Edward Jackson v. Bank of America

NOTICE OF MOTION AND MOTION to Dismiss Plaintiffs First Amended Complaint

C.D. Cal.April 5, 2017

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 70001.0415/10614711.1 Case No. 5:16-cv-02522-JGB-SP Notice of Motion and Motion to Dismiss Plaintiff’s First Amended Complaint ERIN S. KUBOTA (State Bar No. 228371) esk@severson.com KENNETH S. MILLER (State Bar No. 285297) ksm@severson.com SEVERSON & WERSON A Professional Corporation The Atrium 19100 Von Karman Avenue, Suite 700 Irvine, California 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 MARK JOSEPH KENNEY (State Bar No. 87345) mjk@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant BANK OF AMERICA, N.A. (erroneously sued as Bank of America) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA — EASTERN DIVISION EDWARD JACKSON, Plaintiff, vs. BANK OF AMERICA, and DOES 1 through 20 inclusive, Defendants. Case No. 5:16-cv-02522 JGB (SPx) Hon. Jesus G. Bernal Courtroom 1 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Date: May 15, 2017 Time: 9:00 a.m. Ctrm.: 1 Action Filed: December 6, 2016 Trial Date: None Set Case 5:16-cv-02522-JGB-SP Document 20 Filed 04/05/17 Page 1 of 2 Page ID #:75 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 70001.0415/10614711.1 1 Case No. 5:16-cv-02522-JGB-SP Notice of Motion and Motion to Dismiss Plaintiff’s First Amended Complaint NOTICE OF MOTION PLEASE TAKE NOTICE that on May 15, 2017, at 9:00 a.m., or as soon thereafter as counsel may be heard before the Honorable Jesus G. Bernal in Courtroom 1 of the above-entitled court at 3470 Twelfth Street Riverside, CA 92501-3801, Defendant Bank of America, N.A. (sued herein as Bank of America) (“BofA”) will and hereby does move to dismiss Plaintiff’s First Amended Complaint and each of its counts. Defendants bring this motion pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the Complaint fails to allege any claim on which relief may be granted. The motion is based on this notice of motion and motion, the accompanying memorandum of points and authorities, the complaint, the records on file in this action, and any further briefs, evidence, authorities, or argument presented at or before the hearing of this motion. Pursuant to Local Rule 7-3, defense counsel called and attempted to meet and confer with Plaintiff prior to brining this motion. However, counsel was unable to reach Plaintiff to meet and confer prior to bringing this motion. DATED: April 5, 2017 SEVERSON & WERSON A Professional Corporation By: /s/ Kenneth S. Miller Kenneth S. Miller Attorneys for Defendant BANK OF AMERICA, N.A. (erroneously sued as Bank of America) Case 5:16-cv-02522-JGB-SP Document 20 Filed 04/05/17 Page 2 of 2 Page ID #:76 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 70001.0415/10614711.1 1 Case No. 5:16-cv-02522-JGB-SP Memorandum of Points and Authorities MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Pro per Plaintiff Edward Jackson (“Plaintiff”) generally alleges that Defendant Bank of America, N.A. (sued herein as Bank of America) (“BofA” or “Defendant”) violated the law by failing to allow Plaintiff to cash $720 million dollars’ worth of checks drawn on unnamed Chinese and Canadian Banks. Plaintiff’s Complaint appears to allege two claims for violation of the Equal Credit Opportunities Act (“ECOA”), and violation of the Fair Credit Reporting Act (“FCRA”), alleging that, in 2003, BofA declined to cash $925,000,000 worth of checks due to Plaintiff’s race. However, Plaintiff’s claim fails for numerous reasons. First, Plaintiff’s claims are time-barred. The statute of limitations under both the ECOA and FCRA is five years. Here, Plaintiff alleges that the violation occurred in 2003 – approximately fourteen years before this suit was filed. Plaintiff’s claims are accordingly time-barred and fail for that reason alone. Furthermore, Plaintiff has failed to allege any of the necessary elements to state a claim under either ECOA or FCRA. Plaintiff’s two page complaint is woefully insufficient, and fails to allege numerous necessary elements to state a viable claim. Plaintiff’s pleading is deficient on its face, and fails as a matter of law. Defendant’s motion to dismiss should accordingly be granted. As there is no way for Plaintiff to remedy the statute of limitations issue, and because Plaintiff has already been given leave to amend, additional leave to amend should be denied, and the case should be dismissed with prejudice. II. STANDARD ON MOTION TO DISMISS Under Federal Rule of Civil Procedure 12(b)(6), a party may challenge the sufficiency of the statement of the claim for relief. (Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).) In deciding a Rule 12(b)(6) motion, the court must “accept as true all of the factual allegations set out in plaintiff’s complaint, draw Case 5:16-cv-02522-JGB-SP Document 20-1 Filed 04/05/17 Page 1 of 5 Page ID #:77 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 70001.0415/10614711.1 2 Case No. 5:16-cv-02522-JGB-SP Memorandum of Points and Authorities inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally.” (Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127 (2nd Cir. 2009); see also Scott v. Ambani, 577 F.3d 642, 646 (6th Cir. 2009); Gregory v. Dillard’s, Inc., 565 F.3d 464, 496 (8th Cir. 2009).) It need not, however, “accept as true a legal conclusion couched as a factual allegation.” (Twombly, 550 U.S. at 555.) Accepting only the factual allegations set forth in a plaintiff’s complaint as true, the court must decide if plaintiff is entitled to some form of legal remedy. (Twombly, 550 U.S. at 555.) Granting a Rule 12(b)(6) motion to dismiss is proper where there is either a lack of a cognizable legal theory or the absence of sufficient facts to support a cognizable legal theory. (Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).) A dismissal will also be proper if a complaint is vague, conclusory and fails to set forth material facts in support of the allegations. (Northstar Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 583 (9th Cir. 1983).) III. PLAINTIFF’S ECOA CLAIM FAILS Plaintiff’s first cause of action is for violation of the ECOA. Plaintiff alleges Defendant violate d the ECOA by refusing to negotiate $925,000,000 worth of bonds in 2003. (FAC ¶¶ 6-7.) Plaintiff furthermore alleges that Defendant refused to negotiate the bonds “without stating a reason.” (FAC ¶¶ 10-11.) Based on these allegations, Plaintiff attempts to assert a claim under the ECOA. As set forth below, Plaintiff’s claim fails. A. Plaintiff’s Claim Is Time-Barred The statute of limitations for a violation under ECOA is five years. (15 U.S.C. § 1691e(f).) Here, Plaintiff alleges the violation occurred in 2003, approximately fourteen years before this action was filed and nine years outside the limitations period. Accordingly, Plaintiff’s claim is time-barred, and Plaintiff’s claim fails for that reason alone. Case 5:16-cv-02522-JGB-SP Document 20-1 Filed 04/05/17 Page 2 of 5 Page ID #:78 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 70001.0415/10614711.1 3 Case No. 5:16-cv-02522-JGB-SP Memorandum of Points and Authorities B. Plaintiff Has Not Alleged The Elements Of An ECOA Claim Under ECOA, it is unlawful “for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract).” (Hafiz v. Greenpoint Mortgage Funding, Inc. (N.D. Cal. 2009) 652 F.Supp.2d 1039, 1045 (N.D. Cal. 2009); Merritt v. Countrywide Financial Corporation (N.D. Cal., Sept. 17, 2015, No. 09-CV-01179-BLF) 2015 WL 5542992, at *17(citing 15 U.S.C. §1691(a)). To plead an ECOA violation claim, a plaintiff must allege: “(1) she is a member of a protected class; (2) she applied for credit with defendants; (3) she qualified for credit; and (4) she was denied credit despite being qualified.” (Hafiz, 652 F.Supp.2d at 1045). Here, Plaintiff has not pled essential elements for an ECOA claim. Particularly, Plaintiff has not alleged he applied for credit with BofA, qualified for credit, and was denied credit based on his race. Instead, Plaintiff merely alleges that Bank of America refused to cash $925 million worth of bonds in 2003. Cashing checks is not protected under the ECOA. (15 U.S.C. § 1691(a); 15 U.S.C. § 1691a(d).) Accordingly, even if true, Plaintiff’s allegation that Bank of America refused to negotiate nearly a billion dollars in bonds in 2003 does not state a claim under the ECOA, because negotiating bonds is not protected under the ECOA. Finally, Plaintiff has not alleged that he would have obtained credit but for his race. Here, Plaintiff’s FAC admits that Bank of America “never gave plaintiff a reason for not cashing the negotiable instrument,” and that Bank of America denied Plaintiff credit “without stating a reason . . . .” (FAC ¶¶ 10-11) Accordingly, Plaintiff has failed to allege that he qualified for credit, and would have obtained credit but for his disparate treatment based on his race. Plaintiff’s failure to so plead is fatal to his claim. Plaintiff’s claim accordingly fails as a matter of law and Defendant’s motion to dismiss should be granted without leave to amend. Case 5:16-cv-02522-JGB-SP Document 20-1 Filed 04/05/17 Page 3 of 5 Page ID #:79 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 70001.0415/10614711.1 4 Case No. 5:16-cv-02522-JGB-SP Memorandum of Points and Authorities IV. PLAINTIFFS FCRA CLAIM FAILS Plaintiff’s FAC also includes reference to a FCRA violation. However, Plaintiff fails to allege any facts to support a FCRA claim, and in any event, any FCRA claim would also be time-barred. A. Plaintiff’s FCRA Claim Is Time-Barred The statute of limitations under the FCRA is five years after the date of the violation, or two years after the date of discovery by the Plaintiff, whichever occurred earlier. (15 U.S.C. § 1681p.) Here, Plaintiff alleges the violation occurred in 2003, fourteen years before this action was filed, and nine years outside the limitations period. Plaintiff’s claim is accordingly time-barred, and fails as a matter of law. B. Plaintiff Has Not Pled The Elements Of A FCRA Claim In order to state a claim under the FCRA against a furnisher of credit information, Plaintiff must allege that after receiving notice of a dispute from credit reporting agencies, the furnisher failed to conduct a reasonable investigation. Specifically, Plaintiff must allege: “(1) [s]he found an inaccuracy in [her] credit report; (2) [s]he notified a credit reporting agency; (3) the credit reporting agency notified the furnisher of the information about the dispute; and (4) the furnisher failed to investigate the inaccuracies or otherwise failed to comply with the requirements of 15 U.S.C. § 1681s–2(b)(1)(A)–(E).” Biggs, 2016 WL 5235043, at *1. To state an inaccuracy, Plaintiff must raise a genuine issue as to whether the disputed item was inaccurate. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 890 (9th Cir. 2010). Plaintiff must further allege facts sufficient to demonstrate that the dispute was sufficient to trigger an investigation of credit reporting and that the investigation was unreasonable. Gorman at 1160; see also: Abbot v. Experian Info. Sols., Inc., 179 F. Supp. 3d 940 (N.D. Cal. 2016). Finally, Plaintiff must allege having incurred actual damages. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016), as revised (May 24, 2016) (“Spokeo”). Case 5:16-cv-02522-JGB-SP Document 20-1 Filed 04/05/17 Page 4 of 5 Page ID #:80 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 70001.0415/10614711.1 5 Case No. 5:16-cv-02522-JGB-SP Memorandum of Points and Authorities Here, Plaintiff fails to allege any of the necessary elements for a FCRA claim. Plaintiff fails to plead any facts regarding his credit report whatsoever. Plaintiff does not allege he found inaccuracies in his credit report, that he reported those inaccuracies, or that Defendant failed to adequately investigate those inaccuracies. Plaintiff’s claim accordingly fails, and Defendant’s motion should be granted. V. CONCLUSION For the foregoing reasons, Defendant’s motion to dismiss should be granted without leave to amend. DATED: April 5, 2017 SEVERSON & WERSON A Professional Corporation By: /s/ Kenneth S. Miller Kenneth S. Miller Attorneys for Defendant BANK OF AMERICA, N.A. (erroneously sued as Bank of America) Case 5:16-cv-02522-JGB-SP Document 20-1 Filed 04/05/17 Page 5 of 5 Page ID #:81 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 70001.0415/10614711.1 Case No. 5:16-cv-02522-JGB-SP Proof of Service PROOF OF SERVICE At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Orange, State of California. My business address is The Atrium, 19100 Von Karman Avenue, Suite 700, Irvine, CA 92612. On April 5, 2017, I served true copies of the following document(s): DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT on the interested parties in this action as follows: Edward Jackson 6452 Riverside Ave. Riverside, CA 92506 Plaintiff, In Pro Per BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on April 5, 2017, at Irvine, California. Taylor P. Hankins Case 5:16-cv-02522-JGB-SP Document 20-2 Filed 04/05/17 Page 1 of 1 Page ID #:82