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Kennedy v. Wells Fargo Bank

United States District Court, D. Hawaii

July 30, 2018



          Derrick K. Watson United States District Judge


         Kennedy, proceeding pro se, filed a First Amended Complaint against Wells Fargo on June 14, 2018, alleging that it failed to close his accounts as requested, and as a result, an unpaid line of credit-that he disputes opening-continued to accrue interest, to the detriment of his credit rating. First Am. Compl. (“FAC”) at 2-5, Dkt. No. 29.[1] The FAC, however, suffers from the same deficiencies as Kennedy's prior Complaint, previously identified in the Court's June 12, 2018 Order dismissing his claims with leave to amend. Dkt. No. 28 (6/12/18 Order). Because Kennedy once more fails to allege sufficient facts demonstrating that he is plausibly entitled to relief, Wells Fargo's Motion to Dismiss is GRANTED. Because Kennedy again fails to state a claim for relief, and because the Court determines that further leave to amend would be futile, the FAC is DISMISSED WITH PREJUDICE.


         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 FAC fails to allege any discernable basis for relief against Wells Fargo. Kennedy's threadbare allegations do not provide sufficient factual content or demonstrate that he is plausibly entitled to relief. Because Kennedy has proven unable to cure the deficiencies previously identified in the Court's 6/12/18 Order, the Court GRANTS the Motion to Dismiss without further leave to amend, as detailed below.

         I. Defendant Wells Fargo's Motion to Dismiss Is Granted

         The FAC, like its predecessor, suffers from several deficiencies. Although Kennedy asserts diversity jurisdiction as the basis for the Court's subject matter jurisdiction under 28 U.S.C. § 1332(a) and seeks damages in the amount of $75, 000, the FAC does not specify any particular statutory or common law right under which his claims arise. Dismissal is appropriate due to the FAC'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)).

         In the FAC, Kennedy alleges that “Wells Fargo has failed to provide any documentation that I opened the account in question.” FAC at 1. It appears that he directed Wells Fargo to close any open accounts he held at the bank, but it failed to comply. According to Kennedy, he “asked for all accounts to be closed in September of 2016. Wells Fargo closed checking account [X]619 but failed to close or even disclose the revolving line of credit account.” FAC at 2. Instead, it “charged excessive interest rates.” FAC at 3. Later in the FAC, he expands upon Wells Fargo's failure to close the open line of credit-

The bank failed to close the open line of credit account when I requested all of my Wells Fargo accounts were to be closed in September of 2016. The bank closed my credit card account [X]619 in September of 2016; however, they let the open line of credit account remain open so they could charge additional fees and interest rates. I did not find out about this account until Jan 24, 2017 when my divorce was final[.]
Wells Fargo has reported this open line of credit as late to the 3 major bureaus as late and this has caused my credit to suffer. The account was closed by Wells Fargo in April of 2017 and for some unknown ...

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