Conover v. US Bank et al

Filing 10

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Pleadings due by 3/8/2013. Signed by Judge Richard Seeborg on 2/7/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/7/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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JEFFREY S. CONOVER,
Plaintiff,
v.

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US BANK and EVANS ASSOCIATES, P.C.

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No. C 13-0220 RS
ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Defendants
____________________________________/

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Plaintiff seeks leave to proceed in forma pauperis. (“IFP”). Plaintiff having made an

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adequate showing of indigence, the IFP application is granted. Under 28 U.S.C. '1915, however,

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the Court has a continuing duty to dismiss any case in which a party seeks leave to proceed in forma

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pauperis if the Court determines that the action (1) is frivolous or malicious; (2) fails to state a claim

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on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune

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from such relief. 28 U.S.C. ' 1915(e)(2). As presently drafted, the complaint is without merit in

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that it fails to set forth a cognizable claim. Rule 8 of the Federal Rules of Civil Procedure provides

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that to state a claim, a pleading must contain, among other things, “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” The first part of this requirement—“a short and

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plain statement of the claim” —cannot be read without reference to the second part —“showing that

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the pleader is entitled to relief.” The Supreme Court has made clear that while “showing” an

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entitlement to relief does not require “detailed factual allegations,” it does “demand[] more than an

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unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Thus, “[a] pleading that

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offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

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do.’ [citation.] Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

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factual enhancement.’” Id.

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Here, plaintiff alleges that he opened a checking account with US Bank that very quickly

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became overdrawn. Plaintiff does not dispute that his debit card purchases and cash withdrawals

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from the account exceeded the amount he had deposited; he instead insists that he “never gave

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affirmative consent to overdraft charges.” The materials attached to the complaint show that US
Bank contends it calculated and applied overdraft charges in accordance with the terms and

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For the Northern District of California

United States District Court

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conditions under which plaintiff opened the account. Absent the pleading of some facts to support a

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claim that US Bank was not entitled to charge overdraft fees, or calculated them incorrectly, the

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complaint does “not permit the court to infer more than the mere possibility of misconduct,” Iqbal,

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129 S. Ct. at 1950, and it is therefore insufficient.

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Additionally, the complaint names Evans Associates, P.C. as an additional defendant, based

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on its efforts to collect the purported debt on behalf of US Bank. Even assuming plaintiff may

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ultimately be able to show that no debt is owed to US Bank, he has not alleged facts to support a

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claim against Evans Associates.

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Accordingly, the complaint is dismissed. In light of his pro se status, plaintiff will be given

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leave to amend. If plaintiff elects to amend, he must do so no later than March 8, 2013. The Court

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directs plaintiff’s attention to the Handbook for Pro Se Litigants, which is available along with

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further information on the Court’s website located at http://cand.uscourts.gov/proselitigants.

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Plaintiff may also wish to seek free limited legal assistance from the Federal Pro Bono Project by

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calling the appointment line at [phone] ext. 8657 or by signing up in the appointment book

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located outside the door of the Project on the 15th floor of the Courthouse building. Plaintiff can

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speak with an attorney who will provide basic legal help, but not legal representation.

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IT IS SO ORDERED.

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Dated: 2/7/13
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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