for fraud and conspiracy are prescribed. Plaintiffs allege the assignments executed and notarized by the Defendants were fraudulent and were done in conspiracy to facilitate the taking of Plaintiffs’ monies or real property. Thus, Plaintiffs’ fraud and conspiracy to commit conversion claims sound in tort and are subject to the one year prescriptive period set forth in La. Civ. Code art. 3492. See Johnson v. Hardy, 98-2282 (La. App. 1 Cir. 1/5/99), 756 So.2d 328 (claim for conversion of property is subject to a one-year prescriptive period); Southern v. Bank One of Louisiana, N.A., 32,105 (La. App. 2 Cir. 8/18/99), 740 So.2d 775 (action for damage caused by fraud sound in tort). Similarly, the federal constitutional claims prescribe in one year. Griffin v. New Orleans City, 628 Fed. Appx. 300 (Mem)(5th Cir. Jan. 6, 2016)(claims alleging violations of the Fourth, Eighth, Thirteenth and Fourteenth Amendments are prescribed by Louisiana’s one-year statute of limitations, the forum state’s most analogous limitations period); Detro v. Roemer, 739 F.Supp. 303 (E.D. La. 1990)(applying one-year prescriptive period to claims under the Fourth, Fifth, Sixth and Fourteenth Amendments); Vandenweghe v. Jefferson Parish, 2012 WL 1825300 (E.D. La. May 18, 2012)(applying Louisiana’s one-year prescriptive period to First Amendment claim). As discussed above, the assignments were executed and recorded more than one year before Plaintiffs filed suit. Accordingly, their claims are prescribed and the Petition should be dismissed with prejudice. Case 3:16-cv-01166-RGJ-KLH Document 5-1 Filed 08/22/16 Page 24 of 25 PageID #: 361 738019.1 25 IX. CONCLUSION Plaintiffs’ claims should be dismissed because Plaintiffs have failed to state a claim for relief against the Defendants and, to the extent claims were properly asserted, Plaintiffs’ claims are prescribed. Accordingly, the Petition should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) and Rule 9(b). Respectfully submitted, /s/ Amanda S. Stout MICHAEL D. FERACHI, (Bar Roll No. 19566) AMANDA S. STOUT (Bar Roll No. 29001) McGlinchey Stafford, PLLC 301 Main Street, Ste. 1400 Baton Rouge, Louisiana 70801 Telephone: (225) 383-9000 Telecopier: (225) 343-3076 ATTORNEYS FOR ANGELA RUTH PAYNE, CHARLOTTE RUSS AND TODD C. SYLVESTER CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoin has been served upon the plaintiffs, non-ECF participants, by electronic mail nd by depositing same in the U.S. Mail, postage prepaid and properly addressed: James and Sonia Ezell 361 Starling Dr. Grove Hill, AL 36451 soniaezell@yahoo.com Baton Rouge, Louisiana, this 22nd day of August, 2016. /s/ Amanda S. Stout Amanda S. 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