Mack et al v. PNC Mortgage et al

Filing 14

ORDER DENYING PLAINTIFF SOBAYO'S 9 MOTION TO PAY FILING FEE IN INSTALLMENTS AND DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND. Signed by Judge Claudia Wilken on 12/1/2011. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 12/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DWAYNE WILLIAM MACK, doing
business as Kingsway Capital
Partners; NATHANIEL BASOLA
SOBAYO, doing business as
Kingsway Capital Partners,

United States District Court
For the Northern District of California

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Plaintiffs,
v.
PNC BANK; NATIONAL CITY MORTGAGE,
a division of National City Bank;
BANK OF AMERICA, N.A.; BLUE
MOUNTAIN HOMES, LLC; WILL LUJAN,
as agent for a purported owner;
CAL-WESTERN RECONVEYANCE
CORPORATION; POLYMATHIC
PROPERTIES, INC.; CHARLES B. WOOD
III, SBN 163146, attorney at law;
MATTIC LAW OFFICES; and DOES 1
THROUGH 50, inclusive,

No. C 11-3850 CW
ORDER DENYING
PLAINTIFF SOBAYO'S
MOTION TO PAY
FILING FEE IN
INSTALLMENTS AND
DISMISSING FIRST
AMENDED COMPLAINT
WITHOUT LEAVE TO
AMEND

Defendants.
________________________________/

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Pro se Plaintiffs Dwayne William Mack and Nathaniel Basola
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Sobayo filed this action on August 5, 2011.

They both filed

motions to proceed in forma pauperis (IFP).

On October 20, 2011,

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the Court issued an Order Denying Without Prejudice Plaintiff
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Sobayo's Application to Proceed IFP, Granting Plaintiff Mack's
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Application and Dismissing Complaint Without Prejudice to refiling
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an amended complaint.

The Court explained that Plaintiff Sobayo's

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IFP application was incomplete and granted him leave to supplement
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it.

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and Plaintiff Sobayo filed a motion to pay the filing fee in seven

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installments.

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On November 2, 2011, Plaintiffs filed an amended complaint

In support of his motion, Plaintiff Sobayo merely states that

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he "is currently insolvent as a result of the current economic

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conditions in this country."

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leave to file a supplemental IFP application to explain his

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financial situation.

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application would document this.

The Court granted Plaintiff Sobayo

If he is insolvent, a completed IFP
However, because he chose not to

United States District Court
For the Northern District of California

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complete an IFP application and does not submit evidence in

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support of his statement that he is insolvent, the Court denies

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his motion to pay the filing fee in seven installments.

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the issue may be moot because the Court dismisses the case.

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However,

The Court's October 20, 2011 Order explained that, because

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Plaintiffs alleged only state law claims, there was no federal

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jurisdiction, but noted that Plaintiffs appeared to allege a cause

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of action under the federal Fair Debt Collection Practices Act

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(FDCPA), 15 U.S.C. § 1692 et seq.

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amend to state such a claim, if Plaintiffs could truthfully do so.

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In their amended complaint, Plaintiffs attempt to allege a claim

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based on a violation of the FDCPA.

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provisions of the statute; they do not allege facts to show how

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each Defendant sued under this statute engaged in conduct that

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violated the statute.

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The Court granted leave to

However, they only list the

A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8.

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action, supported by mere conclusory statements," are insufficient

Fed. R.

"Threadbare recitals of the elements of a cause of

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to state a claim.

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(2009).

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50

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CONCLUSION

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Plaintiffs' first amended complaint is dismissed without

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leave to amend.

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prejudice to refiling in state court.

The state law claims are dismissed without

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: 12/1/2011

CLAUDIA WILKEN
United States District Judge

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