United States Court of Appeals
For the Eighth Circuit
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No. 15-1148
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Patrick Ryan Bray
lllllllllllllllllllll Plaintiff - Appellant
v.
Bank of America
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: July 6, 2015
Filed: August 3, 2015
[Unpublished]
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Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
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PER CURIAM.
Florida financial advisor Patrick Bray appeals the district court’s orders
dismissing his claims against Bank of America based on the anti-tying provision of
the Bank Holding Company Act (BHCA), 12 U.S.C. § 1972, and state defamation
law; denying him leave to amend; and denying his motion for reconsideration.
Having jurisdiction under 28 U.S.C. § 1291, and having granted rehearing of this
court’s opinion and judgment of June 9, 2015, this court now affirms in part, reverses
in part, and remands.
The district court determined that Bray’s BHCA claim should be dismissed
under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6) because Bray
lacked Article III and statutory standing. After carefully reviewing the record and the
parties’ arguments on appeal, see Plymouth Cnty., Iowa v. Merscorp, Inc., 774 F.3d
1155, 1158-59 (8th Cir. 2014) (appellate court reviews standing determinations and
dismissal for failure to state claim de novo), this court reverses the dismissal of the
BHCA claim, and remands for the district court to consider in the first instance
whether Bray has standing in light of Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1391-92 (2010) (holding injured party who was
not direct competitor of defendant may have statutory standing to bring unfair
competition claim), see Sygenta Seeds, Inc. v. Bungee North America, Inc., 773 F.3d
58, 64-65 (8th Cir. 2014) (reversing dismissal of Lanham Act claim, and remanding
for reconsideration in light Lexmark); Hammer v. Sam’s East, Inc., 754 F.3d 492,
498-99 (8th Cir. 2014) (examining statute that created legal right at issue to determine
whether Article III standing existed).
This court affirms the district court’s dismissal of Bray’s state-law claims, see
Plymouth Cnty., 774 F.3d at 1158-59 (standard of review for dismissals under Fed.
R. Civ. P. 12(b)(6)), affirms the district court’s orders in all other respects, see
Mountain Home Flight Serv., Inc. v. Baxter Cnty., Ark., 758 F.3d 1038, 1045-46 (8th
Cir. 2014) (appellate court reviews denial of leave to amend for abuse of discretion);
Miller v. Baker Implement Co., 439 F.3d 407, 414 (8th Cir. 2006) (appellate court
reviews denial of motions under Fed. R. Civ. P. 59(e) or 60(b) for abuse of
discretion), and denies Bank of America’s pending motion to file a supplemental
brief.
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