Salat v. EBay Inc et al

Filing 41

ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT by Magistrate Judge Paul Singh Grewal granting 34 (psglc2, COURT STAFF) (Filed on 11/30/2015) (Additional attachment(s) added on 11/30/2015: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IMHOTEP SALAT,
Plaintiff,

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v.

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EBAY INC, et al.,

United States District Court
Northern District of California

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(Re: Docket No. 34)

This case revolves around an eBay sale that ended with Defendant PayPal, Inc. initiating
collection proceedings to recover $4,251.92 from Plaintiff Imhotep Salat.1 In the process, Salat
claims that Defendants eBay, Inc. and PayPal failed to disclose various terms of the transaction
and violated the Truth in Lending Act,2 the Fifth Amendment and the “Disability Discrimination
Act.”3

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ORDER GRANTING MOTION TO
DISMISS SECOND AMENDED
COMPLAINT

Defendants.

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Case No. 15-cv-00066-PSG

Defendants move to dismiss Salat’s Second Amended Complaint.4 Salat opposes the
motion on procedural grounds.5 The court GRANTS Defendants’ motion, without leave to
amend.

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See Docket No. 33 at 3-4, Ex. B.

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15 U.S.C. §§ 1601-1667.

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Docket No. 33 at 4-5.

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See Docket No. 34.

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See Docket No. 37.

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Case No. 15-cv-00066-PSG
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT

I.

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This court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. The
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parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C.
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§ 636(c) and Fed. R. Civ. P. 72(a).
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II.

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A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.”6 When a plaintiff fails to proffer “enough facts to state a claim to
relief that is plausible on its face,” the complaint may be dismissed for failure to state a claim upon
which relief may be granted.7 A claim is facially plausible “when the pleaded factual content

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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United States District Court
Northern District of California

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alleged.”8 Under Fed. R. Civ. P. 12(b)(6), “dismissal can be based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”9 Dismissal

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with prejudice and without leave to amend is appropriate if it is clear that the complaint could not
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be saved by amendment.10

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At this stage of the case, the court must accept all material allegations in the complaint as
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true and construe them in the light most favorable to the non-moving party.11 The court’s review

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is limited to the face of the complaint, materials incorporated into the complaint by reference and
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matters of which the court may take judicial notice.12 However, the court need not accept as true

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Fed. R. Civ. P. 8(a)(2).

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).

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See id.

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Case No. 15-cv-00066-PSG
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT

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allegations that are conclusory, unwarranted deductions of fact or unreasonable inferences.13 “A

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document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully

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pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’”14

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But, even if the court construes Salat’s pleading as liberally as possible, none of his claims can

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survive against the standards above.
Salat does not allege facts sufficient to state a TILA claim. As Defendants point out, TILA

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applies only to “creditors” and to transactions “primarily for personal, family or household

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purposes” and not “business, commercial, or agricultural purposes.”15 Salat does not allege that

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Defendants extended him credit or that the transaction was personal and not commercial in nature.
To the contrary, he alleges that he “never signed any disclosures or agreements with [eBay] for

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United States District Court
Northern District of California

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financial lending [or] financial borrowing,”16 and his description of a typical PayPal transaction

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could not be characterized as a consumer credit transaction either.17 Salat’s TILA claim is

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dismissed.
So is his Fifth Amendment claim. The Due Process Clause of the Fifth Amendment only

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See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly,
550 U.S. at 561 (“a wholly conclusory statement of [a] claim” will not survive a motion to
dismiss).
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Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
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Thorns v. Sundance Properties, 726 F.2d 1417, 1418 (9th Cir. 1984). The statute defines a
“creditor” as one who “(1) regularly extends . . . consumer credit which is payable by agreement in
more than four installments or for which the payment of a finance charge is or may be required
and (2) is the person to whom the debt . . . is initially payable on the face of the evidence of the
indebtedness.” 15 U.S.C. § 1602(g). The statute defines “credit” as “the right granted by a
creditor to a debtor to defer payment of debt or to incur debt and defer its payment.” Id. § 1602(f).
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Docket No. 33 at 4.

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See id. at 2 (“[eBay] and [PayPal] are both Public Companies that provide public financial
transactions for consumer goods online. Funds are transferred from [PayPal] to [eBay] to sellers
by [PayPal’s] online system.”).
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Case No. 15-cv-00066-PSG
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT

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applies to actions of the federal government.18 Since Defendants are not the government, Salat

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may not bring a claim against Defendants for constitutional violations.19
Finally, Salat fails to state a claim under the Americans with Disabilities Act.20 Because

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Defendants are private entities, the court assumes that Salat’s claim falls under Title III of the

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ADA,21 which “prohibits discrimination by public accommodations.”22 “To prevail on a Title III

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discrimination claim, the plaintiff must show that (1) she is disabled within the meaning of the

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ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public

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accommodation; and (3) the plaintiff was denied public accommodations by the defendant because

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of her disability.”23 Salat alleges only that Defendants failed to provide “reasonable
accommodations to allow him to resolve the conflict.”24 He does not allege sufficient facts to

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United States District Court
Northern District of California

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show that he is disabled under the ADA, that Defendants operate a public accommodation or that

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he was denied public accommodations because of his disability. Moreover, “[m]onetary damages

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are not available in private suits under Title III of the ADA,”25 and Salat does not identify what, if

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any, injunctive relief he seeks.

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See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001).

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Even if the court liberally construes Salat’s claim to be brought under the Fourteenth
Amendment, the complaint still fails. “Because the [Fourteenth] Amendment is directed at the
States, it can be violated only by conduct that may be fairly characterized as ‘state action.’” Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982). Salat does not allege that Defendants acted
on behalf of a state.
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As noted earlier, Salat’s complaint brings a claim under the “Disability Discrimination Act.”
Docket No. 33 at 5. The court liberally construes this to mean a claim under the ADA. See 42
U.S.C. §§ 12101-12213.
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See 42 U.S.C. §§ 12181-12189.

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Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).

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Id.

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Docket No. 33 at 5.

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Molski, 481 F.3d at 730 (citing Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002)).

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Case No. 15-cv-00066-PSG
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT

Salat’s only argument in opposition is that Defendants failed to provide him proof of

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service before they filed this motion.26 This argument is meritless because there is no such

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requirement under the Federal Rules of Civil Procedure.27 In any case, Salat obviously did receive

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the moving papers—he moved on July 15 for an extension of time to respond to them,28 and the

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court granted his request in part.29 Defendants’ motion comported with the appropriate

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procedures.

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III.
Defendants’ motion to dismiss is GRANTED. Dismissal without leave to amend is only

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appropriate if it is clear that the complaint could not be saved by amendment such as after a
plaintiff’s “repeated failure to cure deficiencies by amendments previously allowed.”30 Salat

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United States District Court
Northern District of California

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already has amended his complaint twice,31 but he has come no closer to stating a viable claim.

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Further leave to amend would be futile and therefore is DENIED.

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SO ORDERED.

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Dated: November 30, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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See Docket No. 37 at 2.

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See Fed. R. Civ. P. 5(a).

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See Docket No. 35.

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See Docket No. 36.

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Eminence Capital, 316 F.3d at 1052 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

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See Docket Nos. 1, 17, 33.

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Case No. 15-cv-00066-PSG
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT