Adel Attili v. Bank of America

NOTICE OF MOTION AND MOTION to Dismiss Second Amended Complaint ; Memorandum of Points and Authorities

C.D. Cal.January 24, 2017

1 MCGUIREWOODS LLP ADAM F. SUMMERFIELD (SBN 259S42) 2 1 SOO Century Park East, 8th Floor Los Angeles, CA 90067-1501 3 Telephone: 310.315.8200 Facsimile: 310.315.8210 4 Attorneys for Defendant Bank of America, N.A. (erroneously sued as "Bank of 5 America") 6 7 s 9 10 11 12 13 14 15 16 17 lS 19 20 21 Adel Attili, Plaintiff, vs. Bank of America, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. 2:16-cv-039SS-DMG-JPR NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Defendant. Date: Time: Courtroom: March 8, 2017 9:30 a.m. SC TO ALL PARTIES, THE CLERK OF THE COURT, AND THE HONORABLE COURT: PLEASE TAKE NOTICE that in Courtroom SC of the above-captioned court, located at 350 West 1 '1 Street, Los Angeles, CA, 90012, at 9:30 a.m., on 22 March S, 2017, Defendant Bank of America, N.A. (erroneously sued as "Bank of 23 America") ("BANA") will, and hereby does, move to dismiss Plaintiff's Second 24 Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil 25 26 27 Procedure. This Motion will be based upon this Notice of Motion, the attached memorandum of points and authorities, the papers on file with the Court, and any 2S NOTICE OF MOTION AND MOTION TO DISMIS~ MEMORANDUM OF POINTS AND . AUTHORITIE.-i Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 1 of 8 Page ID #:104 1 oral argument at the hearing if so requested. 2 Counsel for BANA was unable to meet and confer with Plaintiff, despite 3 attempts to reach Plaintiff at his telephone number of record, pursuant to Local Rule 4 7-3. Accordingly, and as Plaintiff is proceeding prose in this action, BANA 5 respectfully requests the Court excuse it from the meet-and-confer requirement. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: January 24, 2017 Respectfully submitted, MCGUIREWOODS LLP By: Isl Adam F. Summe1field Adam F. Summerfield Attorneys for Defendant Bank of America, N.A. ( e11'oneously sued as "Bank of America") NOTICE OF MOTION AND MOTION TO DISMIS~ MEMORANDUM OF POINTS AND AUTHORITIE;:, Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 2 of 8 Page ID #:105 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Adel Attili sued Defendant Bank of America, N.A. (erroneously sued 4 as "Bank of America") ("BANA"), and is seeking $1,000,000 in damages for an 5 unidentified fraud. The Court previously granted BANA's motions to dismiss 6 Plaintiffs original Complaint and First Amended Complaint in their entirety. 7 Plaintiffs Second Amended Complaint ("SAC") adds no new substantive 8 allegations, and simply restates, with less detail, the allegations in Plaintiffs prior 9 complaints. The SAC consists solely of one paragraph that appears to address his 10 troubles in proceeding pro se. Although he mentions entrapment and fraud in the 11 barest way possible, Plaintiff does not appear to asse1i any actual claim. For the 12 reasons stated below, the SAC is hopelessly defective. It must again fail, and the 13 Comi should grant BANA's motion to dismiss without leave to amend. 14 II. SUMMARY OF SAC 15 The SAC, in its entirety, reads [sic throughout]: 16 17 18 19 20 21 Please procede In Pro Per. I am very sick I may have an attorney. The on-its-face statement is defective+ seems only one's capacities+ [illegible] capacities. Law is neat but the apology on either side needed's only a matter of experience amounting to sufficient expe1tise. My record shows the "Nay" of me sick, wary (of banking battle),+ unprepared free citizen. The bank itself cites the civil code against such entrapment which case begets plain fraud. I said "No" for three months. Please help me to my right. $1 million dollars at absolute law. 22 SAC, 1:17-28. 23 III. STANDARD ON MOTION TO DISMISS 24 A Rule 12(b)(6) motion tests the legal sufficiency of the claims asse1ied in the 25 complaint. A Rule 12(b)(6) dismissal is proper only where there is either a "lack of 26 a cognizable legal theory," or "the absence of sufficient facts alleged under a 27 cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th 28 Cir. 1988). The comi must accept all factual allegations pleaded in the complaint as MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 3 of 8 Page ID #:106 1 true, and const1ue them and draw all reasonable inferences from them in favor of the 2 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 3 1996). The comt need not, however, accept as true unreasonable inferences or 4 conclusory legal allegations couched in the form of factual allegations. See Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 6 IV. THE SAC VIOLATES RULE 8 OF THE FEDERAL RULES OF CIVIL 7 PROCEDURE. 8 Rule 8 requires a pleading to contain a short and plain statement of the claim 9 showing that the pleader is entitled to relief, and a demand for the relief sought. 10 Fed. R. Civ. Proc., R. 8(a)(2)-(3). "Although the Federal Rules adopt a flexible 11 pleading policy, a complaint must give fair notice and state the elements of the 12 claim plainly and succinctly." Hubbard v. CDCR, 2013 U.S. Dist. LEXIS 92262, at 13 * 14 (E.D. Cal. 2013) (citing Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th 14 Cir. 1984)). 15 The Plaintiffs SAC contains no discussion or description of the claim or 16 claims purporting to entitle him to relief. On this ground alone, the SAC must be 17 dismissed. See, e.g., Vang v. Hudson, 2009 U.S. Dist. LEXIS 93709, at *5 (E.D. 18 Cal. 2009) (dismissal warranted when the plaintiff had alleged causes of action, but 19 failed to do so in a "short and plain statement" of the claims). 20 V. PLAINTIFF CANNOT STATE A CLAIM FOR FRAUD. 21 A generous reading of the SAC shows that Plaintiff may be trying to asse1t a 22 claim for fraud. See SAC, at 1 :25-26. The elements of fraud are (1) a 23 misrepresentation; (2) knowledge of falsity; (3) intent to defraud; ( 4) justifiable 24 reliance; and ( 5) resulting damages. Under Rule 9(b ), fraud allegations are subject 25 to a higher pleading standard and must be specifically pleaded. Glen Holly 26 Entertainment, Inc. v. Tektronix, Inc., 100 F. Supp. 2d 1086, 1093-94 (C.D. Cal. 27 1999). 28 Here, Plaintiff fails to plead the elements of fraud at all, much less with the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 4 of 8 Page ID #:107 1 requisite specificity. Rule 9(b) requires plaintiffs alleging fraud against a corporate 2 entity to specifically allege: (1) the misrepresentation, (2) the speaker and his or her 3 authority to speak, (3) when and where the statements were made, ( 4) whether the 4 statements were oral or written, (5) if statements were written, the specific 5 documents containing the representations, and ( 6) the manner in which the 6 representations were allegedly false or misleading. Moore v. Kayport Package 7 Express, Inc., 885 F.2d 531, 549 (9th Cir. 1989). 8 Critically, Plaintiff fails to identify any misrepresentation whatsoever, much 9 less one made by BANA. The only statement alleged by Plaintiff is one from 10 Plaintiff- that he "said 'No' for three months" (SAC, 1 :27) - but he makes no 11 allegation that BANA made any representation at all, let alone a misrepresentation. 12 Plaintiff does not identify any statement by BANA, much less how any such 13 statement was false or misleading and how the unidentified statement was made 14 with the intent to defraud and with knowledge of its falsity. Plaintiff also fails to 15 identify any reliance on the purported misrepresentation, and he fails to allege how 16 he was injured as a proximate result of his reliance. Any one of these failures 17 renders the claim fatally flawed; here, he omits all five required elements. 18 Even if Plaintiff had alleged the required elements for fraud, he cetiainly 19 could not do so with the specificity required by Rule 9(b ). He does not identify the 20 speaker and the speaker's authority, whether the alleged misstatements were written 21 or oral, or how they were false or misleading. The failure to plead these elements 22 renders the claim deficient, and it must be dismissed. 23 VI. ANY CLAIM FOR "ECONOMIC DURESS" FAILS. 24 As stated in BANA's prior Motion to Dismiss (Dkt. No. 7), if Plaintiff is 25 bringing a claim for economic duress, the claim fails because California does not 26 recognize a standalone claim for economic duress. Rather, it operates as an 27 affirmative defense excusing a party from its obligations under a contract. See Rich 28 & Whillock, Inc. v. Ashton Dev., Inc., 157 Cal. App. 3d 1154, 1160-61 (1984); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 5 of 8 Page ID #:108 1 accord Osanitsch v. Marconi PLC, 2009 U.S. Dist. LEXIS 118332, at* 13-14 (N. D. 2 Cal. Dec. 21, 2009) (general release unenforceable due to economic duress). 3 Nevetiheless, even if Plaintiff is somehow seeking to excuse his performance 4 under an unspecified contract related to his credit card, he cannot allege excuse due 5 to economic duress. The doctrine applies when a "perpetrator commits a wrongful 6 act which is sufficiently coercive to cause a reasonably prudent person faced with no 7 reasonable alternative to succumb to the perpetrator's pressure." Osanitsch, supra, 8 at*14. 9 A wrongful act under this doctrine has been illustrated as "[t]he asse1iion of a 10 claim known to be false or a bad faith threat to breach a contract or to withhold a 11 payment." Id. However, "the fact that a plaintiff may feel economic pressure to 12 sign an agreement does not raise any inferences about a defendant's conduct, much 13 less their wrongful conduct." Id., at *15. Accordingly, Plaintiff's mere allegation 14 that BANA repeatedly offered him a credit card is not sufficiently coercive - he 15 could simply have continued to refuse the extension of credit, as he admits he did on 16 at least two occasions. FAC, ii 5. Therefore, even if raised to excuse his 17 performance, an asse1iion of economic duress fails. 18 VII. CONCLUSION 19 Plaintiffs SAC is fatally deficient. He fails to asseti any claim, much less 20 through a "sh01t and plain statement" as required under federal law. If the SAC 21 could be read as asse1iing a claim for fraud, Plaintiff has failed to allege a single 22 required element for this cause of action. This is Plaintiffs third oppotiunity to 23 state a claim, and he again has failed to do so. Given the history of Plaintiffs 24 pleadings, any further amendment would be futile. 25 Accordingly, Defendant Bank of America, N.A. respectfully requests that the 26 Comi grant its Motion to Dismiss the Second Amended Complaint in its entirety, 27 without leave to amend. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 6 of 8 Page ID #:109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: January 24, 2017 Respectfully submitted, MCGUIREWOODS LLP By: Isl Adam F. Summe1.field Adam F. Summerfield Attorneys for Defendant Bank of America, N.A. (erroneously sued as "Bank of America") MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 7 of 8 Page ID #:110 1 CERTIFICATE OF SERVICE 2 I hereby certify that on January 24, 2017, I electronically filed the foregoing 3 document entitled NOTICE OF MOTION AND MOTION TO DISMISS 4 SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND 5 AUTHORITIES with the Clerk of the Court for the United States District Court, 6 Central District of Califo1nia using the CM/ECF system and served a copy of same 7 upon all counsel of record via the Court's electronic filing system. 8 9 to: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I served a copy of the above document by Overnight Mail and also U.S. Mail Adel Attili 7546 Stewart and Gray Rd., #105 Downey, CA 90241 By: Isl Adam F. Summerfield CERTIFICATE OF SERVICE Case 2:16-cv-03988-DMG-JPR Document 20 Filed 01/24/17 Page 8 of 8 Page ID #:111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Adel Attili, Plaintiff, vs. Bank of America, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. 2:16-cv-03988-DMQ-JPR [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT Defendant. 15 The motion to dismiss Plaintiff's Second Amended Complaint, filed by 16 Defendant Bank of America, N.A. (erroneously sued as "Bank of America") 17 ("BANA") came on for regular hearing before the Court on March 8, 2017 at 9:30 18 a.m. After consideration of the motion, along with any opposition and reply papers 19 and the arguments of counsel, if any, and good cause appearing, the Court 20 GRANTS BANA's Motion to Dismiss the Second Amended Complaint WITH 21 PREJUDICE. IT IS SO ORDERED. 22 23 24 DATED: ____ _ 25 26 27 28 HON. DOLLY M. GEE UNITED STATES DISTRICT JUDGE fPROPOSEDl ORDER GRANTING MOTION TO DISMISS Case 2:16-cv-03988-DMG-JPR Document 20-1 Filed 01/24/17 Page 1 of 3 Page ID #:112 1 Respectfully Submitted by: 2 MCGUIREWOODS LLP Adam F. Summerfield (SBN 259842) 3 1800 Century Park East, 8th Floor Los Ahgeles, CA 90067-1501 4 Telephone: 310.315.8200 Facsimile: 310.315.8210 5 Attorneys for Defendant Bank of America, N.A. (erroneously sued as "Bank of 6 America") 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fPROPOSEDl ORDER GRANTING MOTION TO DISMISS Case 2:16-cv-03988-DMG-JPR Document 20-1 Filed 01/24/17 Page 2 of 3 Page ID #:113 I CERTIFICATE OF SERVICE 2 I hereby certify that on January 24, 2017, I electronically filed the foregoing 3 document entitled [PROPOSED] ORDER GRANTING MOTION TO 4 DISMISS SECOND AMENDED COMPLAINT with the Clerk of the Court for 5 the United States District Court, Central District 'of California using the CM/ECF 6 system and served a copy of same upon all counsel of record via the Court's 7 electronic filing system. 8 I served a copy of the above document by Overnight Mail and also U.S. Mail 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to: Adel Attili 7546 Stewart and Gray Rd., #105 Downey, CA 90241 By: Isl Adam F. Summerfield CERTIFICATE OF SERVICE Case 2:16-cv-03988-DMG-JPR Document 20-1 Filed 01/24/17 Page 3 of 3 Page ID #:114