Shoaga v. Wells Fargo Bank et al

Filing 9

ORDER DISMISSING 6 Amended Complaint filed by Raimi Shoaga WITHOUT PREJUDICE with thirty (30) days to file an amended complaint. Signed by Judge Charles R. Breyer on 12/16/2014. (crblc2, COURT STAFF) (Filed on 12/16/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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RAIMI SHOAGA,
Plaintiff,

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No. C14-04000 CRB
ORDER DISMISSING CASE WITHOUT
PREJUDICE

v.

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WELLS FARGO BANK,

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Defendant.

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On September 19, 2014, this Court granted Plaintiff Raimi Shoaga leave to proceed in forma

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pauperis (“IFP”), 28 U.S.C. § 1915, as well as dismissed his Complaint without prejudice for failure

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to state a claim upon which relief may be granted, 28 U.S.C. § 1915(e)(2)(B)(ii). See Order (dkt. 4).

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The Court gave Shoaga thirty (30) days to file an amended complaint, with a warning that failure to

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do so might result in dismissal of Shoaga’s case with prejudice. Id. at 3. On October 24, 2014,

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Shoaga filed an untimely First Amended Complaint (“FAC”). See FAC (dkt. 6). Any person

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proceeding IFP under 28 U.S.C. § 1915(a) is subject to mandatory sua sponte review and dismissal

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if the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or

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seeks monetary relief from a defendant immune from suit. 28 U.S.C. § 1915(e)(2)(B); Lopez v.

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Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000). In addition to the FAC being untimely, the Court

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finds that the FAC fails to state a cognizable claim for relief. Therefore, the Court declines to order

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that the Clerk issue summons, 28 U.S.C. § 1915(d), and dismisses the FAC without prejudice, 28

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U.S.C. § 1915(e)(2)(B). If Shoaga files a future complaint in this matter that likewise fails to state a

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claim, the Court might consider further amendments to be futile and dismiss the complaint with

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prejudice.

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I.

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LEGAL STANDARD
The legal sufficiency of a complaint is tested under Federal Rule of Civil Procedure 12(b)(6).

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Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under Rule 12(b)(6), dismissal is appropriate

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if the complaint fails to state a facially plausible claim for relief. Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 556–57 (2007). That is, the complaint must state enough facts to raise a reasonable

United States District Court
For the Northern District of California

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expectation that discovery will reveal evidence of the claim. Id. at 556. Dismissal is also

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appropriate when the complaint lacks a cognizable legal theory. Robertson v. Dean Witter

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Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

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The district court must assume the truth of all factual allegations and construe them in the

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light most favorable to the plaintiff. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

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However, pro se litigants are not “excused from knowing the most basic pleading requirements.”

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Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000).

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II.

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DISCUSSION
Shoaga’s FAC again fails to state a claim upon which relief may be granted. The FAC

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includes four self-titled causes of action, FAC ¶¶ 9–12, but none states a cognizable legal claim in

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its present form. First, Shoaga appears to allege he is entitled to a tax write-off because a shipping

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company (not a party to this action) did not deliver a shipping container of Shoaga’s cargo to

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Nigeria. See id. ¶ 9. To the extent the allegations are a collateral attack on the merits of the Internal

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Revenue Service (“IRS”) tax assessment, the United States has neither waived its sovereign

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immunity nor has Shoaga exhausted administrative remedies. See, e.g., Elias v. Connett, 908 F.2d

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521, 527 (9th Cir.1990); Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir.1993). The claim

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also fails to state facts alleging a plausible claim for relief against any other defendant.

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Shoaga’s second cause of action alleges fraud against defendant Wells Fargo, FAC ¶ 10. The
factual basis for this allegation appears to be that Wells Fargo charged Shoaga one or more
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processing charges of $125. Federal Rule of Civil Procedure 9(b) requires that fraud claims be

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pleaded with specificity, including stating in the complaint the time, place, and content of the false

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representations, as well as the identity of the person making them. Shoaga does not even allege that

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Wells Fargo made a false representation, as required for a fraud claim. Accordingly, this second

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cause of action is dismissed for failure to state a claim.

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A liberal reading of Shoaga’s third cause of action suggests he is alleging the interest rates

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on his student loans to be too high. Id. ¶ 11. Shoaga states that “[i]t is a common practice or policy

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to have deferred collection against borrowers engaged in Health care, and this policy should apply to

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this plaintiff’s.” Id. He adds that “[i]n real life, once the interest surpass the principal loan, it has to

United States District Court
For the Northern District of California

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be written off.” Id. Again, the Court can discern no facts or legal claims on which relief can be

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granted.

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Shoaga’s fourth cause of action, FAC ¶ 12, alleges “Illegal and Wrongful Collection

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Process,” but Shoaga complains only that all Defendants “literally take any amount they want, and

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in most cases they just clean out plaintiff account with total disregard for plaintiff’s well being,” and

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that “[t]he so called ‘IRS field Service Agents’ was a total joke, they talk down on people, and rarely

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depart their offices at no time.” Id. The basis for his claim being unclear in both law and fact, this

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alleged cause of action cannot proceed as currently stated.

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III.

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CONCLUSION
The Court sua sponte DISMISSES this action, both because it is untimely and because it fails

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to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B). Plaintiff has thirty

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(30) days to file a legally adequate amended complaint. Failure to do so will result in dismissal of

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Plaintiff’s case with prejudice.

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IT IS SO ORDERED.

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Dated: December 16, 2014
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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