United States District Court, N.D. Mississippi, Oxford Division
TEWANIA C. HARRIS PLAINTIFF
JAMIE DIMON, et al. DEFENDANT
ORDER OF DISMISSAL
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
December 13, 2017, this Court ordered Plaintiff Tewania C.
Harris to show cause as to why her claims against Chase Bank
should not be dismissed under 28 U.S.C. § 1915(e)(2)(B)
as frivolous and untimely and for failure to state a claim on
which relief may be granted. Docket 8. Plaintiff filed her
Complaint against Chase Bank and multiple other individuals
on October 27, 2017. Docket 1. The Court's December 13
Order dismissed Plaintiff's claims against all individual
Defendants as frivolous, for failure to state a claim, and
for seeking monetary relief against defendants immune from
such relief and further ordered Plaintiff to show cause as to
why the remaining claims against Chase Bank are not subject
to dismissal under 28 U.S.C. § 1915(e)(2)(B). Docket 8.
claims against Chase Bank reference Social Security benefits,
a certified check, and a certificate of deposit account.
Docket 1 at 7. She contends that certain Social Security
payments were directly deposited into her account at Chase
Bank, however, “Chase closed this account[, ] set up
new account[, ] stole my money.” Id. at 7.
Plaintiff claims that she never received Social Security
direct deposits in the amount of $5, 137.70 and $2, 376.00,
totaling $7, 513.70. Id. at 7. She further alleges
that Chase Bank stole a $5, 000.00 certificate of deposit and
that Chase Bank withheld $500.00 after Plaintiff initiated a
stop payment on a cashier's check in that amount.
Id. Based on the facts alleged in Plaintiff's
Complaint, any claim she might have against Chase Bank
accrued in 2005, yet Plaintiff did not file suit until
October 27, 2017, and her Complaint makes no allegation
regarding any waiver or tolling of the applicable statute(s)
of limitations. Docket 1. Plaintiff was ordered to show cause
as to why her Complaint should not be dismissed no later than
January 2, 2018. Docket 8.
submitted three separate responses to the show cause order on
January 5, January 8, and January 17, 2018. Docket 9, 10, 11.
Plaintiff's January 5, 2018 submission contains some
information relevant to the show cause order which is
discussed herein; however, the response largely contains
copies of e-mail messages related to claims this Court
dismissed on December 13, 2017. Id. at 6-81.
Plaintiff's January 8 and 17, 2018 submissions are a
continuation of e-mail messages that are wholly irrelevant to
the Court's show cause inquiry. Docket 10, 11.
December 13, 2017 Order, the Court granted Plaintiff's
Motion to Proceed In Forma Pauperis. Docket 8.
However, in an IFP case, the Court must dismiss a complaint
when the action: “(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). As
the Court stated in its previous Order, “[a] district
court ‘may raise the defense of limitations sua
sponte ... [and] [d]ismissal is appropriate if it is
clear from the face of the complaint that the claims asserted
are barred by the applicable statute of
limitations.'” Stanley v. Foster, 464 F.3d
565, 568 (5th Cir. 2006) (quoting Harris v. Hegmann,
198 F.3d 153, 156 (5th Cir. 1999)). Mississippi Code
Annotated § 15-1-49 provides a three-year statute of
limitations for any general claim Plaintiff is attempting to
assert against Chase Bank. This three-year limitations period
applies to claims for negligence, fraud, breach of contract,
conversion, and negligent or intentional infliction of
emotional distress. Miss. Code Ann. § 15-1-49; see
also Adams v. John M. O'Quinn & Assocs.,
PLLC, 2017 WL 1194367, at *3 (N.D. Miss. Mar. 30, 2017);
Covington Cty. Bank v. Magee, 177 So.3d 826, 828
(Miss. 2015). Mississippi law further provides that an action
against the issuer of a cashier's check or an action for
conversion of the instrument must be commenced within three
years. Miss. Code Ann. § 75-3-118. Finally, the general
federal statute of limitations for civil actions is four
years. 28 U.S.C. § 1658; Garrett v. Thaler, 560
Fed.Appx. 375, 383 (5th Cir. 2014).
court acknowledges its obligation to liberally construe the
pleadings of a lay person, like the Plaintiff, when he or she
is proceeding in a case without benefit of counsel.
Haines v. Kerner, 404 U.S. 519 (1972). However,
“[a] district court may sua sponte dismiss a
complaint under Rule 12(b)(6) ‘as long as the procedure
employed is fair.'” Whatley v. Coffin, 496
Fed.Appx. 414, 415 (5th Cir. 2012) (citing Bazrowx v.
Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)). “Such
dismissal is appropriate if the plaintiff has notice of the
possibility of a ruling on the merits or if the plaintiff has
had the opportunity to allege its ‘best
case.'” Broyles v. Texas, 618 F.Supp.2d
661, 683 (S.D. Tex. 2009); Lozano v. Ocwen Fed.
Bank, 489 F.3d 636, 642 (5th Cir. 2007); Guthrie v.
Tifco Indus., 941 F.2d 374, 379 (5th Cir. 1991);
Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.
1986). Federal Rule of Civil Procedure 8(a)(2) requires that
pleadings contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
This pleading standard does not require “detailed
factual allegations, but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do. Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. at 678 (citation
contends that certain Social Security payments were directly
deposited into her account at Chase Bank, however,
“Chase closed this account[, ] set up new account[, ]
stole my money.” Id. at 7. In support of these
allegations, Plaintiff's Complaint includes documentation
from the Social Security Administration dated January 14,
2005 and January 19, 2005 detailing the $7, 513.70 and $5,
137.70 payments she presumably never received. Docket 1 at
response to the show cause order states that she
“received letters from Social Security I would Put away
sometimes Never reading them” and claims she never knew
that the $7, 513.70 check was deposited into an allegedly
closed Chase Bank checking account. Docket 9 at 2. Plaintiff
claims that she “called Chase Bank inquiring about my
Funds being deposited into My Account […] they said
they didn't have my Funds.” Docket 9 at 2.
According to Plaintiff, “[t]his was five Years after
2005.” Id. Even if Plaintiff's claim
against Chase Bank for allegedly stealing her money did not
accrue until 2010, it remains barred by the three-year
statute of limitation for conversion set forth in Mississippi
Code Annotated § 15-1-49. Id.
a $500.00 cashier's check to Dorrance Publishing Company,
Plaintiff's Complaint includes correspondence from Chase
Bank dated October 5, 2017, stating “we cannot confirm
whether the funds were credited to this account or a new
cashier's check was made because we only keep records of
account transactions for seven years.” Docket 1 at 16.
The letter from Chase Bank references an Affidavit and
Indemnity Agreement dated February 5, 2005, that Plaintiff
signed attesting that the cashier's check was lost, and
Plaintiff attached the Agreement as well as the Stop
Payment/Reissue Request to her Complaint. Id. at 21,
only reference to the certified check in Plaintiff's
response to the show cause order states: “Ms. Martha
Witker at Dorrence Publishing Company sent the Cashier Check
for Publishing Bank One Sent Dorrance Publishing the Cashier
Check, on 3/06/2008.” Docket 9 at 1-2. This is
inconsistent with the Stop Payment/Reissue Request and
Affidavit and Indemnity Agreement dated February 5, 2005,
attached to Plaintiff's Complaint. Docket 1 at 21, 22.
Regardless, even if Plaintiff's claims regarding the
cashier's check occurred in 2008, they are still barred
by the statute of limitation for actions against the issuer
of a cashier's check set forth in Mississippi Code
Annotated § 75-3-118.
Complaint states that “Chase stole $5, 000 C.D.”
with no further factual allegations, yet she attached a March
21, 2016 letter from Chase Bank which states “we found
no records of your CD account and the checking account ending
in 2515, where the CD interest was deposited into. As
previously explained, we keep account records for seven
years.” Id. at 7, 18. Plaintiff's response
to the show cause order asserts no additional facts to
support this bare allegation other than the statement that
she “took and Put the Funds into a C.D. Account I
Shortly took it Down, Paid Bills, went Shopping.”
Docket 9 at 1-2.
was given the opportunity to show cause as to why her claims
against Chase Bank should not be dismissed under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim on
which relief may be granted. Docket 8. However, in her
responses to the show cause order, Plaintiff failed to set
forth any factual assertions regarding the certificate of
deposit other than the “naked assertion” that
“Chase stole $5, 000 CD.” Docket 1 at 7;
Ashcroft, 556 U.S. at 678. Notwithstanding
Plaintiff's failure to state a claim, the letter from
Chase Bank stating that no records of the CD account were
found and that records are kept for seven years strongly
suggests that any claim Plaintiff may have had regarding a
certificate of deposit is untimely.
this Court gave Plaintiff the benefit of the general federal
statute of limitations for civil actions set forth in 28
U.S.C. § 1658, Plaintiff's claims against Chase Bank
still fail as matter of law. Plaintiff has failed to show
cause as to why her claims against Chase Bank should not be
dismissed under 28 U.S.C. § 1915(e)(2)(B) as frivolous
and untimely and for failure to state a claim on which relief
may be granted. This case is dismissed without prejudice.