Turner v. Ascendium Education Group, Inc.
3:20-cv-00660
M.D. La.Apr 12, 2021Background
- Plaintiff Tyler J. Turner obtained a federal student loan for Southern University Law School and alleges Defendants Ascendium Education Group and Pioneer Credit Recovery garnished his wages to collect on that debt.
- Turner sued in state court asserting fraud/ill practices, wrongful garnishment/seizure, conversion, and violations of the Louisiana Unfair Trade Practices Act; he sought damages and an injunction stopping his employer from garnishing wages.
- Defendants removed the case to federal court and moved to dismiss under Rule 12(b)(6), arguing Turner's petition contains only conclusory allegations and fails to plead fraud with Rule 9(b) particularity.
- Turner's two‑page opposition recited the Twombly plausibility standard but did not identify facts in the petition or respond substantively to defendants’ arguments.
- The Court concluded Turner waived substantive opposition, found the pleadings deficient, granted the motion to dismiss without prejudice, and gave Turner 28 days to amend (failure to amend would result in dismissal with prejudice), with a Rule 11 reminder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint states claims under Rule 12(b)(6) | Twombly plausibility standard permits any set of consistent facts to support the claim | Petition contains only legal conclusions and two bare facts; insufficient to state a claim | Claims dismissed for failure to state a claim; plaintiff waived substantive response |
| Whether fraud claim meets Rule 9(b) particularity | (No specific factual response in opposition) | No who/what/when/where/how pled; 9(b) not satisfied | Plaintiff pleaded no facts of fraud; claim insufficient and unopposed |
| Whether plaintiff waived challenges by failing to respond | Plaintiff offered a general legal recitation but no case-specific arguments | Failure to brief substance constitutes waiver | Court found waiver pursuant to Fifth Circuit/M.D. La. precedent |
| Whether dismissal should be with leave to amend | Leave should be afforded to cure pleading defects | (Defendants did not oppose leave given pleading failures) | Court granted leave to amend (28 days) but warned Rule 11; failure to amend → dismissal with prejudice |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes pleading plausibility standard under Rule 12(b)(6))
- United States v. Dominguez‑Chavez, [citation="300 F. App'x 312"] (failure to raise argument in brief constitutes waiver)
- United States v. Reagan, 596 F.3d 251 (appellate waiver for unbriefed issues)
- JMCB, LLC v. Bd. of Commerce & Indus., 336 F. Supp. 3d 620 (district‑court waiver where party fails to address issue in district court brief)
- Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305 (leave to amend generally favored absent certainty that amendment cannot cure defects)
- Byrd v. Bates, 220 F.2d 480 (district courts should afford opportunity to amend defective pleadings)
- United States ex rel. Wuestenhoefer v. Jefferson, 105 F. Supp. 3d 641 (failure to brief an issue in district court waives it)