Ronald Satish Emrit v. Wells Fargo Bank, Inc.

Filing 4

ORDER Granting 2 Motion to Proceed in Forma Pauperis and Dismissing Case Without Prejudice and With Leave to Amend. The Court grants Plaintiff's motion to proceed IFP and dismisses Plaintiff's Complaint without prejudice. Plaintiff must file an amended complaint, if any, on or before 4/6/2018. Failure to file an amended complaint on or before the deadline may result in this case being dismissed with prejudice. Signed by Judge Michael M. Anello on 2/14/2018. (All non-registered users served via U.S. Mail Service)(rmc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

RONALD SATISH EMRIT,

Case No.: 18cv318-MMA (JLB)
Plaintiff,

12
13

v.

14

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERS
AND DISMISSING CASE WITHOUT
PREJUDICE AND WITH LEAVE TO
AMEND

WELLS FARGO BANK, INC.,
Defendant.

15
16

[Doc. No. 2]

17
18

On February 8, 2018, Plaintiff Ronald Satish Emrit (“Plaintiff”), proceeding pro

19

se, filed this action against Defendant Wells Fargo Bank, Inc. (“Defendant”, raising

20

various state law causes of action. Doc. No. 1, Complaint (“Compl.”). Currently

21

pending before the Court is his motion to proceed in forma pauperis (“IFP”). Doc. No. 2.

22

BACKGROUND

23

This action results from “the distinct possibility” that Plaintiff’s checking account

24

at Wells Fargo “had its security measures compromised notwithstanding the fact that . . .

25

Plaintiff had closed his Wells Fargo Account” before the alleged security breach.

26

Compl., ¶ 2. Plaintiff brings this action because he “apparently missed the deadline to

27

join” as a class member in a class action that is “currently progressing” and which may

28

have settled. Compl., ¶ 2-4.
1
18cv318-MMA (JLB)

According to Plaintiff, Defendant’s “firewall” was breached and its customers’

1
2

personal and private information were exposed. Compl., ¶ 13. Plaintiff opened a “Wells

3

Fargo account when it was still Wachovia Bank at a branch in Bowie, MD . . . .” Compl.,

4

¶ 14. While there, a branch manager tried to get Plaintiff to “joint a multi-level

5

marketing company ‘doing business as’ . . . Your Travel Business International (YTBI) in

6

which the plaintiff was to become a ‘Referring Travel Agent.’” Compl., ¶ 15. Plaintiff

7

alleges a referring Travel Agent with YTBI is similar to being a “‘team trainer’ with

8

ACN,1 which the plaintiff joined in 2007 . . . . ACN . . . is based on the ‘pyramid sales’

9

or Amway model which the plaintiff describes as he was being defrauded by a Ponzi

10

sheme . . . .”2 Compl., ¶ 16. Plaintiff ultimately joined YTBI and switched his checking

11

account to “Chase Bank/JP Morgan in the summer of 2015.” Compl., ¶19.

12

Plaintiff alleges he later attended law school in Miami Gardens, Florida, where he

13

started a “fictitious entity” doing business as Alex Garcia Enterprises, Inc., “which was

14

supposed to buy women’s lingerie from wholesale distributors and retail it for a higher

15

price.” Compl., ¶ 20. Accordingly, he set up a business checking account with First

16

Union Bank with a “rollover/private checking account.” Compl., ¶ 21. “Prior to that, the

17

plaintiff’s grandmother . . . gave [him] [$]2,00[0] to invest in 1998 in which the plaintiff

18

invested in an Individual Retirement Account (IRA), a mutual fund (through John

19

Hancock Financial in Boston, MA), and a certificate of deposit . . . .” Compl., ¶ 22.

20

Plaintiff alleges he invested this money through “a certified financial planner (CFP) with

21

Chevy Chase Bank . . . in Silver Spring, MD.” Compl., ¶23.

22
23

Based on the foregoing facts, Plaintiff alleges the following causes of action
against Defendant: (1) breach of contract; (2) negligence; (3) tortious interference with

24
25
26
1

27
28

Plaintiff does not explain what ACN stands for. See Compl.
Plaintiff explains he attended an ACN convention in Salt Lake City, Utah where he stayed at different
military bases in Utah. Compl., ¶ 17. On his way back from the convention, he also stayed in Omaha,
Nebraska and Fort Meade, Maryland. Id.
2

2
18cv318-MMA (JLB)

1

business relations/contracts; and (4) intentional infliction of emotional distress. Compl.,

2

¶ 27-35. Plaintiff prays for $250,000 in damages. See Compl.

3

MOTION TO PROCEED IFP

4

All parties instituting any civil action, suit or proceeding in a district court of the

5

United States, except an application for writ of habeas corpus, must pay a filing fee of

6

$400.3 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

7

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

8

§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

9

forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

10

1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.

11

E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). “But, the same even-

12

handed care must be employed to assure that federal funds are not squandered to

13

underwrite, at public expense, either frivolous claims or the remonstrances of a suitor

14

who is financially able, in whole or in material part, to pull his own oar.” Temple v.

15

Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

16

Plaintiff’s IFP application details his net monthly income and his monthly

17

expenses, with his net monthly expenses exceeding his net monthly income. See Doc.

18

No. 2. Based thereon, the Court concludes that Plaintiff should be allowed to proceed

19

IFP pursuant to 28 U.S.C. § 1915(a) because his submission demonstrates that he lacks

20

the financial resources to pay the costs of commencing this action. See Rodriguez, 169

21

F.3d at 1177. Accordingly, the Court GRANTS Plaintiff’s motion to proceed IFP. See

22

Doc. No. 2.

23

//

24

//

25
26
3

27
28

In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50.00.
See 28 U.S.C. § 1914(b) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, §
1914(b)). The additional $50.00 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
3
18cv318-MMA (JLB)

1
2

SCREENING PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)
When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and

3

the Court must order the sua sponte dismissal of any case it finds “frivolous; malicious;

4

fail[ing] to state a claim on which relief may be granted; or see[king] monetary relief

5

from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v.

6

Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B)

7

are not limited to prisoners.”). “[W]hen determining whether a complaint states a claim,

8

a court must accept as true all allegations of material fact and must construe those facts in

9

the light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

10

2000). In addition, the Court has a duty to liberally construe a pro se plaintiff’s

11

pleadings. See id. In giving liberal interpretation to a pro se complaint, however, the

12

court may not “supply essential elements of claims that were not initially pled.” See Ivey

13

v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

14

A complaint should be dismissed for failure to state a claim if, taking all well-

15

pleaded factual allegations as true, it does not contain “enough facts to state a claim to

16

relief that is plausible on its face.” See Coto Settlement v. Eisenberg, 593 F.3d 1031,

17

1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009)). “A claim has

18

facial plausibility when the plaintiff pleads factual content that allows the court to draw

19

the reasonable inference that the defendant is liable for the misconduct alleged.”

20

Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010)

21

(citation omitted).

22

As an initial matter, Plaintiff’s factual allegations are “verbose,” “confusing,”

23

“distracting, ambiguous, and unintelligible,” and comprised of “incomprehensible

24

rambling.” See Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d

25

1047, 1058-59 (9th Cir. 2011) (collecting dismissal of cases which did not provide a short

26

and plain statement of the claim showing that the pleader is entitled to relief). Plaintiff’s

27

statement of facts are hard to follow and essentially require the Court to construct the

28

grounds for relief from his pleadings. For example, Plaintiff states “Wells Fargo was
4
18cv318-MMA (JLB)

1

found to have its ‘firewall’ breached and its account holders had their personal and

2

private information exposed . . . .” Compl., ¶ 13. From there, Plaintiff alleges he began

3

working for an organization and “was being defrauded by a Ponzi scheme” at the behest

4

of a branch manager of Wachovia Bank in Maryland. Compl., ¶¶ 14-16, 19. Plaintiff

5

then goes on a tangent, explaining which air force bases he visited while attending a

6

convention for a different organization and explains that he “believes in the acronym

7

‘COLE WMA’ which is the plaintiff’s ‘code phrase’ for ‘Concentrate on Leaving Earth

8

With Me Again’ and has the last name of the plaintiff’s cousin . . . who lives in Highland

9

Beach in Annapolis, MD, i.e. a private beach for freed slaves and abolitionists like

10

Harriet Tubman . . . and Frederick Douglass.” Compl., ¶ 18. Plaintiff then alleges he

11

attended law school in Florida and started a fictitious entity that purchased “women’s

12

lingerie from wholesale distributors” and retailed it for a higher price. Compl, ¶ 20. He

13

explains his grandmother gave him money to set up a business account, which his

14

financial planner from “Chevy Chase Bank” assisted him with. Compl., ¶¶ 22-23.

15

Plaintiff concludes that “although [he] is not a conspiracy theorist, he would like to point

16

out that First Union Bank reminds him of the ‘Former Soviet Union’ which has the same

17

acronym as Florida State University . . . .” Compl., ¶ 26.

18

Additionally, Plaintiff’s causes of action allegations suffer from several defects.

19

For each cause of action he states Defendant is liable because it allowed millions of its

20

account holders “to have their private account information hacked into and exposed . . . .”

21

Compl., ¶¶ 29, 31, 33, 35. Beyond that, Plaintiff merely recites the elements for breach

22

of contract, negligence, tortious interference with business relations/contracts, and

23

intentional infliction of emotional distress. Compl., ¶¶ 27-35. For example, his breach of

24

contract cause of action states in a conclusory fashion that “[i]t is a material breach of

25

contract for the defendant Wells Fargo Bank to allow millions of its account holders . . .

26

to have their private account information hacked into and exposed . . . .” Compl., ¶¶ 27-

27

29. However, Plaintiff does not even allege the existence of a contract. Id. Even further,

28

each of Plaintiff’s causes of action are state law claims, but the Court has insufficient
5
18cv318-MMA (JLB)

1

information to determine which State’s laws apply. See generally, Compl. (listing

2

conduct occurring in Maryland, Utah, Nebraska, Ohio, Florida, Massachusetts, and

3

Virginia). Plaintiff’s “obligation to provide the grounds of his entitlement to relief

4

requires more than labels and conclusions, and a formulaic recitation of the elements of a

5

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

6

(internal quotation marks and citation omitted). Accordingly, the Court finds Plaintiff

7

has failed to state a claim upon which relief may be granted.

8
9

CONCLUSION
In light of the foregoing, the Court GRANTS Plaintiff’s motion to proceed IFP

10

and DISMISSES Plaintiff’s Complaint without prejudice. Plaintiff must file an amended

11

complaint, if any, on or before April 6, 2018. Failure to file an amended complaint on or

12

before the deadline may result in this case being dismissed with prejudice.

13
14

IT IS SO ORDERED.
Dated: February 14, 2018

15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
18cv318-MMA (JLB)