Clark v. Wells Fargo Bank, N.A. et al
Filing
61
OPINION AND ORDER: Wells Fargo's motion to dismiss 48 is granted and this case is dismissed. Clark's request for oral argument is denied as unnecessary. See formal order. Copy of this minute order and formal order sent to pro se plaintiff. Signed on 7/1/2014 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANDREW G. CLARK,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
WELLS FARGO HOME MORTGAGE,
and WELLS FARGO AND COMPANY,
Defendants.
Andrew G. Clark
3270 Stoney Ridge Road
Eugene, Oregon 97405
Pro se plaintiff
Christian Rowley
Peter D. Urias
Seyfarth Shaw LLP
560 Mission Street, Suite 3100
San Francisco, California 94105
David C. Campbell
Sharon C. Peters
Williams Kastner & Gibbs, PLLC
888 S.W. Fifth Avenue, Suite 600
Portland, Oregon 97204
Attorneys for defendants
Page 1 - OPINION AND ORDER
Case No. 6:13-cv-01546-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Defendants Wells Fargo Bank and Wells Fargo Home Mortgage 1
(collectively
"Wells
Fargo")
move
to
Clark's complaint pursuant to Fed.
R.
dismiss
Civ.
P.
plaintiff Andrew
12(b)(6).
For the
reasons set forth below, Wells Fargo's motion is granted and this
case is dismissed.
BACKGROUND
Beginning in September 2009, Clark was employed by Wells Fargo
as a mortgage originator. At some point during his tenure at Wells
Fargo, Clark began compiling reports regarding the bank's alleged
violations
transmitted
of
the
this
Sarbanes-Oxley
information
both
and
Frank-Dodd
internally
and
Acts;
to
he
various
government agencies, including the Federal Bureau of Investigation
and Central Intelligence Agency. In June 2011, Clark was terminated
for repeatedly displaying unprofessional conduct. He then posted
Wells
Fargo's
confidential
and
proprietary
records,
including
private customer information, on his website.
On July 18, 2011, the Eugene Police Department contacted Clark
at his home because Wells Fargo reported that he was trespassing
and had sent an email referencing genocide. Police officers warned
Clark to avoid Wells Fargo property in the future.
2011,
the
police
arrested
Clark
for
second
On July 29,
degree
municipal
trespass. Plaintiff was held in the Lane County jail for 18 hours
before being released. The trespass charge was later dismissed.
1
Clark elected not to serve the other listed Wells Fargo
entity - i.e. Wells Fargo and Company - because he no longer
perceives it as a necessary party. Defs.'s Mem. in Supp. of Mot.
Dismiss 4, 16; Pl.'s Resp. to Mot. Dismiss 2, 18. Accordingly,
pursuant to Clark's stipulation, Wells Fargo and Company is
dismissed as a defendant from this action.
Page 2 - OPINION AND ORDER
In August 2011,
Wells Fargo commenced a lawsuit seeking to
enjoin Clark from publishing, controlling, disclosing, or retaining
any of its equipment, confidential customer information, or trade
secrets. Clark filed numerous motions, which, amongst other things,
attacked Wells Fargo's counsel, Ogletree, Deakins, Nash, Smoak and
Stewart,
P. C.
("Ogletree") ,
and
alleged
that
Wells
Fargo
was
engaging in racketeering and retaliation; the Court denied each of
Clark's motions. The Court, however, permitted Wells Fargo to file
documents reflecting Clark's inappropriate correspondences under
seal.
On October 5,
2012,
after two hearings,
the Court granted
summary judgment in favor of Wells Fargo and entered a permanent
injunction. See generally Wells Fargo Bank, N.A. v. Clark ("Clark
~,
2012 WL 4794156 (D.Or. Oct. 5, 2012). At that time, the Court
held Clark in contempt for failing to "comply with standards of
professionalism in all his communications with Wells Fargo and its
counsel."
Id. at *5-7. Clark sent hundreds of emails and faxes to
Ogletree, some of which were threatening and/or obscene, and all of
which "had little to no bearing upon
[any]
legal issue between
plaintiff and defendant," despite being repeatedly instructed by
the Court "to limit his communications to plaintiff's counsel's
firm in Portland and to
tone."
Id.
Thereafter,
keep those to a
the
Court
reconsideration filed by Clark.
denied
strictly professional
several
motions
for
See generally Wells Fargo Bank,
N.A. v. Clark ("Clark II"), 2013 WL 2038561 (D.Or. May 14, 2013).
On July 18, 2013, police officers arrived at Clark's home to
interview him about certain faxes and emails he had sent Ogletree
and one of its attorneys, Leah Lively. Although Clark denied that
Page 3 - OPINION AND ORDER
the communications at issue were threatening, officers warned him
if he continued to communicate inappropriately with Ogletree and
Lively, he may be criminally charged with stalking. On July 23,
2013,
Clark
sent
contravention
of
another
to
orders.
police
fax
On
Ogletree
July
and
in
2013,
25,
Lively
Clark
was
arrested and charged with ten counts of stalking; he was jailed for
six days
and released with an electronic ankle bracelet
after
posting bail.
On August 3, 2013, Clark initiated this lawsuit against Wells
Fargo, Ogletree, and Securitas Corporation ("Securitas"), as well
as certain individually named employees, alleging:
(1) violations
of the Racketeer Influenced and Corrupt Organizations Act ("RICO")
(claims one through nine) ;
( 2) deprivation of his First, Fourth,
Fifth, Eighth, and Fourteenth Amendment rights in violation of 42
U.S.C.
§
1983
(claims
ten
and
twelve);
(3)
defamation
(claim
eleven);
(4) violations of the Occupational Safety and Health Act
("OSHA")
(claim thirteen);
(5) gross negligence (claim fourteen);
and (6) a conspiracy against constitutional rights in violation of
18
U.S.C.
§§
241,
242
(claim fifteen) . 2
That
same
day,
Clark
effectuated service on Ogletree and Securitas.
On September
complaint
or,
October 21,
26,
2013,
alternatively,
2013,
Securitas
Ogletree moved to
appoint
a
dismiss
guardian
ad
Clark's
litem.
filed a motion to dismiss
On
Clark's
claims. On October 24, 2013, pursuant to notification by the Lane
2
Clark additionally lists libel,
privacy, and violations of the Oregon
causes of action without any specific
thereof. The Court therefore declines
further.
Page 4 - OPINION AND ORDER
false light, invasion of
Safe Employment Act as
allegations in support
to address these claims
County Circuit Court, the Court stayed these proceedings pending
resolution of the criminal stalking charges brought by Ogletree and
Lively. On January 9, 2014, Clark entered into a plea agreement,
which, in relevant part, precludes him from contacting Ogletree or
its attorneys, except through counsel, for ten years.
On January 31, 2014, the Court resolved several motions filed
by Clark.
Notably,
the Court dismissed Securitas and all of the
individually named defendants pursuant to Clark's stipulations.
Moreover, based on the terms of the plea agreement entered into by
Clark and the Lane County District Attorney's Office,
the Court
also dismissed Ogletree from this lawsuit unless and until Clark
retains
counsel,
defendant.
leaving
Accordingly,
Wells
the
Fargo
Court
Ogletree's motions to dismiss is moot.
as
the
denied
only
Securitas's
On April 29,
effectuated service on Wells Fargo. On May 20,
remaining
2014,
and
Clark
2014, Wells Fargo
moved to dismiss Clark's complaint.
STANDARD OF REVIEW
Where the plaintiff "fails to state a claim upon which relief
can be granted," the court must dismiss the action. Fed. R. Civ. P.
12(b) (6). To survive a motion to dismiss, the complaint must allege
"enough facts to state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly,
For purposes of a motion to dismiss,
550 U.S. 544, 570
(2007).
the complaint is liberally
construed in favor of the plaintiff and its allegations are taken
as true.
Bare
Rosen v. Walters,
assertions,
however,
719 F.2d 1422, 1424
that
amount
to
(9th Cir.
nothing more
1983).
than
a
"formulaic recitation of the elements" of a claim "are conclusory
and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S.
Page 5 - OPINION AND ORDER
662, 681 (2009). Rather, to state a plausible claim for relief, the
complaint "must contain sufficient allegations of underlying facts"
to support its legal conclusions.
Starr v.
Baca,
652 F.3d 1202,
1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
DISCUSSION
Wells Fargo contends that, "[g]iven Clark's failure to allege
plausible facts supporting his claims, Clark's complaint and each
Count thereof should be dismissed for failure to state a claim."
Defs.'s Mem. in Supp. of Mot. Dismiss 3. In the alternative, "Wells
Fargo
joins Ogletree's Motion to Appoint
a
Guardian ad Li tern,
pursuant to Fed. R. Civ. P. 17(c), due to Clark's well-documented
history of mental instability and harassment of opposing counsel."
Id. at 16.
I.
Preliminary Matters
Three
factual
issues merit
clarification before the Court
reaches the substantive merits of Wells Fargo's motion.
A.
Remaining Parties
Clark asserts repeatedly that Ogletree and the Eugene Police
Department are agents of or engaged in a conspiracy with Wells
Fargo.
See,
Compl.
~~
e.g.,
50,
59,
Pl.'s Resp.
62.
to Mot.
Dismiss 2,
32 3 ;
see also
Although Clark concludes that an agency
relationship exists, none of his factual allegations demonstrate
3
Ordinarily, "[i]n determining the propriety of a Rule
12(b) (6) dismissal, a court may not look beyond the complaint to
a plaintiff's moving papers, such as a memorandum in opposition
to a defendant's motion to dismiss." Schneider v. Cal. Dep't of
Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Nevertheless, in
light of Clark's prose status, and in order to provide the most
complete review of this dispute, the Court considers new
allegations contained in Clark's opposition, as well as the
"evidence" he cites from his website, www.risepatriot.com, in
evaluating Wells Fargo's motion.
Page 6 - OPINION AND ORDER
that the investigating officers or Ogletree were subject to the
control of Wells Fargo,
except to the extent Ogletree performed
legal services on behalf Wells Fargo. See Eads v. Borman, 351 Or.
729, 735-36, 277 P.3d 503 (2012)
Likewise,
(defining an agency relationship).
his assertions concerning a
conclusory,
conspiracy are vague and
such that they lack the requisite specificity to be
considered plausible. Regardless, as Clark acknowledges, Ogletree
is no longer a party to this lawsuit. Further, the Eugene Police
Department and/or the City of Eugene are not, and never have been,
named as defendants.
Thus,
neither Ogletree's nor the police's
alleged actions are actionable at this stage in the proceedings.
B.
Underlying Criminal Conviction for Stalking
Clark
devotes
considerable
portions
response to collaterally attacking his
stalking.
See,
also Compl.
~~
e.g.,
21,
Pl.'s Resp.
51,
59.
complaint
and
criminal conviction
for
to Mot.
of
his
Dismiss 10-11,
21;
see
Clark also filed a motion with this
Court impugning his plea deal and indicating that he would appeal
that conviction. See generally Pl.'s Mot. to Augment the Record.
Initially,
this Court is without authority to overturn or
otherwise alter a state court judgment in this context. See Weems
v. Or. Univ. Sys., 2012 WL 4093539, *3-4
aff'd,
2014 WL 1409992
(9th Cir. Apr.
(D.Or. Sept. 17, 2012),
14,
2014)
(explaining the
Rooker-Feldman doctrine, which "bars any suit that seeks to disrupt
or undo a prior state-court judgment,
regardless of whether the
state court proceeding afforded the federal court plaintiff a full
and fair opportunity to litigate
[his]
claims")
(citations and
internal quotations omitted).
Further, because Clark was criminally convicted, the alleged
Page 7 - OPINION AND ORDER
actions
of
Wells
Fargo
that
precipitated
his
arrest
are
not
litigable at this time. This is especially appropriate given that,
as
discussed
above,
there
are
no
well-pleaded
allegations
indicating that Wells Fargo was responsible for or involved in the
charges Ogletree and Lively filed against him. In other words, any
allegations of kidnaping or wrongdoing relating to this event are
not
plausible.
In
fact,
Clark's
plea
agreement,
wherein
he
stipulated to one count of stalking, establishes that Ogletree's
and Lively's complaints, as well as the actions of law enforcement
in charging him and taking him into custody, were legally valid.
Accordingly,
Clark's claims that are premised on his July 2013
interactions with the police and subsequent arrest and criminal
conviction fail.
C.
Previous Lawsuit with Wells Fargo
Clark's claims are based, in part, on the alleged injustices
he suffered pursuant to his previous litigation with Wells Fargo,
including
the
fact
that
the
Court
permitted Ogletree
certain documents under seal. See, e.g., Compl.
~~
to
file
9-32, 39-42, 44;
see also Pl.'s Resp. to Mot. Dismiss 38. Clark, however, did not
appeal
that
lawsuit.
In
any
event,
because
those
issues
were
previously litigated between the same parties and resulted in a
final
judgment,
they cannot form the basis of this action.
See
generally Clark I, 2012 WL 4794156 (D.Or. Oct. 5, 2012); see also
Clark II, 2013 WL 2038561 at *1 (denying Clark's motions regarding
a mistrial, RICO claims, and to unseal PACER accounts); Siegel v.
Fed. Home Loan Mortg. Corp., 143 F.3d 525, 528-29 (9th Cir. 1998)
(claim preclusion, also known as res judicata, "bars all grounds
for recovery that could have been asserted, whether they were or
Page 8 - OPINION AND ORDER
not, in a prior suit between the same parties on the same cause of
action")
(internal citation omitted). As such, to the extent this
lawsuit involves related claims or causes of action, res judicata
precludes re-litigation of those issues.
II.
Racketeer Influenced and Corrupt Organizations Act Claims
Clark alleges that Wells
Fargo violated RICO by "actively
corrupt[ing] local police with falsifications, innuendo, and abuse
of authority to induce them to perform Plaintiff's removal from his
home and related jailing," such that "their actions fully meet the
definitions of kidnaping described in 18 U.S.C.
62,
65.
In addition,
1201." Compl.
§
Clark asserts that Wells
Fargo improperly
filed documents under seal in its previous lawsuit,
against him for "providing
"intentionally
harassed
the FBI
[him]
by
[with]
RICO
makes
it
"unlawful
for
any
which
affect,
participate,
interstate
directly
or
or
foreign
indirectly,
and
of
70-73, 78.
employed
by
or
or the activities of
commerce,
in
reports,"
CJ[CJ[
person
associated with any enterprise engaged in,
retaliated
prosecution
malicious
groundless civil and criminal offenses." Id. at
CJ[CJ[
the
to
conduct
conduct
of
or
such
enterprise's affairs through a pattern of racketeering activity."
18 U.S.C. § 1962(c); see also 18 U.S.C. § 1961(1)
("racketeering
activity" includes any act "indictable" under certain enumerated
federal criminal statutes) . 4 To state a RICO claim,
"a plaintiff
4
Clark opposes dismissal, in part, because "the State of
Oregon has its own set of Racketeering and Kidnaping laws [and
Wells Fargo] has not discussed that aspect." Pl.'s Resp. to Mot.
Dismiss 37. Clark's complaint only alleges claims under the
federal RICO statute, such that it was unnecessary for Wells
Fargo to brief Oregon's racketeering requirements. See, e.g.,
Compl. CJ[CJ[ 60-78. In any event, any state law racketeering claims
fail for the same reasons as Clark's federal RICO claims.
Page 9 - OPINION AND ORDER
must plead facts establishing:
(1) that the defendant;
the
criminal
commission
pattern
of
of
predicate
racketeering
activity;
acts
which
constitute
directly
(3)
(2) through
or
indirectly
invests in, or maintains an interest in, or participates in;
enterprise."
*10
a
(4) an
See Hogan v. NW Trust Servs., Inc., 2010 WL 1872945,
(D.Or. May 7, 2010), aff'd,
441 Fed.Appx. 490
(9th Cir. 2011)
(citation omitted) . A pattern of racketeering "must be based on at
least two acts of racketeering,
must show that the racketeering
predicates are related, and that they amount to or pose a threat of
continued crimina 1 activity. " .::,C'""'o'""o~p~e""r=---=I-"'n'""d"-"u"'-!s~.L'--"'I""n"-"c"-'--._v.!!.....!_•--=L~a~g::~-r~a"""n~d~T=..,l=..r~e
Chains, 205 F.Supp.2d 1157, 1165 (D.Or. 2002)
(citations omitted).
Clark's RICO claims are defective in many respects.
because
Wells
Fargo
is
the
only
remaining
defendant,
First,
Clark's
complaint fails to allege the existence of both a "person" and a
distinct
"enterprise,"
the
affairs
of
which
that
"person"
improperly conducts. See Cedric Kushner Promotions, Ltd. v. King,
533 U.S. 158, 161-66 (2001)
(explaining distinctness requirement).
Second, Clark does not plead what was specifically communicated by
Wells Fargo to the police or Ogletree, or when and by what means
the alleged misrepresentations took place.
See Edwards v.
Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)
Marin
(RICO claims based
on a false representation must "state the time, place, and specific
content of the false representations as well as the identities of
the
parties
to
the
misrepresentation")
quotations
omitted) .
conclusory
statements
destruction
or
Third,
about
falsification
although
the
of
( citation
Clark
predicate
records,
and
makes
acts
and
of
general
and
tampering,
retaliation,
nonetheless neglects to provide the required specificity.
Page 10- OPINION AND ORDER
internal
he
Regarding his allegations
concerning the predicate act of
kidnaping, the only direct wrongdoing that Clark alleges against
Wells Fargo is contacting the Eugene Police Department. See Pl.'s
Resp. to Mot. Dismiss 33 ("I am not including the City of Eugene
police as participants in RICO [instead] I allege and evidence that
Defendant
transmitted
lies
and
used
various
forms
of
undue
influence to affect illegitimate and illegal police activity").
Given that the police have an independent duty to investigate any
report
of
potential
criminal
activity,
this
allegation
is
inadequate to state a RICO claim against Wells Fargo. See Kahre v.
Darnrn,
342
Fed.Appx.
267,
268
(9th
Cir.
2009)
(legitimate
law
enforcement activity cannot serve as the basis of a RICO claim) . In
any event, Clark cannot establish the predicate act of kidnaping
because he was not transported across
state lines,
which is a
requisite element. See 18 U.S.C.§ 1201(a) (1).
Even if Clark's allegations of lawful arrest and litigation
conduct are construed as predicate acts,
he
fails
to evince a
pattern of racketeering activity. Indeed, his complaint refers to
a single scheme perpetrated by Wells Fargo: "Defendants all have a
monetary,
professional,
and/or
political
benefit
in
kidnaping
Plaintiff to terrorize and destable him in order to conceal their
illegal activity." Compl.
Inc.,
917
F.2d 1507,
1516
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