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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

AUTHOR J. MANNING, JR.

 Plaintiff,

v.

MERRILL LYNCH, BANK OF 

AMERICA,

 Defendant.

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CASE NO. 6:23-CV-00475-JCB-KNM

REPORT & RECOMMENDATION OF

THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant Merrill Lynch, Pierce, Fenner & Smith Incorporated’s 

Motion to Dismiss. Doc. No. 6.

1 Defendant Merrill seeks dismissal of the claims brought by

Plaintiff Author J. Manning, Jr., pursuant to Federal Rule of Civil Procedure 12(b)(5) and 

12(b)(6). Having considered the parties’ pleadings and the relevant law, the Court 

RECOMMENDS Defendant’s Motion to Dismiss (Doc. No. 6) be GRANTED and the case be 

DISMISSED WITH PREJUDICE. The Court further RECOMMENDS that Plaintiff’s Motion 

for Summary Judgment (Doc. No. 7) be DENIED WITHOUT PREJUDICE and that Plaintiff’s 

Motions to Appoint Counsel (Doc. No. 14, Doc. No. 16) be DENIED.

BACKGROUND

Plaintiff, proceeding pro se, initiated this lawsuit in the 4th Judicial District Court of Rusk 

County, Texas on May 9, 2023.2 On August 14, 2023, Plaintiff filed a document in state court 

that stated: “Citations are requested issued by Certified Mail . . . to the Defendant : Merrill Lynch 

1 Defendant files the Motion to Dismiss as “Merrill Lynch, Pierce, Fenner & Smith Incorporated” because the 

named entity “Merrill Lynch, Bank of America” does not exist. Doc. No. 6 at 1 n.1. 2 Doc. No. 2-3.

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Bank Bank [sic] of America At Address: Two World Financial Center, 250 Vesey Street North 

Tower;, [sic] New York, 10080, NY.”3 The state court clerk issued citation to “Merrill Lynch, 

Bank of America” and addressed it pursuant to Plaintiff’s August 14th filing.4

Defendant removed the case to this Court on September 21, 2023.5 Defendant filed its 

Motion to Dismiss on September 28, 2023.6 On October 10, 2023, Plaintiff filed a document 

entitled “Motion for Summary of Judgment, Response to the Defendant’s Motion for Removal 

and the Defendant’s Motion to Dismiss.”7 Plaintiff’s “Motion for Summary of Judgment” is 

indistinguishable from the portions of his filing comprising his Response to Defendant’s Motion 

to Dismiss.

Plaintiff alleges in the Complaint that he is the original founder and owner of Merrill and 

that he “used [his] own money titles and logos to build the Bank.”8 He states he “[has] lost 

contact with the bank and ownership has not been updated for many years.”9 He also contends 

the merger between Merrill and “another bank company” was an “unauthorized transaction.”10

Although Plaintiff’s precise cause of action is not clear, he states “I am Pursuing the return of 

Ownership of the Business the Bank Merrill Lynch and the return of earnings, assets, money 

involved in any unauthorized transaction. Additional relief in the amount of $500,000,000.”11

Liberally construed, this appears to be a claim for conversion. 

3 Doc. No. 6-1. 4 Doc. No. 2-4. 5 Doc. No. 2. 6 Doc. No. 6.

7 Doc. No. 7.

8 Doc. No. 4 at 1.

9 Doc. No. 4 at 1.

10 Doc. No. 4 at 2. 11 Doc. No. 4 at 2.

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Defendant moves to dismiss Plaintiff’s Complaint on two independent grounds: first, 

based on insufficient service of process under Federal Rule 12(b)(5), and second, based on 

failure to state a claim under Federal Rule 12(b)(6).

DEFENDANT’S MOTION TO DISMISS

I. Standard of Review

a. Insufficient service of process under Federal Rule 12(b)(5)

Rule 12(b)(5) authorizes a party to file a motion to dismiss for insufficient service of 

process. FED. R. CIV. P. 12(b)(5). A motion to dismiss pursuant to Rule 12(b)(5) “turns on the 

legal sufficiency of the service of process,” and “[t]he party making service has the burden of 

demonstrating its validity when an objection to service is made.” Holly v. Metro. Transit Auth., 

213 F. App'x 343, 344 (5th Cir. 2007). Normally, courts resort to dismissal only after multiple 

chances were given for the plaintiff to properly serve the defendant. Coleman v. Carrington 

Mortg. Servs., LLC, No. 4:19-CV-231, 2021 WL 1725523, at *3 (E.D. Tex. Apr. 12, 2021), 

report and recommendation adopted, No. 4:19-CV-231, 2021 WL 1721706 (E.D. Tex. Apr. 30, 

2021); Bowling v. Childress-Herres, No. 4:18-CV-610, 2019 WL 4463450, at *6 (E.D. Tex. 

Aug. 7, 2019), report and recommendation adopted, No. 4:18-CV-610, 2019 WL 4451122 (E.D. 

Tex. Sept. 17, 2019).

b. Failure to state a claim under Federal Rule 12(b)(6)

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 

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678 (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Id.

Courts must construe the pleadings of pro se litigants liberally. Andrade v. Gonzales, 459 

F.3d 538, 543 (5th Cir. 2006). However, “such a liberal construction does not require that the 

Court or a defendant create causes of action where there are none.” Smith v. CVS Caremark 

Corp., 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013). Even with pro se litigants, 

“conclusory allegations or legal conclusions masquerading as factual conclusions,” are not 

sufficient for a well-pleaded complaint. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th 

Cir. 2002) (quoting S. Christian Leadership Conference v. Supreme Court of State of La., 252 

F.3d 781, 786 (5th Cir. 2001)). 

Courts may also dismiss with prejudice “claims that are clearly baseless, including claims 

describing fantastical or delusional scenarios.” Starrett v. Dep’t of Def., 763 Fed.Appx. 383, 383-

84 (5th Cir. 2019) (citation and quotation marks omitted). Indeed, dismissal “is appropriate when 

the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there 

are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 

33 (1992); see, e.g., Starrett, 763 Fed.Appx. at 384 (dismissing with prejudice a complaint based 

on “outlandish claims of near-constant surveillance, theft of intellectual property, and painful 

remote communication using nonexistent technology”).

II. Analysis 

a. Insufficient Service of Process

This Court looks to the Texas Rules of Civil Procedure to determine whether service was 

properly made prior to removal. Freight Terminals, Inc. v. Ryder Sys., Inc., 461 F.2d 1046, 1052 

(5th Cir. 1972) (stating that a district court must look to state law to ascertain whether service 

was properly made prior to removal). Texas law specifies that service of process must be served 

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on the president, vice president, or registered agent of a corporation. See Tex. Bus. Orgs. Code 

§§ 5.201(a)–(b), 5.255. 

Here, Plaintiff has failed to serve a registered agent, president, or vice president of 

Defendant Merrill, as required to effectuate service of process under the Texas Rules of Civil 

Procedure. Plaintiff requested citations generically addressed to “Merrill Lynch Bank Bank [sic] 

of America” at “Two World Financial Center, 250 Vesey Street North Tower, New York, 10080, 

NY.”12 Although Defendant’s headquarters were previously located at 250 Vesey Street (in an 

office building named Four World Financial Center), Defendant vacated these offices in 2022.13

Defendant asserts that there was no registered agent, president, or vice president of Merrill 

located at 250 Vessey Street at the time summons was issued.14 Defendant further asserts that 

service of process was accepted by a mailroom employee of Four World Financial Center.15 A 

mailroom employee cannot accept service on Merrill’s behalf under Texas law. 

“The Court rarely dismisses a case due to the failure to properly serve a defendant” and 

“[o]n the occasions where the Court has granted dismissal for improper service, it was only after 

multiple chances were given.” Coleman, 2020 WL 4723174, at *5 (internal quotation marks 

omitted). However, in this case Defendant also moves to dismiss under Rule 12(b)(6). The 

motion to dismiss should be granted on 12(b)(6) grounds for the reasons discussed below. 

Therefore, dismissal without prejudice under Rule 12(b)(5) is unnecessary. Coleman v. Bank of 

New York Mellon, 969 F. Supp. 2d 736, 746–54 (N.D. Tex. 2013) (considering arguments for 

dismissal under Rule 12(b)(6) even though dismissal under Rule 12(b)(5) was proper).

12 Doc. No. 6-1. 13 Doc. No. 6 at 8. 14 Doc. No. 6 at 8. 15 Doc. No. 6 at 8; Doc. No. 6-2 at 1.

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b. Failure to State a Claim

Defendant asserts that, in addition to being dismissed for insufficient service of process, 

Plaintiff’s complaint should also be dismissed for failure to state a claim.16 Defendant states 

there are multiple issues with the complaint: (1) Defendant cannot readily discern what legal 

claim(s) Plaintiff seeks to advance in the first instance; (2) to the extent that Plaintiff attempts to 

assert a claim for conversion, the complaint fails to adequately plead conversion; and (3) 

Plaintiff’s central factual allegations are easily refuted with judicially noticeable facts.17

Plaintiff’s complaint does not articulate a coherent legal claim that satisfies Rule 

12(b)(6). Plaintiff’s pleadings are entitled to more lenient scrutiny than pleadings drafted by 

lawyers because he appears pro se. Andrade, 459 F.3d at 543. However, even under the most 

liberal construction, the only cause of action the Court can discern is a possible claim for 

conversion. This is based on Plaintiff’s statement in the complaint that he is “[p]ursuing the 

return of Ownership of the Business the Bank Merrill Lynch and the return of earnings, assets, 

money involved in any unauthorized transaction. Additional relief in the amount of 

$500,000,000.”18

The Court agrees with Defendant that, to the extent Plaintiff attempts to assert a claim for 

conversion, the complaint fails to adequately plead a conversion claim. Under Texas law, a 

plaintiff may only assert a conversion claim related to tangible, physical objects. Real Est. 

Innovations, Inc. v. Houston Ass'n of Realtors, Inc., 422 F. App'x 344, 350 (5th Cir. 2011). 

Plaintiff’s alleged ownership rights in Merril are not a tangible, physical object and therefore 

cannot be the subject of a conversion claim. The “return of earnings, assets, [and] money 

16 Doc. No. 6 at 9. 17 Doc. No. 6 at 9–12. 18 Doc. No. 4 at 2. 

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involved in any unauthorized transaction” is also not the proper subject of a conversion claim.19

Actions for conversion of money are available in Texas only where “money is (1) delivered for 

safekeeping; (2) intended to be kept segregated; (3) substantially in the form in which it is 

received or an intact fund; and (4) not the subject of a title claim by the keeper.” In re TXNB 

Internal Case, 483 F.3d 292, 308 (5th Cir. 2007) (quoting Edlund v. Bounds, 842 S.W.2d 719, 

727 (Tex.App.—Dallas 1992, writ denied)). Plaintiff’s complaint does not allege any of these

elements necessary to state a claim for conversion of money under Texas law.

Plaintiff’s central allegation can be refuted with judicially noticeable facts. Plaintiff 

claims to be an original founder and owner of Merrill. The only fact Plaintiff asserts to establish 

this is that “[t]he Business Ownership is Originally Registered by the Plaintiff in the Plaintiff’s 

name at the time Author Manning II or Jr.”20 To refute this allegation, Defendant points to 

Merrill’s Delaware Certificate of Incorporation and states that “Merrill was originally 

incorporated in Delaware in 1958 as ‘Merrill Lynch, Pierce, Fenner & Smith Incorporated’ by 

M. W. McCarthy, J. E. Thomson, and W. A. Forrester—not by Plaintiff and not in the Plaintiff’s 

name.”21

“It is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of 

public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007). Merrill’s Delaware 

Certificate of Incorporation bears a government seal or signature, and its accuracy cannot be 

reasonably questioned. Therefore, this Court can take judicial notice of the Certificate of 

Incorporation. See In re Xtreme Power Inc., 563 B.R. 614, 631 (Bankr. W.D. Tex. 2016) (taking 

judicial notice of Certificate of Incorporation filed with the Delaware Secretary of State because 

it bore a governmental seal or signature and its accuracy could not be reasonably questioned).

19 Doc. No. 4 at 2. 20 Doc. No. 4 at 2. 21 Doc. No. 6 at 12; Doc. No. 6-4.

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The 1958 Delaware Certificate of Incorporation successfully refutes Plaintiff’s central 

allegation—that Merrill was originally “registered . . . in the Plaintiff’s name.”22 Plaintiff’s 

response to Merrill’s motion to dismiss does not address the certificate of incorporation or any of 

Merrill’s other arguments for dismissal.

“When a plaintiff's complaint fails to state a claim, a district court generally should 

provide the plaintiff at least one chance to amend the complaint under Rule 15(a) before 

dismissing the action with prejudice.” Newell v. U.S. Bank Trust Nat'l Ass'n, No. H-13-0865, 

2013 WL 2422660, at *2 (S.D. Tex. June 3, 2013) (citing Great Plains Trust Co. v. Morgan 

Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)). However, giving a plaintiff an 

opportunity to amend is not necessary if he has pleaded his “best case,” such that an amended 

claim would remain frivolous. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). An 

opportunity to amend is also “unnecessary in cases where the facts alleged are ‘fantastic or 

delusional scenarios’ or the legal theory upon which a complaint relies is ‘indisputably 

meritless.’” Eason v. Thaler, 14 F.3d 8, 8–9 & n.5 (5th Cir. 1994).

Even if Plaintiff’s complaint is given the most deferential review, it is highly unlikely 

that, given the opportunity, Plaintiff could allege viable legal claims. If allowed to amend his 

pleadings, Plaintiff would be incapable of manufacturing a legally cognizable claim and would 

waste further judicial resources. This is apparent in the response filed by Plaintiff, which is as 

fragmented and as difficult to decipher as Plaintiff’s original complaint.23

Plaintiff’s response fails to defend any of his claims and does not address any of the 

arguments made by Merrill in its motion to dismiss. Plaintiff appears to use his response to make 

new allegations that Merrill “defamed the Plaintiff of his original ownership and achievements” 

22 Doc. No. 4 at 2. 23 See Doc. No. 7.

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and “[v]iolated the employee contract agreement.”24 To the extent Plaintiff attempts to raise any 

new claims in his response, the Court notes that it is “wholly inappropriate to use a response to a 

motion to dismiss to essentially raise a new claim for the first time.” Diamond Beach Owners 

Ass'n v. Stuart Dean Co., No. 3:18-CV-00173, 2018 WL 7291722, at *4 (S.D. Tex. Dec. 21, 

2018), report and recommendation adopted, No. 3:18-CV-00173, 2019 WL 245462 (S.D. Tex. 

Jan. 17, 2019). Because Plaintiff has pleaded his “best case” and an amended claim would 

remain frivolous, the Defendant’s motion to dismiss on 12(b)(6) grounds should be granted and 

the Plaintiff’s complaint should be dismissed with prejudice.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Under Rule 56, “[a] party may move for summary judgment, identifying each claim or 

defense—or the part of each claim or defense—on which summary judgment is sought. FED. R. 

CIV. P. 56(a). “[I]n the Fifth Circuit, courts have discretion to deny a motion for summary 

judgment as premature.” George v. Go Frac, LLC, No. 15-cv-943, 2016 WL 94146, at *3 (W.D. 

Tex. Jan. 7, 2016) (citing Gabarick v. Laurin Mar. (Am.), Inc., 406 F. App'x 883, 890 (5th Cir. 

2010); Sunbelt Sav., FSB Dall., Tex. v. Montross, 923 F.2d 353, 358 (5th Cir. 1991)). “[T]he 

Supreme Court has made clear that the granting of summary judgment is limited until there has 

been ‘adequate time for discovery.’” George, 2016 WL 94146, at *3 (W.D. Tex. Jan. 7, 2016) 

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

On October 10, 2023, Plaintiff filed the document entitled “Motion for Summary of 

Judgement, Response to the Defendant’s Motion for Removal and the Defendant’s Motion to 

Dismiss.”25 Discovery has not commenced in this case, and no scheduling order has been issued.

Therefore, granting the Plaintiff’s Motion for Summary Judgment at this stage would be 

24 Doc. No. 7 at 3. In addition, Plaintiff’s response identifies “Merrill Lynch” and “Bank of America” as two 

separate defendants for the first time. Id. 25 Doc. No. 7.

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premature. Additionally, Plaintiff’s Motion for Summary Judgment should be denied because 

Plaintiff does not identify any claim on which his Motion for Summary Judgment rests pursuant 

to Federal Rule of Civil Procedure 56. Plaintiff has not attached or cited to any documents, 

affidavits, or other evidence in his Motion for Summary Judgment. “[A] party seeking summary 

judgment always bears the initial responsibility of informing the district court of the basis for its 

motion, and identifying those portions of [the record] which it believes demonstrate the absence 

of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

Accordingly, to the extent that Plaintiff seeks summary judgment review, this request should be 

denied without prejudice.

PLAINTIFF’S MOTIONS TO APPOINT COUNSEL

Plaintiff has filed two separate motions to appoint counsel.26 The appointment of counsel 

in a civil case is a privilege and not a constitutional right. Lopez v. Reyes, 692 F.2d 15, 17 (5th 

Cir. 1982). Appointment of counsel for a civil litigant rests within the sound discretion of the 

trial court. See id. Plaintiff is not entitled to appointed counsel in this case. His motions to 

appoint counsel do not show why this case presents exceptional circumstances or why counsel is 

necessary in this case to present meritorious issues to the Court. See id. Both of Plaintiff’s 

motions to appoint counsel should be denied. 

CONCLUSION

Based on the foregoing, the Court RECOMMENDS that Defendant’s Motion to Dismiss 

(Doc. No. 6) be GRANTED and that Plaintiff’s claims be DISMISSED WITH PREJUDICE. 

The Court further RECOMMENDS that Plaintiff’s Motion for Summary Judgment (Doc. No. 7) 

be DENIED WITHOUT PREJUDICE and that Plaintiff’s Motions to Appoint Counsel (Doc. 

No. 14, Doc. No. 16) be DENIED.

26 Doc. No. 14; Doc. No. 16.

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Within fourteen (14) days after service of the magistrate judge's report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). In order 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 party from appealing the 

unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by 

the district court, except upon grounds of plain error, provided that the party has been served 

with notice that such consequences will result from a failure to object. See Douglass v. United 

Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other 

grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).

So ORDERED and SIGNED this 17th day of January, 2024.

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