Johnson et al v. PNC Mortgage & Wells Fargo

Filing 36

ORDER by Judge Edward M. Chen Granting Defendants' 32 35 Motions to Dismiss. (emcsec, COURT STAFF) (Filed on 1/9/2012) (Additional attachment(s) added on 1/9/2012: # 1 AMENDED CERTIFICATE OF SERVICE) (emcsec, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MAVIS FELICIEN,

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For the Northern District of California

United States District Court

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No. C-11-2388 EMC

Plaintiff,
v.

ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS

PNC MORTGAGE & WELLS FARGO, et
al.,

(Docket Nos. 32, 35)

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Defendants.
___________________________________/

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Previously, the Court issued an order granting Defendants PNC Bank, National Association

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and Wells Fargo Bank, N.A.’s motions to dismiss the first amended complaints of Plaintiffs Ronald

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Johnson and Mavis Felicien.1 See Docket No. 28 (order). While the Court dismissed Mr. Johnson’s

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claims with prejudice, it gave Ms. Felicien an opportunity to amend her complaint. The Court

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specifically advised Ms. Felicien that a failure to remedy the deficiencies identified by the Court

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could lead to a dismissal with prejudice.

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On August 3, 2011, Ms. Felicien filed an amended complaint. See Docket No. 31 (amended

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complaint). Thereafter, Defendants filed the currently pending motions to dismiss. In their motions,

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Defendants ask for dismissal of each of the claims asserted, and with prejudice. Having considered

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the papers submitted, as well as all other evidence of record, the Court hereby GRANTS

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Defendants’ motion but shall give Ms. Felicien one final opportunity to amend her complaint.

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Defendants were erroneously sued as PNC Mortgage and Wells Fargo.

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I.
A.

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DISCUSSION

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the

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failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to

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dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks

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Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court

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must take all allegations of material fact as true and construe them in the light most favorable to the

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nonmoving party, although “conclusory allegations of law and unwarranted inferences are

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insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.
2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough

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For the Northern District of California

United States District Court

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facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see

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also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “The plausibility standard is not akin to

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a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted

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unlawfully.” Iqbal, 129 S. Ct. at 1949.

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B.

Claims for Fraud, Negligence, and Professional Negligence/Malpractice

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In the new complaint, Ms. Felicien asserts claims for fraud, negligence, and professional

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malpractice, just as she did in her prior complaint. In fact, the claims for fraud, negligence, and

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professional malpractice as stated in the current complaint are exactly the same as the claims for

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fraud, negligence, and professional malpractice as stated in the prior complaint. The Court therefore

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grants Defendants’ motions to dismiss with respect to these claims for the reasons previously stated

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in its order of October 5, 2011. See Docket No. 28 (order). Moreover, because Ms. Felicien has

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made no attempt to address the deficiencies identified by the Court in its October 5 order, the

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dismissal of these claims shall be with prejudice – i.e., Ms. Felicien is barred from reasserting these

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claims in any amended complaint in this case. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000) (stating that, “in dismissing for failure to state a claim under Rule 12(b)(6), ‘a district court

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should grant leave to amend even if no request to amend the pleading was made, unless it determines

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that the pleading could not be possibly be cured by the allegation of other facts’”).

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C.

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Discrimination Claim
In the operative complaint, Ms. Felicien also asserts a claim for discrimination. To the

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extent Ms. Felicien has asserted a Title VII claim, that claim is without any merit. As Defendants

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point out, Title VII protects against discriminatory employment practices only. See 42 U.S.C. §

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2000e et seq. The Court thus dismisses the Title VII claim with prejudice.

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D.

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Claim for Predatory Lending
Finally, the Court agrees with PNC that Ms. Felicien seems to be trying to assert a claim for

predatory lending. To the extent she is, that is contrary to the Court’s prior order, in which it

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For the Northern District of California

United States District Court

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instructed Ms. Felicien that she had leave to amend her claims for discrimination, fraud, and

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negligence/professional malpractice but she did not have leave to plead new causes of action. See

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Docket No. 28 (Order at 5). Nevertheless, because the Court is now dismissing with prejudice her

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claims for discrimination, fraud, and negligence/professional malpractice, it shall now give Ms.

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Felicien one final opportunity to amend her complaint to plead a claim for predatory lending.

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If Ms. Felicien does choose to amend her complaint and plead a claim for predatory lending,

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then she must include factual allegations explaining how she specifically was a victim of predatory

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lending. At present, her complaint states only what a “typical predatory loan is.” SAC at 3. In

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addition, Ms. Felicien should make clear when she was subjected to predatory lending and in

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conjunction with which loan (e.g., the original loan for the property or a modified loan). Finally,

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Ms. Felicien should identify what statutes or laws give rise to her claim for predatory lending. With

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these clarifications, the Court should be able to assess the legal validity of Ms. Felicien’s claim for

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predatory lending, including whether, as PNC argues, the claim is barred by the statute of

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limitations.

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II.

CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motions to dismiss. The claims for

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fraud, negligence, professional malpractice, and discrimination are all dismissed with prejudice. Ms.

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Felicien has leave to amend her complaint to plead a claim for predatory lending only. Any

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amended complaint must address the deficiencies identified by the Court above. Ms. Felicien has

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thirty days from the date of this order to file an amended complaint. If Ms. Felicien fails to timely

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file an amended complaint, then the Clerk of the Court shall enter judgment against her and

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close the file in this case.

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Ms. Felicien is advised she may seek advice from the Legal Help Desk. For Ms. Felicien’s

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benefit, the Court has appended to this order a flyer containing information about the Legal Help

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Center. A copy of the Handbook for Litigants Without a Lawyer is available at the Clerk’s Office

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and on the Court’s website – http://cand.uscourts.gov and more specifically,

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http://cand.uscourts.gov/proselitigants.
This order disposes of Docket Nos. 32 and 35.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: January 9, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONALD JOHNSON, et al.,

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Plaintiffs,
v.
CERTIFICATE OF SERVICE

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For the Northern District of California

United States District Court

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No. C-11-2388 EMC

PNC MORTGAGE & WELLS FARGO, et
al.,

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Defendants.
___________________________________/

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I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern

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District of California. On the below date, I served a true and correct copy of the attached, by placing

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said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing

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said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery

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receptacle located in the Office of the Clerk.

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Mavis Felicien
5713 Poplar Common
Fremont, CA 94538

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Dated: January 6, 2012

Ronald Johnson
5713 Poplar Common
Fremont, CA 94538
RICHARD W. WIEKING, CLERK

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By:

/s/ Leni Doyle
Leni Doyle
Deputy Clerk