Cahill v. Bank of America, NA

Filing 9

ORDER signed by Magistrate Judge John F. Moulds on 11/07/11 ORDERING that Plaintiff's 3 request to proceed in forma pauperis is GRANTED; Plaintiff's complaint is DISMISSED; and Plaintiff is granted thirty days from the date of service of this order to file an amended complaint. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIANE CAHILL,
Plaintiff,

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No. CIV 2:11-cv-1688-MCE-JFM (PS)

vs.
BANK OF AMERICA, NA, et al.,
Defendants.

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ORDER
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Plaintiff is proceeding in this action pro se. Plaintiff seeks relief pursuant to and

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has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This

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proceeding was referred to this court by Local Rule 72-302(c)(21).

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Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is

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unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in

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forma pauperis will be granted. 28 U.S.C. § 1915(a).
The federal in forma pauperis statute authorizes federal courts to dismiss a case if

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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in

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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-

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28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless.

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Neitzke, 490 U.S. at 327.

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A complaint, or portion thereof, should only be dismissed for failure to state a

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claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

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of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

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Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

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v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

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complaint under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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This action arises out of a nonjudicial foreclosure of real property located at 209

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Blagdon Court, Roseville, California 95747. Plaintiff’s complaint, filed June 22, 2011, names as

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defendants Bank of America; Reconstruct Company; Mortgage Electronic Registration Systems,

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Inc.; American Home Mortgage Corp; John Norris of Keller Williams Realty South Placer;

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Timothy Geithner, Secretary of the Treasury; and Eric Holder, Attorney General of the United

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States. Plaintiff presents multiple state law claims, including set aside foreclosure claim, usury,

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failure of consideration, breach of contract, ultra vires, indefiniteness of contract,

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unconscionability, fraud, cancellation and breach of trust. Liberally construed, plaintiff also

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states two federal claims: a Civil Racketeer Influenced and Corrupt Organizations Act (“RICO”)

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claim, 18 U.S.C. § 1961–1968, and the Real Estate Settlement Procedures Act (“RESPA”) claim,

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12 U.S.C. § 2607. In addition, plaintiff alleges defendants participated in criminal wrongdoing.

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Plaintiff seeks declaratory relief, damages and injunctive relief.
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The court begins its review of plaintiff’s complaint by noting that it is twenty-

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eight pages long. While replete with citations to statutory and case law, a history of United

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States lending practices and unsubstantiated conclusions, its factual allegations are minimal.

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Thus, the court concludes that the complaint does not contain a short and plain statement as

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required by Federal Rule of Civil Procedure 8(a)(2). Although the Federal Rules adopt a flexible

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pleading policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Furthermore, plaintiff must allege with at least some degree of particularity overt

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acts which defendants engaged in that support plaintiff's claim. Jones, 733 F.2d at 649. The

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complaint fails to identify any acts that would render John Norris liable under any theory of

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liability. Plaintiff’s claims against American Home Mortgage Corp.1 similarly fail.

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Additionally, plaintiff adds Timothy Geithner and Eric Holder as indispensable parties pursuant

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to statute. Plaintiff relies on “46 U.S.C. § 748" in asserting that Geithner is “authorized to pay

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claims and judgments and for the return of property.” Compl. at 9. Plaintiff then relies on “50

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App USC 7, 9 and 32" to argue that Holder is authorized to return property. Id. Neither of these

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provisions, however, are relevant to the instant case. Appendix 748 concerns suits in admiralty

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and Title 50 of the United States Code concerns the role of war and national defense. Because

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there is no other basis for the inclusion of Geithner or Holder, neither are properly named

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defendants.
Finally, it is evident that plaintiff’s RICO claim fails. To properly plead a civil

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RICO claim for damages, a plaintiff must show that defendants, through two or more acts

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constituting a pattern, participated in an activity affecting interstate commerce. E.g., McAnelly

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v. PNC Mortgage, 2011 WL 318575 at *3 (E.D. Cal. Feb.1, 2011). Moreover, Rule 9(b)’s

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heightened pleading requirement “applies to civil RICO fraud claims.” Edwards v. Marin Park,

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American Home Mortgage Corp. is the originator of plaintiff’s home loan. Compl. at

7, ¶ 12.
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Inc., 356 F.3d 1058, 1065-66 (9th Cir. 2004) (citing Alan Neuman Prods., Inc. v. Albright, 862

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F.2d 1388, 1392 (9th Cir. 1989)). Plaintiff’s conclusory allegations here fall well short of the

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Rule 9(b) particularity requirements. Plaintiff fails to provide any substantiating facts to

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illustrate a pattern of racketeering.

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Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

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8(a)(2), the complaint must be dismissed. Plaintiff will however be granted leave to file an

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amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the
jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil

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Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted

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in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis is granted;

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2. Plaintiff's complaint is dismissed; and

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3 Plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Federal Rules of Civil Procedure,

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and the Local Rules of Practice; the amended complaint must bear the docket number assigned

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this case and must be labeled "Amended Complaint"; plaintiff must file an original and two
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copies of the amended complaint; failure to file an amended complaint in accordance with this

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order will result in a recommendation that this action be dismissed.

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DATED: November 7, 2011.

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