Hunsinger v. Valor Intelligent Processing LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOE HUNSINGER,
Plaintiff,
v.
VALOR INTELLIGENT
PROCESSING, et al.,
Defendants.
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Case No. 3:25-cv-1880-X-BT
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Defendant United States Fire Insurance Company (“USFIC”) has filed a
Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). See Mot. Dismiss (ECF No. 13).
For the reasons stated, the District Judge should GRANT the Motion and
DISMISS the Complaint unless Plaintiff amends his complaint within the time to
file objections to this report and recommendation.
Background
Plaintiff Joe Hunsinger filed this action alleging that Defendant Valor
Intelligent Processing (“Valor”) used an “automatic telephone dialing system” to
repeatedly call and text Plaintiff’s cell phone in violation of the Telephone
Consumer Protection Act (47 U.S.C. § 227), the Fair Debt Collections Practices Act
(15 U.S.C. § 1692), the Texas Business and Commerce Code (Tex. Bus. & Com. Code
§ 305), and the Texas Finance Code (Tex. Fin. Code § 392). See generally Compl.
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(ECF No. 3). But Plaintiff makes no allegations related to any misconduct by
USFIC. See id. In fact, USFIC is only mentioned twice in Plaintiff’s Complaint:
2.05 [USFIC] is the surety of the Defendant Valor. Defendant [USFIC]
has a corporate address of 305 Madison Avenue, Morristown, New
Jersey 07960 and they can be served at this address.
****
5.51 Defendant [USFIC] is the surety of Defendant Valor to conduct
business in Texas as a third party debt collector. Defendant [USFIC]
is named as a defendant for the benefit of Plaintiff for Defendant[]
Valor[’s] violation of the debt collection laws.
See id. 2, 5. As a result, USFIC moved to dismiss Plaintiff’s claims under Federal
Rule of Civil Procedure 12(b)(6). See Mot. Dismiss (ECF No. 13). USFIC argues that
Plaintiff fails to state a claim against it because Plaintiff’s Complaint “contains no
factual allegations that, if proved, would allow this court [to] draw the reasonable
inference that Defendant USFIC is liable for any misconduct.” Id. at 5.
Plaintiff responds that USFIC’s status as Defendant Valor’s surety requires
that USFIC remain in this lawsuit. See Pl.’s Resp. 4–6 (ECF No. 14). At the same
time, Plaintiff acknowledges that he does not have a “dispute” with USFIC. See id.
at 4.
Legal Standard
To survive a Rule 12(b)(6) motion, a plaintiff’s complaint must contain
sufficient factual matter to state a plausible claim for relief on its face. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint’s
‘[f]actual allegations must be enough to raise a right to relief above the speculative
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level.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010)
(quoting Twombly, 550 U.S. at 555).
This pleading standard does not require “detailed factual allegations,” but it
does demand more than an unadorned accusation devoid of factual support.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw a reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions
can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. If the facts do not permit the Court to infer
more than the mere possibility of misconduct, the complaint has stopped short of
showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly,
550 U.S. at 557).
When applying the plausibility standard, the Court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal
quotation marks and citations omitted). But a court may not look beyond the
pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Review is limited
to the complaint, any documents attached to the complaint, and any documents
attached to the motion to dismiss that are central to the claim and referenced by
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the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383,
387 (5th Cir. 2010)); see also Inclusive Communities Project, Inc. v. Heartland
Cmty. Ass'n, Inc., 399 F. Supp. 3d 657, 665 (N.D. Tex. 2019), aff'd, 824 F. App'x
210 (5th Cir. 2020) (“In ruling on [a Rule 12(b)(6)] motion, the court cannot look
beyond the pleadings.”) (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.
1999)).
Courts considering Rule 12(b)(6) motions generally hold pro se complaints
to less stringent standards than formal pleadings drafted by lawyers. Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v.
Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). But “despite [the] general
willingness to construe pro se filings liberally,” courts “still require pro se parties
to fundamentally abide by the rules that govern the federal courts.” E.E.O.C. v.
Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014), as revised (Sept. 18, 2014)
(cleaned up). Thus, a pro se plaintiff is not excused from the requirements to
“properly plead sufficient facts that, when liberally construed, state a plausible
claim to relief[.]” Id. (citations omitted). The undersigned liberally construes
Hunsinger’s Complaint (ECF No. 3) with all possible deference due a pro
se litigant. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings are “to
be liberally construed,” and “a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.”)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But such liberal treatment does
not require a court to “create causes of action where there are none.” Smith v. CVS
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Caremark Corp., 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013). And pro
se status does not provide an “impenetrable shield,” “for one acting pro se has no
license to harass others, clog the judicial machinery with meritless litigation and
abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808
F.2d 358, 359 (5th Cir. 1986).
Even so, generally, a district court may not dismiss a pro se complaint for
failure to state a claim under 12(b)(6) without giving the plaintiff a chance to
amend. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
Analysis
Plaintiff argues against dismissal because USFIC is the surety for Defendant
Valor. See Pl.’s Resp. 4–6 (ECF No. 14). Plaintiff asserts that if he “can prove
Defendant Valor violated any of the statutes,” and Defendant Valor “do[es] not or
cannot pay, Defendant [USFIC] is on the hook and liable for the misconduct . . . as
stated in the agreement [between USFIC and Valor] . . . on file with the Texas
[Secretary of State].” Id. at 6. He further argues that he is “legally allowed to name
and maintain an action against the surety of a third-party debt collector.” See id.
at 5 (citing Tex. Fin. Code § 392.102.)
But Plaintiff does not assert any cause of action against USFIC in his
Complaint. See Compl. (ECF No. 3). In fact, USFIC is referenced only twice in the
Complaint’s 16 pages, at general allegations 2.05 and 5.51:
2.05 [USFIC] is the surety of the Defendant Valor. Defendant [USFIC]
has a corporate address of 305 Madison Avenue, Morristown, New
Jersey 07960 and they can be served at this address.
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****
5.51 Defendant [USFIC] is the surety of Defendant Valor to conduct
business in Texas as a third party debt collector. Defendant [USFIC]
is named as a defendant for the benefit of Plaintiff for Defendant[]
Valor[’s] violation of the debt collection laws.
See id. at 2, 5. These allegations, standing alone, are insufficient to state a
plausible claim for relief against USFIC—even when liberally construed. See id.;
see Twombly, 550 U.S. at 570. The mere fact that USFIC is a surety for Defendant
Valor does not permit the Court to infer any possibility of misconduct by USFIC.
See Iqbal, 556 U.S. at 678–79.
Plaintiff is correct that Chapter 392 of the Texas Finance Code allows a
person to maintain an action against a Texas debt collector and its surety. See Pl.’s
Resp. 5 (ECF No. 14) (citing Tex. Fin. Code § 392.102).1 And he purports to bring
claims against Defendant Valor—allegedly a third-party debt collector—under
Chapter 392 of the Texas Finance Code. See Compl. (ECF No. 3). USFIC does not
dispute that it is the surety of Defendant Valor. See Mot. Dismiss (ECF No. 13).
But the Court will not “create causes of action where there are none.” Smith,
2013 WL 2291886, at *8. And Plaintiff’s arguments in his Response to the Motion
to Dismiss (ECF No. 14) do not cure the deficiencies in the Complaint itself. See
Sheppard v. Cheeks, 2020 WL 2301367 (W.D. La. Apr. 13, 2020), rec. adopted,
2020 WL 2248134 (W.D. La. May 7, 2020), aff'd, 2022 WL 964202 (5th Cir. Mar.
1 Tex. Fin. Code § 392.102 provides: “[a] person who claims against a bond for a
violation of this chapter may maintain an action against the third-party debt
collector . . . and against the surety.”
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30, 2022) (“The law is well-settled that arguments in a brief are no substitute for
properly plead allegations: ‘it is axiomatic that a complaint cannot be amended by
briefs in opposition to a motion to dismiss.’”); See also In re Enron Corp. Sec.,
Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011). Because a
Rule 12(b)(6) motion tasks the Court with “assess[ing] the legal sufficiency of the
complaint,” the Court will not consider allegations and argument that appear for
the first time in Plaintiff’s briefing. See Servicios Azucareros de Venezuela, C.A. v.
John Deere Thibodeaux, Inc., 702 F.3d 794, 804 (5th Cir. 2012); see also Fed. R.
Civ. P. 12(b)(6).
That said, a pro se plaintiff should generally be granted leave to amend his
complaint prior to dismissal. See Brewster v. Dretke, 587 F.3d 764, 767–68 (5th
Cir. 2009). Thus, dismissal under 12(b)(6) is proper unless Plaintiff amends his
Complaint to clarify the basis of his claims against USFIC. See id.
Recommendation
For the reasons stated, the undersigned RECOMMENDS that the District
Judge, GRANT USFIC’s Motion to Dismiss (ECF No. 13) and DISMISS the
Complaint unless Plaintiff amends and cures the pleading deficiencies within the
time to file objections to this report and recommendation (explained below).
SO RECOMMENDED.
January 13, 2026.
____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Services
Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other
grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).
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