Desir v. Walmart, Inc. et al

JENNIFER DESIR,
Plaintiff,
vs.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
§
§
§ 	CIVIL ACTION NO. 4:25-CV-00401
§
WALMART, INC., eta!., 	§
§
Defendants. 	§
ORDER
This Court earlier conditionally dismissed the claims of Plaintiff Jennifer Desir ("Desir" or
"Plaintiff') against Regions Financial Corporation ("Regions" or "Defendant"). See (Doc. No. 30).
Plaintiffs claims at the time did not comply with the Federal Rules of Civil Procedure, but since
she was acting prose, the Court allowed her to replead her case if she did so by the date indicated
in the order.
I.
Desir filed her First Amended Complaint timely. (Doc. No. 32). Regions has filed a Motion
to Dismiss the First Amended Complaint. (Doc. No. 33). Plaintiff responded by asking this Court
to extend the deadline to respond to April 15, 2026-a deadline she did not meet. Ultimately, she
filed a document she styled as a Partial Summary Judgment and Reconsideration, (Doc. No. 35),
which contains a response to Regions' Motion to Dismiss. (Doc. No. 35 at 22-27). The Court will
address in this Order the portions that pertain to Regions.
United States District Court
Southern District of Texas
ENTERED
July 20, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-00401 Document 40 Filed 07/20/26 in TXSD Page 1 of 4

II.
Plaintiffs claims against Regions are grounded in fraud. This Court found Plaintiffs
Original Complaint totally lacked the necessary pleadings to support a claim of fraud and it finds
that Plaintiffs First Amended Complaint is also deficient.
Regions Financial argues, as it did before, that Plaintiff did not plead the circumstances
constituting fraud with particularity, as required by Federal Rule of Civil Procedure 9(b), meaning
Plaintiffs underlying fraud claim and her civil conspiracy to defraud claim should be dismissed.
See (Doc. No. 15 at 13 - 16) ; see also Fed. R. Civ. P. 9(b) ("In alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake." ); US 	ex re l.
Thompson v. Columbia/HCA Healthcare Corp. , 125 F.3d 899 , 903 (5th Cir. 	1997) ("At a
minimum, Rule 9(b) requires that a plaintiff set forth the 'who, what, when, where, and how' of
the alleged fraud. " (quoting Williams v. WMXTech. , Inc ., 112 F.3d 175 , 179 (5th Cir. 1997))).
The Court agrees with Regions Financial that Plaintiffs fraud claim is not sufficiently pled
as required by Rule 9(b ). It does not identify a single misrepresentation, nor does it allege reliance
on any statement by Regions. It should be noted here that Regions Financial-the defendant- 	is a
holding company that does not maintain consumer accounts or issue bank statements. Under Texas
law, " [a] fraud cause of action requires 'a material misrepresentation, which was false, and which
was either known to be false when made or was asserted without knowledge of its truth, which
was intended to be acted upon, which was relied upon, and which caused injury."' Formosa
Plastics Corporation 	USA 	v. 	Presidio 	Engineers & Contractors, 	Inc., 960 S.W.2d 41 , 47
(Tex.1998) (quoting Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281 , 282 (Tex. 1994)).
Plaintiff has failed to adequately plead each of these elements. Thus, Plaintiff does not plead her
fraud claim with sufficient particularity.
2
Case 4:25-cv-00401 Document 40 Filed 07/20/26 in TXSD Page 2 of 4

As a result, Plaintiffs civil conspiracy to defraud claim also fails. Under Texas law, civil
conspiracy is not an independent tort. Agar Corp. v. Electro Circuits Int'!, LLC, 580 S.W.3d 136,
142 (Tex. 2019). Rather, " [c]ivil conspiracy requires an underlying tort that has caused damages."
Id. 	(citing Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)). As such, since Plaintiffs
underlying fraud claim fails, her civil conspiracy claim likewise fails. See Thomas v. Joule
Processing LLC, 2023 WL 8437634, at *6 (S .D. Tex. Dec. 5, 2023) ("[W]hen plaintiffs fail to
state a claim for any underlying tort, their claims for civil conspiracy likewise fail. " (quoting
Tumm el v. Milane, 787 Fed. Appx. 226, 227 (5th Cir. 2019) (unpublished)).
Furthermore, the complaints she includes under the headings of breach of fiduciary duty
and invasion of privacy are also deficient. They certainly do not comply with the requirements of
either Rule 8 or 9 of the Federal Rules of Civil Procedure or the dictates of the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662 (2009) or Bell At!. Corp. v. Twombly, 550 U.S. 544 (2007). Her
claims must be dismissed.
Since this Court has already allowed Desir a chance to replead, the Court finds that a second
chance would be fruitless and therefore will not allow Plaintiff another attempt.
III.
Regions Financial also contends that there is no federal question jurisdiction or diversity
jurisdiction over Plaintiffs claims. Regions Financial is correct that there is no federal question
jurisdiction in this case as Plaintiff brings common law fraud and civil conspiracy to commit fraud
claims-both of which are state law claims, as well as state law claims for invasion of privacy and
breach of fiduciary duty.
Unlike in the Court's prior order, it finds that there is no diversity jurisdiction in this case.
Diversity jurisdiction requires two conditions: (1) the matter in controversy must exceed the sum
3
Case 4:25-cv-00401 Document 40 Filed 07/20/26 in TXSD Page 3 of 4

or value of $75,000, exclusive of interest and costs, and (2) the parties must be citizens of different
states or countries. 28 U.S.C.A. § 1332.
Plaintiff has now actually pleaded a specific amount of damages. In her Original
Complaint, she demanded $15 million dollars. In her First Amended Complaint, she has pleaded
for $861.00 and perhaps an additional $5 .00 refund. (Doc. No. 32 at 12) . On the next page, she
refers to an additional sum of $821.00 but how Regions caused her to lose that sum is anyone ' s
guess. Even if one adds these sums together, it totals less than $2 ,000. There are no federal
claims-only state law claims-and the sum sought is well-below the jurisdiction level of this
Court. "Generally, when a plaintiff demands a specific amount of damages in the complaint, ' the
sum claimed by the plaintiff controls if the claim is apparently made in good faith. "' Berrocal v.
Samsung Elec s. Co ., 2025 WL 3488842, at *3 (5th Cir. Dec. 4, 2025) (quoting St. Paul Mercury
Jndem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938)). Since Plaintiffs Complaint demands a
specific amount of damages well below $75,000, the Court finds that Plaintiff has not alleged a
claim over which this Court has jurisdiction.
Therefore, this case is dismissed.
~
Signed on this the 1..D 	day of July 2026.
Andrew S. Hanen
United States District Judge
4
Case 4:25-cv-00401 Document 40 Filed 07/20/26 in TXSD Page 4 of 4