King v. Earnhardt's Gilbert Dodge Incorporated

Filing 44

ORDER - IT IS ORDERED that Plaintiff's First Amended Complaint, doc. 7 , is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without further leave to amend for failure to state a claim upon which relief can be granted. IT IS FURTHER OR DERED that all pending motions in this action are DENIED as moot. IT IS FURTHER ORDERED that this action is dismissed and the Clerk of Court is kindly directed to enter judgment accordingly. (See document for further details). Signed by Magistrate Judge Lawrence O Anderson on 7/1/14. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ted King,

10
11
12

Plaintiff,

Earnhardt’s Gilbert Dodge, Inc.,
Defendant.

14

16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER

v.

13

15

No. CV-14-106-PHX-LOA

This matter is before the Court on pro se Plaintiff’s First Amended Complaint.
(Doc. 7)
On February 3, 2014, the Court screened the original Complaint in this matter
pursuant to 28 U.S.C. § 1915(e)(2). (Doc. 6) The Court dismissed the Complaint and
granted Plaintiff leave to file an amended complaint by February 21, 2014. (Id.) The
Court instructed Plaintiff that in the amended complaint, he must “make clear his
allegations in short, plain statements with each claim for relief identified by in separate
sections.” (Id. at 5) In addition the Court explained that “each claim of an alleged
violation must be set forth in a separate count and the factual allegations must be
separately numbered” and the “amended complaint must conform to the requirements of
Rules 8(a) and (d)(1) of the Federal Rules of Civil Procedure.” (Id. at 5-6) To state a a
claim upon which relief may be granted, “a complaint [or amended 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, 677 (2009) (quoting Bell Atl.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating Conley v. Gibson, 355 U.S. 41
(1957)). The Court warned Plaintiff that if he filed an amended complaint that failed
comply with the Court’s instructions, the action would be dismissed pursuant to 28
U.S.C. § 1915(e) or Rule 41(b) of the Federal Rules of Civil Procedure.” (Id. at 6)
Two days later, on February 5, 2014, Plaintiff filed a verified First Amended
Complaint (“the amended complaint”). (Doc. 7) In the amended complaint, Plaintiff
alleges one claim for relief that he labels “TILA.” The Court assumes Plaintiff is
referring to the Truth in Lending Act, which he references in the jurisdictional section of
the amended complaint. (Doc. 7 at 1) The Truth in Lending Act (“TILA”) and its
accompanying regulations require various disclosures in lending agreements. See 15
U.S.C. §§ 1601–1616, 12 C.F.R. pt. 226. The TILA confers a statutory “right of action
only on a borrower in a suit against a borrower’s creditor.” Talley v. Deutsche Bank Trust
Co., 2008 WL 4606302, at *2 (D.N.J. Oct. 15, 2008).
Plaintiff, who has filed six lawsuits in the District Court of Arizona since 2010,
alleges in his claim for relief that “the contract between the parties” is not valid because
the “amounts indicated in the financing statement and security agreement are not
consistent with the Offer and Acceptance Contract signed and approved by both
parties.” (Doc. 7 at 2) (emphasis in original). Plaintiff does not provide a copy of the
contract to assist the Court in understanding his claim and fails to provide any other
information about the contract he is disputing, except to say that the “invalid contract
compelled monthly payments that were far in excess of the Offer and Acceptance
Contract” that he “only paid because he was compelled by the financing statement and
security agreement to do so.” (Id. at 3) (emphasis in original). Despite the “TILA” label,
Plaintiff does not include any allegations related to the TILA. The only citation to legal
authority in the claim for relief is Arizona Revised Statute (“A.R.S.”) § 47-3308, which
pertains to proof of signatures.
The Court finds that Plaintiff’s conclusory allegations are insufficient to state a
claim under the TILA. Plaintiff fails to identify which provision of the TILA Defendant
-2-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

allegedly violated. He also fails to adequately identify the “contract” at issue, or to
describe the Defendant’s conduct that gave rise to the alleged TILA violation. Such
conclusory allegations are insufficient to state a claim under the TILA, even considering
Plaintiff’s pro se status. See Dominick v. Chase Home Fin. LLC, 2012 WL 78886, at *2
(D. Ariz. Jan. 11, 2012) (dismissing pro se plaintiff’s TILA claims as conclusory); Smith
v. Aurora Loan Servs, 2010 WL 3504899, at *3 (E.D. Cal. Sept. 7, 2010) (finding that
pro se plaintiff’s conclusory allegations did not state a claim under TILA). The Court
further finds that Plaintiff’s conclusory allegations fail to state a claim for relief on any
other basis.
While pro se Plaintiff’s pleadings are held to a less stringent standard than those
prepared by attorneys, Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (citing Haines
v. Kerner, 404 U.S. 519, 520-21 (1972)), pro se litigants must “abide by the rules of the
court in which he litigates.” Carter v. Commissioner of Internal Revenue, 784 F.2d 1006,
1008 (9th Cir. 1986). Pro se litigants “must meet certain minimal standards of pleading.”
Ticktin v. C.I.A., 2009 WL 976517, at *4 (D. Ariz. April 9, 2009) (citation omitted). “A
pro se complaint that . . . fails to plainly and concisely state the claims asserted . . . falls
short of the liberal and minimal standards set out in Rule 8(a).” Id. (citation and internal
quotation marks omitted); see also Vega v. JPMorgan Chase Bank, N.A., 654 F.Supp.2d
1104, 1111 (E.D. Cal. 2009) (holding that the Rule 8 requirement “applies to good claims
as well as bad, and is the basis for dismissal independent of Rule 12(b)(6)”) (citation
omitted).
Because the minimal facts alleged in the amended complaint against Defendant
Earnhardt’s Gilbert Dodge, Inc. “do not permit the court to infer more than the mere
possibility of misconduct, the [amended] [c]omplaint has alleged - but it has not shown that [Plaintiff] is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2))
(brackets and internal quotation marks omitted). The Court finds the amended complaint
fails to adequately plead a plausible claim against Defendant. Because Plaintiff has not
cured the deficiencies expressly outlined in the Court’s February 3, 2014 Order, and his
-3-

1
2
3
4
5
6
7
8
9
10
11

amended complaint fails to state a claim upon which relief could be granted, Plaintiff’s
First Amended Complaint and this action will be dismissed.
Accordingly,
IT IS ORDERED that Plaintiff’s First Amended Complaint, doc. 7, is
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without further leave to amend
for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that all pending motions in this action are
DENIED as moot.
IT IS FURTHER ORDERED that this action is dismissed and the Clerk of Court
is kindly directed to enter judgment accordingly.
DATED this 1st day of July, 2014.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-