Land v. Bank of America
Filing
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ORDER GRANTING Application to Proceed in Forma Pauperis 2 ; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Barbara A. McAuliffe on 10/17/16: 30-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK S. LAND,
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Plaintiff,
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BANK OF AMERICA,
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Defendants
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1:16-cv-01494-LJO-BAM
ORDER GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
THIRTY-DAY DEADLINE
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Plaintiff Mark S. Land (“Plaintiff”), proceeding pro se, initiated this action on October 5,
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2016. Plaintiff alleges a violation of the Racketeer Influenced and Corrupt Organizations Act
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(“RICO”), 18 U.S.C. § 1961 et seq., by Defendant Bank of America. (Doc. 1). In conjunction
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with his complaint, Plaintiff filed an application to proceed in forma pauperis. (Doc. 2).
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Request to Proceed without Payment of Fees
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Plaintiff is proceeding pro se and has requested leave to proceed in forma pauperis
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pursuant to Title 28 of the United States Code section 1915(a). Plaintiff has made the showing
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required by section 1915(a), and accordingly, the request to proceed in forma pauperis will be
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granted. 28 U.S.C. § 1915(a).
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Screening
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The Court is required to screen complaints brought by persons proceeding in pro per. 28
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U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is
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frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks
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monetary relief from a defendant who is immune from such relief.
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1915(e)(2)(B)(ii).
28 U.S.C. §
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65
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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge
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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted).
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Pro se litigants are entitled to have their pleadings liberally construed and to have any
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doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th Cir. 2012),
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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive screening, Plaintiff’s claims
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must be facially plausible, which requires sufficient factual detail to allow the Court to
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reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S.
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at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572
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F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not
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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.
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Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.
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Plaintiff’s Allegations
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Plaintiff alleges that the “Defendant did not finalize loan modification as promised,
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wrongful forclosure [sic], racketeering, [intentional] avoidance.” (Doc. 1 at p. 5). Plaintiff
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alleges that on January 1, 2014, the “house was sold, trustee sale, being har[]assed.” (Id. at p. 6).
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Plaintiff seeks an injunction to stop a possible trust deed sale and reversal of the foreclosure.
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Discussion
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Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to
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state a cognizable claim. As Plaintiff is proceeding pro se, he will be given an opportunity to
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amend his complaint. To assist Plaintiff, the Court provides the following pleading and legal
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standards that appear applicable to his claims.
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1. Federal Rule of Civil Procedure 8
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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are
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not. Id.; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.
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Plaintiff’s complaint lacks basic factual information, including what happened, when,
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where and who was involved. If Plaintiff elects to file an amended complaint, he must provide
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sufficient factual information to state a claim for relief that is plausible on its face.
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2. RICO
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Plaintiff appears to assert a violation of the federal RICO statute, which makes it
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“unlawful for any person employed by or associated with any enterprise engaged in, or the
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activities of which affect, interstate or foreign commerce, to conduct or participate, directly or
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indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity
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[.]” 18 U.S.C. § 1962(c). To state a claim under § 1962(c), a plaintiff must allege: “(1) conduct
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(2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, SPRL v. Imrex
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Co., Inc., 473 U.S. 479, 496 (1985). Here, Plaintiff has not alleged any of the necessary
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elements to state a RICO claim.
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3. Wrongful Foreclosure
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Plaintiff also appears to allege a claim for wrongful foreclosure. To state a claim for
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wrongful foreclosure, a plaintiff must allege that (1) the trustee or mortgagee caused an illegal,
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fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage
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or deed of trust; (2) he was prejudiced or harmed; and (3) he tendered the amount of the secured
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indebtedness or was excused from tendering. Lona v. Citibank, N.A., 202 Cal.App.4th 89, 104,
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134 Cal.Rptr.3d 622 (2011); Morgensen v. Downey Sav. and Loan Assoc., No. 5:15-cv-02000-
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HRL, 2016 WL 234430, at *6 (N.D. Cal. Jan. 20, 2016) (same). Here, Plaintiff does not allege
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any facts to state a plausible claim for wrongful foreclosure.
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CONCLUSION AND ORDER
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Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to
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state a cognizable claim. As Plaintiff is proceeding pro se, the Court will provide him an
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opportunity to amend his complaint.
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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended
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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
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the named defendant did that led to the deprivation of Plaintiff’s rights, Iqbal, 556 U.S. at 678-
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79, 129 S.Ct. at 1948-49.
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[sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555
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(citations omitted).
Although accepted as true, the “[f]actual allegations must be
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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.
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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s
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amended complaint must be “complete in itself without reference to the prior or superseded
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pleading.” Local Rule 220.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
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Plaintiff’s complaint is dismissed for failure to comply with Federal Rule of Civil
Procedure 8 and failure to state a cognizable claim;
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2.
Within thirty (30) days from the date of service of this order, Plaintiff shall file a
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first amended complaint; and
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If Plaintiff fails to file an amended complaint in compliance with this order,
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the Court will dismiss this action, with prejudice, for failure to state a claim and to obey a
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court order.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
October 17, 2016
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A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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