Cooley v. Wells Fargo Bank N.A. et al

Filing 7

ORDER AND ORDER TO SHOW CAUSE signed by Magistrate Judge Carolyn K. Delaney on 1/25/16 ORDERING that no later than February 11, 2016, plaintiff shall: Show cause why this action should not be dismissed for lack of subject matter jurisdiction; Su bmit the probate letters of administration issued by the Solano County Superior Court; Obtain counsel; and Show cause why this action is not barred by the statute of limitations. Failure to comply with this order shall result in a recommendation that the action be dismissed. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDERICK MARC COOLEY,

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Plaintiff,

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No. 2:16-cv-0113 JAM CKD PS

v.

ORDER AND

WELLS FARGO BANK N.A.,

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ORDER TO SHOW CAUSE

Defendant.

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Plaintiff, as the purported administrator of the estate of Frederick Grant Cooley, is

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proceeding in this action pro se and in forma pauperis.1 The federal in forma pauperis statute

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authorizes federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to

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state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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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. Neitzke,

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490 U.S. at 327.

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The District Court granted plaintiff’s application to proceed in forma pauperis by minute order
entered January 20, 2016. ECF No. 4.
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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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The complaint does not allege a basis for subject matter jurisdiction. The federal courts

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are courts of limited jurisdiction. In the absence of a basis for federal jurisdiction, plaintiff’s

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claims cannot proceed in this venue. Because there is no basis for federal subject matter

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jurisdiction evident in the complaint, plaintiff will be ordered to show cause why this action

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should not be dismissed. Failure to allege a proper basis for subject matter jurisdiction will result

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in a recommendation that the action be dismissed.

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Plaintiff alleges this action is brought on behalf of the estate of Frederick Grant Cooley.

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Plaintiff asserts that he was granted probate letters of administration on July 17, 2015 by the

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Solano County Superior Court. Plaintiff will be directed to submit the letters of administration to

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this court for review of the propriety of plaintiff’s claim of the right to bring this action.

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Plaintiff is prosecuting this case in propria persona on behalf of an estate. Plaintiff,

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however, also alleges within the complaint that the heirs of the Estate of Essex Cook have a claim

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against the Estate of Frederick Grant Cooley. As such, plaintiff may not proceed in this action

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pro se and must obtain counsel in order to prosecute this action. See Pridgen v. Andresen, 113

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F.3d 391, 393 (2nd Cir. 1997); see also Jones v. Corr. Med. Servs., 401 F.3d 950, 951-52

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(8th Cir. 2005) (non-attorney administrator of decedent’s estate may not proceed pro se on behalf

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of estate).

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Plaintiff alleges fraud on the part of defendants arising out of a reverse mortgage entered

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into by Frederick Grant Cooley in 2005. Any claim on behalf of the estate would be long time

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barred under the applicable statute of limitations. Although plaintiff asserts that he did not

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personally learn of the fraud until July 17, 2015, plaintiff does not explain why his lack of

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knowledge can be attributed to Frederick Grant Cooley, for whose estate the present action is

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brought.

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Accordingly, IT IS HEREBY ORDERED that no later than February 11, 2016, plaintiff
shall:

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1. Show cause why this action should not be dismissed for lack of subject matter
jurisdiction;

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2. Submit the probate letters of administration issued by the Solano County Superior
Court;

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3. Obtain counsel; and

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4. Show cause why this action is not barred by the statute of limitations.

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Failure to comply with this order shall result in a recommendation that the action be

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dismissed.

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Dated: January 25, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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