United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS WELLS FARGO BANK, N.A. AND
NICHOLAS GUILLIAM'S MOTION TO DISMISS
Derrick K. Watson United States District Judge
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. 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
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.
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”).
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.
Defendant Wells Fargo's Motion to Dismiss Is
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)).
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 ...