Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kennedy v. Parker

United States District Court, D. Hawaii

June 12, 2018

STUART PARKER, CEO, USAA, et al., Defendants.


          Derrick K. Watson, United States District Judge.


         Kennedy, proceeding pro se, initiated this case on February 20, 2018, against Defendants Nicholas Guilliam and Wells Fargo; Stuart Parker and USAA Federal Savings Bank; and Sam Anderson and Chase Bank, alleging only that “all three banks continued to charge [him] for accounts [he] did not open, ” and seeking to “[r]epair all 3 credit reports.” Compl. at 9-10, Dkt. No. 1.[1] Because Kennedy fails to allege facts demonstrating that he is plausibly entitled to relief from any defendant or that establish this Court's subject matter jurisdiction, the Wells Fargo Defendants' Motion to Dismiss is GRANTED. As detailed below, the Complaint is dismissed with leave to amend in order to allow Kennedy the opportunity to (1) clearly identify the parties he intends to sue; (2) identify the basis for the Court's subject matter jurisdiction; and (3) assert plausible claims for relief. All of Kennedy's pending motions are DENIED as moot.[2]


         Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for failure to state a claim upon which relief can be granted. Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not constitute a short and plain statement of the claim showing that the pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.

         Because Kennedy is proceeding pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). A court may, however, deny leave to amend where further amendment would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons “repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment”).


         Even liberally construed, the Complaint fails to allege any discernable basis for relief against any party. Kennedy's threadbare allegations do not provide sufficient factual content or demonstrate that he is plausibly entitled to relief. Because amendment may be possible, the Court grants Kennedy leave to file an amended complaint, with instructions below.

         I. Defendants' Motion to Dismiss Is Granted

         The Complaint suffers from several deficiencies. Although Kennedy asserts a federal question as the basis for the Court's subject matter jurisdiction under 28 U.S.C. § 1331, and lists generally the Depository Institutions Deregulation and Monetary Control Action of 1980 (“the DIDA”), the Complaint does not further specify any particular provision in the DIDA under which his claims arise. He states only that “all three banks continued to charge me for accounts I did not open, ” Compl. at 9, and requests that they “[r]epair all 3 credit reports.” Id. at 10. That is all.[3] Dismissal is appropriate due to the Complaint's “‘lack of a cognizable legal theory [and] the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). To the extent the Court is able to discern specific claims or causes of action, it addresses them below in order to provide guidance on the filing of an amended complaint.

         B. The Complaint Fails to State a Claim for Relief

         First, the Complaint fails to comply with Rule 8, which mandates that a complaint include a “short and plain statement of the claim, ” Fed.R.Civ.P. 8(a)(2), and that “each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1); see also McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996) (affirming dismissal of complaint where “one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery”). Neither Kennedy's Complaint naming Wells Fargo and Nicholas Guilliam nor his subsequent filings sufficiently indicate who is being sued, in what capacity, or on what basis, in this civil action. Even applying the most liberal pleading standard, the Court cannot discern from the pleadings the conduct on which any claim is based, other than a vague grievance related to Kennedy's accounts and credit reports. These bare allegations fail to state a claim and do not contain adequate factual content to allow the Court to draw the reasonable inference that any defendant is liable for the misconduct alleged.

         Second, to the extent Kennedy attempts to allege claims against any defendant based upon fraud or fraudulent conduct, the Complaint does not satisfy Federal Rule of Civil Procedure 9(b), which requires that “a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). An allegation of fraud is sufficient if it “identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (internal citations and quotations omitted). “Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). A plaintiff must also explain why the alleged conduct or statements are fraudulent. In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 n.7 (9th Cir. 1994) (en banc), superseded by statute on other grounds by 15 U.S.C. § 78u-4. The Complaint does not sufficiently identify such facts as the times, dates, places, or other details of the alleged fraudulent activity. Neubronner, 6 F.3d at 672. Although unclear, to the extent Kennedy attempts to allege any claim sounding in fraud, the claim is dismissed. Because amendment may be possible, dismissal is with leave to amend.

         B. Subject Matter ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.