United States District Court, E.D. Michigan, Southern Division
ANGELA M. ARNOLD, Plaintiff,
JIM VANPAEMEL and FIFTH THIRD BANK LAW DEPARTMENT, Defendants.
OPINION AND ORDER DISMISSING COMPLAINT WITHOUT
J. MICHELSON U.S. DISTRICT JUDGE
to her complaint, Angela Arnold purchased a car from Victory
Motors, and when she tried to trade that car in, she learned
that an insurance company had deemed the car “a total
loss.” (R. 1, PID 1.) Arnold thus sued the owner of
Victory Motors, Jim Van Paemel, and Fifth Third Bank's
legal department. Her complaint raises only one claim: that
Defendants violated the Federal Trade Commission Act, 15
U.S.C. § 45(a)(1), by engaging in a deceptive act or
practice when they sold her the car. (R. 1, PID 4.). (In
Arnold's reply to Fifth Third's answer to
Arnold's complaint, Arnold invokes the Equal Credit
Opportunity Act. But Arnold's reply to an answer is an
improper pleading absent a court order. See Fed. R.
Civ. P. 7(a); Silicon Graphics, Inc. v. ATI Techs.,
Inc., No. 06-C-611-C, 2007 WL 5595952, at *10 (W.D. Wis.
June 14, 2007).)
Paemel (but not Fifth Third) has moved to dismiss
Arnold's complaint on two grounds: that this Court lacks
subject-matter jurisdiction over Arnold's claim and that
he is not a proper defendant to this lawsuit. (R. 5.)
one part of Van Paemel's motion is straightforward. He is
correct that there is no implied private right of action
under the provision of the Federal Trade Commission Act that
Arnold invokes. See Holloway v. Bristol-Myers Corp.,
485 F.2d 986, 1002 (D.C. Cir. 1973); Carlson v. Coca-Cola
Co., 483 F.2d 279, 280 (9th Cir. 1973); Davis v.
Citimortgage, Inc., No. 0:15-CV-04643-MGL, 2016 WL
4040084, at *4 (D.S.C. July 28, 2016); Morales v. Walker
Motors Sales, Inc., 162 F.Supp.2d 786, 790 (S.D. Ohio
consequence of this determination is less straightforward. On
the one hand, it appears that this Court should dismiss
Arnold's complaint for lack of subject-matter
jurisdiction. It is well settled that a federal claim that is
clearly “immaterial and made solely for the purpose of
obtaining jurisdiction” or is “wholly
insubstantial and frivolous” cannot trigger
federal-question jurisdiction under 28 U.S.C. § 1331.
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 89 (1998). Additionally, in TCG Detroit v. City
of Dearborn, 206 F.3d 618, 622 (6th Cir. 2000), the
Sixth Circuit explained that if there was no implied private
right of action (under a different statute), the plaintiff
would not have constitutional standing to sue, i.e.,
the federal courts would lack subject-matter jurisdiction. If
there is no real federal question or Arnold lacks
constitutional standing, her complaint should be dismissed
under Federal Rule of Civil Procedure 12(b)(1) for lack of
other hand, perhaps dismissal on the merits is proper.
Constitutional standing only requires a plaintiff to show
“(1) [she] has suffered an ‘injury-in-fact'
that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.”
Soehnlen v. Fleet Owners Ins. Fund, - F.3d -, No.
16-3124, 2016 WL 7383993, at *3 (6th Cir. Dec. 21, 2016)
(internal quotation marks omitted). Here, if Arnold's
assertions are true, the dealership sold her a lemon. That
would be a concrete injury traceable to the dealership owned
by Van Paemel. And it would be the type of injury which
courts can redress.
in Lexmark Int'l, Inc. v. Static Control Components,
Inc., - U.S. -, 134 S.Ct. 1377, 1387 (2014), the Supreme
Court was explicit that the question of whether the plaintiff
was “within the class of plaintiffs whom Congress has
authorized to sue under [15 U.S.C.] § 1125(a)” was
not a question of constitutional standing but a question of
whether the plaintiff “ha[d] a cause of action under
the statue.” See also Am. Psychiatric Ass'n v.
Anthem Health Plans, Inc., 821 F.3d 352, 360 (2d Cir.
2016) (applying Lexmark and finding that the
question of whether psychiatrists could sue under ERISA,
which permits suit to be brought “by a participant,
beneficiary, or fiduciary, ” was not a question of
constitutional standing). If the existence of a private right
of action under 15 U.S.C. § 45(a)(1) is not a question
of standing, and if Arnold's invocation of that provision
is not clearly frivolous or “solely for the purpose of
obtaining jurisdiction, ” then Arnold's complaint
should be dismissed under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may
case, either the Rule 12(b)(1) or Rule 12(b)(6) route end in
the same place. Arnold's Federal Trade Commission Act
claim must be dismissed. But Arnold is pro se and
claims she was sold a lemon. Dismissing her complaint with
prejudice under Rule 12(b)(6) would be too “harsh [a]
sanction.” Craighead v. E.F. Hutton & Co.,
899 F.2d 485, 495 (6th Cir. 1990) (“The grant of a
12(b)(6) motion is an adjudication on the merits, unless the
district court specifies the dismissal is without prejudice.
The decision to dismiss with prejudice is a harsh sanction,
but the choice lies within the discretionary power of the
district court, and we will not reverse absent a clear
showing of abuse of ...