McClellon v. Bank of America, NA

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATION by U.S. District Judge John C Coughenour re 41 Report and Recommendations. For the foregoing reasons, the Court OVERRULES Plaintiffs objections (Dkt. No. 42) and ADOPTS Judge Theilers report and recommendation (Dkt. No. 41). The Court certifies that Plaintiffs appeal is not taken in good faith and his motion to appeal in forma pauperis is DENIED. (CDA)cc plaintiff via US Mail/ 9th Circuit via ECF Modified on 6/7/2019 correct filing date (CDA).

THE HONORABLE JOHN C. COUGHENOUR

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

DONTE McCLELLON,

10
Plaintiff,
11

CASE NO. C18-0829-JCC
ORDER

v.
12
BANK OF AMERICA N.A.

13

Defendant.

14

This matter comes before the Court on Defendant’s objections (Dkt. No. 42) to the report

15

16 and recommendation (“R&R”) (Dkt. No. 41) of the Honorable Mary Alice Theiler, United States
17 Magistrate Judge. Having thoroughly considered the relevant record, the Court finds oral
18 argument unnecessary and hereby OVERRULES Plaintiff’s objections and ADOPTS Judge
19 Theiler’s R&R for the reasons explained herein.
20 I.

BACKGROUND

21

On May 15, 2018, Plaintiff filed this lawsuit in King County Superior Court. (Dkt. No. 1-

22 1 at 4.) 1 After removing the case to this Court, Defendant moved to dismiss Plaintiff’s
23
24

1

This is one of six lawsuits filed by Plaintiff against various financial institutions, all of
25 which have been adjudicated by this Court. See McClellon v. OptionsHouse, Case No. C180817-JCC, Dkt. No. 1-1 (W.D. Wash. 2018); McClellon v. Wells Fargo Bank N.A., Case No.
26 C18-0851-JCC, Dkt. No. 1-2 (W.D. Wash. 2018); McClellon v. Wells Fargo Advisors Financial
Network, et al., Case No. C18-0852-JCC, Dkt. No. 1-1 (W.D. Wash. 2018); McClellon v. Capital
ORDER
C18-0829-JCC
PAGE - 1

1 complaint for failure to state a claim. (Dkt. No. 6.) The Court granted Defendant’s motion to
2 dismiss and granted leave to amend. (See Dkt. 10.) On August 7, 2018, Plaintiff filed an
3 amended complaint. (Dkt. No. 11.) On August 21, 2018, Defendant filed a motion to dismiss the
4 amended complaint. (Dkt. No. 12.) On October 5, 2018, the Court granted in part and denied in
5 part Defendant’s motion to dismiss and denied Plaintiff further leave to amend. (Dkt. No. 17.)
6 On October 16, 2018, Defendant filed its answer to the amended complaint. (Dkt. No. 18.)
7

Plaintiff failed to appear to a status conference on November 13, 2018, and the Court

8 issued an order to show cause why the case should not be dismissed for failure to prosecute.
9 (Dkt. Nos. 20 21.) Plaintiff failed to respond to the Court’s order to show cause. On November
10 27, 2018, the Court dismissed Plaintiff’s amended complaint without prejudice for failure to
11 prosecute and entered judgment. (Dkt. Nos. 23, 24.)
12

On January 22, 2019, Plaintiff filed a one-page letter asking the Court to vacate its

13 judgment dismissing his amended complaint. (Dkt. No. 25.) Plaintiff stated that “he wasn’t in the
14 State of Washington on November 27th 2018.” (Id.) Plaintiff also stated that he has been
15 “battling a chronic disease for over a year and it had intensified since Mid-October 2018 leaving
16 [him] physically incapable to respond in a timely matter to this case and many other cases.” (Id.)
17 Plaintiff asked that “this matter be allowed to proceed with a rescheduled status conference.”
18 (Id.)
19

On February 22, 2019, the Court denied Plaintiff’s motion to vacate, ruling that Plaintiff

20 had not demonstrated excusable neglect warranting vacation of the Court’s judgment. (Dkt. No.
21 28.) Plaintiff filed a motion for reconsideration, which the Court denied. (Dkt. Nos. 29, 31.)
22
23 One Bank N.A., Case No. C18-0909-JCC, Dkt. No. 1-1 (W.D. Wash. 2018); McClellon v.
Citigroup Global Markets Inc., Case No. C18-0978-JCC, Dkt. No. 1-1 (W.D. Wash. 2018)..
24 Additionally, Plaintiff has filed three new lawsuits that allege identical claims as two of his prior
25 lawsuits. See McClellon v. OptionsHouse, Case No. C19-0427-JCC, Dkt. No. 3 (W.D. Wash.
2019); McClellon v. Bank of America N.A., Case No. C19-0394-JCC, Dkt. No. 9 (W.D. Wash.
26 2019); McClellon v. Capital One Bank N.A., Case No. C19-0446-RAJ, Dkt. No. 5 (W.D. Wash.
2019).
ORDER
C18-0829-JCC
PAGE - 2

1 Plaintiff appealed the Court’s orders dismissing his complaint, his motion to vacate, and his
2 motion for reconsideration, along with the Court’s judgment dismissing his complaint. (Dkt. No.
3 34.) Plaintiff moved for leave to appeal in forma pauperis (“IFP”). (Dkt. No. 35.) Judge Theiler’s
4 R&R recommends denying Plaintiff’s request to proceed IFP, finding that Plaintiff’s appeal was
5 not taken in good faith. (See Dkt. No. 41.) Plaintiff filed objections to Judge Theiler’s R&R (Dkt.
6 No. 42), which the Court now reviews.
7 II.

DISCUSSION

8

In her R&R, Judge Theiler found that Plaintiff’s appeal was not taken in good faith

9 because of the procedural history of this case and Plaintiff’s other related lawsuits. (Dkt. No. 41
10 at 2.) Judge Theiler noted that Plaintiff had “filed multiple nearly identical lawsuits and appeals
11 against different banks and financial institutions,” but that all of the complaints were based on
12 “unsupported allegations.” (Id. at 3.) Judge Theiler additionally noted that Plaintiff’s
13 “inconsistent IFP filings further bolsters the conclusion this is not a good faith appeal by an
14 indigent litigant.” (Id.)
15

Plaintiff asserts that Judge Theiler viewed his motion “in the light most unfavorable to

16 [him].” (Dkt. No. 42 at 2.) Plaintiff argues that his indigency is a “settled issue” because he was
17 previously granted IFP status in King County Superior Court. (Id.) He further argues that he
18 provided sufficient information in his IFP application to demonstrate that he is indigent. (Id. at
19 2–3.) Plaintiff also argues that his appeal of this Court’s prior orders is made in good faith
20 because he has a valid basis to challenge the Court’s denial of his motion to vacate. (Id. at 5–7.)
21 The Court disagrees.
22

Judge Theiler’s recommendation is not based on whether Plaintiff sufficiently pled that

23 he is indigent. (See generally Dkt. No. 41.) Therefore, Plaintiff’s objections regarding his
24 indigency are not relevant to the Court’s evaluation of the R&R. Rather, Judge Theiler concluded
25 that Plaintiff’s motion to appeal IFP should be denied because the appeal was not taken in good
26 faith. (Id. at 1.) The Court agrees with Judge Theiler that Plaintiff’s litigation conduct

ORDER
C18-0829-JCC
PAGE - 3

1 demonstrates that his appeal is not taken in good faith. Plaintiff initially filed six nearly identical
2 lawsuits alleging essentially identical claims against six separate financial institutions. See supra
3 n.1. The Court dismissed several of Plaintiff’s complaints with prejudice after determining that
4 they were not meritorious, and dismissed the other complaints without prejudice because
5 Plaintiff failed to file amended complaints, appear for status conferences, or otherwise prosecute
6 his claims. Compare McClellon v. Wells Fargo Bank N.A., Case No. C18-0851-JCC, Dkt. No. 23
7 (W.D. Wash. 2018) (dismissing complaint with prejudice), with McClellon v. OptionsHouse,
8 Case No. C18-0852-JCC, Dkt. No. 28 (W.D. Wash. 2018) (dismissing complaint without
9 prejudice).
10

The Court went on to deny Plaintiff’s motions to vacate its judgments because Plaintiff

11 provided nothing more than conclusory reasons for why he failed to appear to court, failed to
12 amend his complaints, and failed to comply with the Court’s orders to show cause why his case
13 should not be dismissed. (See, e.g., Dkt. No. 25.) Plaintiff not only appealed all of the Court’s
14 orders dismissing his complaints, but then re-filed three of his prior lawsuits. See supra n.1.
15 Viewing Plaintiff’s litigation conduct in total, the Court finds that Plaintiff’s appeal of the
16 Court’s order is not taken in good faith. Plaintiff has not demonstrated a good faith basis to
17 appeal the Court’s order denying his motion to vacate its prior judgment.
18 III.

CONCLUSION

19

For the foregoing reasons, the Court OVERRULES Plaintiff’s objections (Dkt. No. 42)

20 and ADOPTS Judge Theiler’s report and recommendation (Dkt. No. 41). The Court certifies that
21 Plaintiff’s appeal is not taken in good faith and his motion to appeal in forma pauperis is
22 DENIED. The Clerk is DIRECTED to send a copy of this order to Plaintiff, Judge Theiler, and
23 the Ninth Circuit Court of Appeals.
24

//

25

//

26

//

ORDER
C18-0829-JCC
PAGE - 4

1

DATED this 6th day of June 2019.

2

A

3
4
5

John C. Coughenour
UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

ORDER
C18-0829-JCC
PAGE - 5