Yu v. Wells Fargo Bank, N.A.

Filing 22

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/3/2017 GRANTING 7 Motion to Dismiss. The 1 Complaint is DISMISSED with prejudice; The Clerk of Court shall close this case. CASE CLOSED (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NOLITO DELACRUZ YU,

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Plaintiff,

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v.

No. 2:17-cv-00917 CKD (PS)

ORDER

WELLS FARGO BANK, N.A.,

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Defendant.

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On July 26, 2017, the court held a hearing on defendant Wells Fargo’s motion to dismiss

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this action for failure to state a claim. (ECF No. 7.) Plaintiff appeared pro se, and Adam Vukovic

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appeared telephonically on behalf of defendant. Plaintiff filed an opposition to the motion, and

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defendant filed a reply. (ECF Nos. 14 & 15.) After arguments, the court took the matter under

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submission. The parties have consented to magistrate judge jurisdiction to conduct all

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proceedings in this action.

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I. Allegations
In his complaint, plaintiff alleges that defendant Wells Fargo violated the Racketeer

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Influenced and Corrupt Organizations Act (“RICO”) over many years, swindling plaintiff out of

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money and conspiring with third parties to harm him. He seeks damages in the amount of $2,800

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“illegally withdrawn” from his business checking account, $25,000 for property losses incurred

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when his home and business were burglarized, and $1 million in lost business income. (ECF No.

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1.)

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The complaint alleges as follows: Plaintiff owns a small publishing company in Stockton

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that, for twenty-five years, has published a monthly magazine, The Immigrants. Between 1991

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and 2001, plaintiff had business savings, business checking, and personal savings accounts with

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defendant bank.

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Starting in April 2001, plaintiff noticed that $200 was missing from his business checking

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account every month. Plaintiff closed all his accounts, incurring a hefty penalty. Days after

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closing his accounts, he began receiving notices of insufficient funds. In August 2001, he

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received a letter from a Wells Fargo collection manager stating that he owed the bank $152. In

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September 2001, he received a letter from a Stockton-based collection agency concerning an

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alleged $222 overdraft debt to Wells Fargo. Plaintiff contested these charges with defendant, the

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collection agency, and the State Commissioner of the Department of Financial Institutions. In

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December 2001, he was informed that “a case has been opened in the Customer Assistance Group

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of the Office of the Comptroller of the Currency (OCC).” In January 2002, a Wells Fargo official

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sent him another letter stating that he owed the bank $222. In reviewing his monthly bank

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statements for 2001, plaintiff noted several errors and discrepancies. In February 2002, defendant

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sent him another letter concerning the $222 overdraft.

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On the night of March 2, 2002, plaintiff’s apartment and home office were burglarized.

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Missing items included his two computers and two printers, which he used to publish the

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magazine. Two weeks later, a Wells Fargo official wrote plaintiff that “The overdraft debt of

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$222.00 on your account still remains.” In April 2002, the OCC informed plaintiff they could not

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assist him with his dispute with the bank and suggested he contact an attorney.

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On the night of September 2, 2005, plaintiff arrived home to find his apartment
burglarized again. His two computers and two printers were again missing.
In 2006, plaintiff received a letter from a Florida-based collections agency demanding that

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he pay the $222 allegedly owed to defendant. In 2010, he received a letter from a New York-

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based collection agency, demanding same. Plaintiff received additional collection letters on this
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issue in early 2011. He maintained that he did not owe the money.

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Around this time, plaintiff “experienced at least a dozen unusual incidents.” The tires

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were stolen from his car. His car stereo was stolen in a separate incident. He received many

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harassing and threatening telephone calls, one in the middle of the night in which “an unknown

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caller appeared to be angry and lambasted Plaintiff using obscene, profane and unprintable

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language.” Someone left graffiti near his apartment saying, “We know how to kill you.”

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In February 2011, “weary of the harassment and intimidation he was experiencing,”

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plaintiff “reluctantly decided to pay the alleged overdraft debt.” He sent in a money order in the

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amount of $17.76 as his first payment. He informed state agencies that he was the victim of

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strong-arm tactics by collections agencies. In March 2011, he mailed in a second installment of

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$17.76, informing the agency that he was “making this payment under protest.”

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In November 2015, plaintiff received a letter from defendant in response to his recent

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correspondence with the Consumer Financial Protection Bureau. Defendant’s letter stated that

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they were “reviewing the issues mentioned” and hoped to get back to him shortly.

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Plaintiff cites a 2017 news story about defendant’s alleged business practices. Plaintiff is

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“certain there’s a connection between [this article] and the latest incidents of drive-by shooting in

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Stockton, California,” in which a three-year-old girl was shot and killed.

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Plaintiff filed the instant action in May 2017.
II. Legal Standards

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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it

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must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something

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more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable

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right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp.

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235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads
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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id.

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RICO makes it criminal “to conduct” an “enterprise’s affairs through a pattern of

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racketeering activity.” 18 U.S.C. § 1962(c). A person injured by a RICO violation may bring a

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civil RICO action. § 1964(c). “To state a claim under § 1962(c), a plaintiff must allege (1)

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conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. [Citation.] A

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pattern requires at least two acts of racketeering activity. 18 U.S.C. § 1961(5). ‘Racketeering

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activity’ is any act indictable under several provisions of Title 18 of the United States Code, and

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includes the predicate acts of mail fraud, wire fraud and obstruction of justice.” Sanford v.

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MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010) (internal citations omitted).
Civil RICO claims are subject to a four-year statute of limitations. Rotella v. Wood, 528

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U.S. 549, 553 (2000). In the Ninth Circuit, “the civil RICO limitations period begins to run when

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a plaintiff knows or should know of the injury that underlies his cause of action.” Pincay v.

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Andrews, 238 F.3d 1106, 1109 (9th Cir. 2001).

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III. Discussion

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Defendant asserts that this action is time-barred, as “the conduct complained of is so far

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beyond the four-year statute of limitations . . . that Plaintiff cannot state a claim.” Injuries

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discovered before May 2013 could not give rise to a RICO claim brought in May 2017, and there

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is no basis alleged for equitable tolling.

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Assuming the originating injury was defendant’s imposition of a charge after plaintiff

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closed his accounts, that event occurred in 2001, twelve years too early for the instant claim. All

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subsequent actions by defendant and third-party collection agencies concerning this debt took

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place before February 2011, when plaintiff began making payments on the debt. The only timely

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allegation concerns defendant’s implied connection to a drive-by shooting in Stockton in 2017.

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In addition to being time-barred, plaintiff’s allegations do not fulfill the elements of a

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RICO claim. There is no alleged “racketeering activity” or pattern of such conduct. Putting aside

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the parties’ interactions about the debt, plaintiff’s contention that defendant was involved in

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stealing his tires, robbing his house, painting graffiti on his wall, making threatening phone calls,
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and orchestrating a drive-by shooting, is entirely speculative and far-fetched. Such allegations do

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not plausibly link defendant to any unlawful conduct.

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In opposition to the motion, plaintiff points out he is a pro se plaintiff whose pleadings

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should be liberally construed. He alleges that he “continues to suffer” from defendant’s infliction

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of financial harm. Plaintiff reiterates his claim that defendant is “engaged in a lucrative

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clandestine criminal activity – an activity that involves murder for profits.” He alleges that some

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of defendant’s customers have “mysteriously become victims of drive-by shootings and other

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suspicious deaths.” He asserts that customers “do not realize that opening up a Wells Fargo

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account could, sometimes, cost someone to lose his or her own life.”

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Based on the foregoing, the undersigned concludes that defendant’s motion to dismiss has

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merit. As plaintiff’s claims do not appear curable by amendment, the court will dismiss the

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complaint with prejudice.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Defendant’s motion to dismiss (ECF No. 7) is granted;

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2. The complaint (ECF No. 1) is dismissed with prejudice; and

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3. The Clerk of Court shall close this case.

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Dated: August 3, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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