Pshevlozky v. Bank of America, N.A.

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 7/3/2012 RECOMMENDING that Defendant's 8 motion to dismiss be granted. This action be dismissed with prejudice. Motion referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OLGA PSHEVLOVZKY,

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Plaintiff,

No. 2:12-cv-0667 JAM GGH PS

vs.
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BANK OF AMERICA, N.A.
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FINDINGS & RECOMMENDATIONS
Defendant.

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/

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This action was referred to the undersigned pursuant to Local Rule 302(c)(21).

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Plaintiff is proceeding in pro se, having filed this action on March 16, 2012. Before this court

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had the opportunity to screen the complaint and rule on the in forma pauperis application,

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defendant filed a motion to dismiss on April 6, 2012. Plaintiff did not file an opposition. By

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order filed May 31, 2012, the hearing on the motion was vacated due to plaintiff’s failure to file

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an opposition.

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Although the court liberally construes the pleadings of pro se litigants, they are

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required to adhere to the rules of court. As set forth in the district court’s order requiring status

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report, failure to obey local rules may not only result in dismissal of the action, but “no party will

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be entitled to be heard in opposition to a motion at oral arguments if opposition has not been

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timely filed by that party.” E. D. Cal. L. R. 230(c). More broadly, failure to comply with the

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Local Rules or “any order of the court may be grounds for imposition . . . of any and all sanctions
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authorized by statute or Rule or within the inherent power of the Court.” E. D. Cal. L. R. 110;

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see also E. D. Cal. L. R. 183 (requiring compliance with the Local and Federal Rules by pro se

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litigants).

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As plaintiff failed to file an opposition, defendant’s motion is considered

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unopposed. Furthermore, the court has reviewed the motion to dismiss and finds that it has

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merit. The only federal claims in the complaint are for violation of the Home Affordable

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Modification Program (“HAMP”) and the False Claims Act. There is no private right of action

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under HAMP. Phipps v. Wells Fargo Bank, N.A., 2011 WL 302803, *9 (E.D. Cal. Jan. 27,

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2011). The False Claims Act provides that a person who “knowingly presents, or causes to be

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presented, to an officer or employee of the United States Government ... a false or fraudulent

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claim for payment or approval ... is liable to the United States Government for a civil penalty of

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not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the

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Government sustains because of the act of that person....” 31 U.S.C. § 3729(a). Plaintiff has not

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alleged that defendant Bank of America submitted a false claim to the United States Government.

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The state law claims should be dismissed where there are no federal claims

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remaining. This court declines to exercise supplemental jurisdiction over plaintiff’s possible

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state law claims. See 28 U.S.C. § 1367(c)(3) (The district courts may decline to exercise

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supplemental jurisdiction over a claim ...if – the district court has dismissed all claims over

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which it has original jurisdiction”).

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Accordingly, IT IS RECOMMENDED that:

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1. Defendant’s motion to dismiss, filed April 6, 2012, (dkt. no. 8), be granted.

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2. This action be dismissed with prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, any party may

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file written objections with the court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge”s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven (7) days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: July 3, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Pshevlovzky0667.fr.wpd

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