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Jose De Jesus Montes Lopez v. Bank of America; A Business Form Unknown; Prlap Inc.; Does I Through


March 25, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


(Doc. 1)

Plaintiff Jose De Jesus Montes Lopez files his complaint against Defendants pro se. This matter has been referred to a magistrate judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.

I. Screening

A court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-55 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992). Accordingly, this Court screens all complaints filed by plaintiffs in propria persona to ensure that the action is not frivolous or malicious, that the action states a claim upon which relief may be granted, and that the complaint does not seek monetary relief from a defendant who is immune from such relief.

II. Pleading Standards

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies here. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Twombly, 550 U.S. at 555.

Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, a plaintiff must set forth the legal and factual basis for his claim.

III. Unclear Allegations

Because of the disjointed and incomplete nature of the factual allegations, the Court is unable to determine with certainty the facts underlying this case. Although Plaintiff identifies himself and Defendants Bank of America and PRLAP INC. (collectively, "Defendants"), he includes no allegations identifying David Alan Tikal*fn1 or the KATN Revocable Living Trust, nor explains the nature of the transaction(s) leading to Tikal and the trust's substitution as trustee for Defendants.

Similarly, Plaintiff provides no factual allegations that explain why Defendants were required to "cease and desist" following the assignment to Tikal and the trust. Based on Plaintiff's limited allegations, it appears that Plaintiff may be alleging that Defendants were not entitled to collect funds due under a mortgage note following Plaintiff's unilateral reassignment of the property to another party. The factual allegations are insufficient to permit the Court to understand clearly what Plaintiff intends to allege, however, and the Court will not speculate on what Plaintiff may have intended to allege or claim. Should Plaintiff elect to amend his complaint, as this order permits him to do, he must set forth detailed factual allegations in a logical sequence sufficient to permit the Court to understand the nature of his claims and the facts that support them.

IV. Exhibits to Complaint

The Court is not a repository for the parties' evidence. Originals or copies of evidence are properly submitted when the course of the litigation brings the evidence into question (as upon a summary judgment motion, at trial, or upon the Court's request). During the screening process, which Plaintiff's complaint is now undergoing, Plaintiff is required only to state a prima facie claim for relief. Submission of evidence is premature. Accordingly, a plaintiff is well advised to state fully the facts supporting his claims against the defendants and to refrain from attaching exhibits.

When screening a plaintiff's complaint, the Court must assume the truth of the factual allegations. Submitting exhibits to support the complaint's allegations is generally unnecessary. When a plaintiff is compelled to submit exhibits with a complaint, such exhibits must be attached to the complaint and incorporated by reference. Fed. R. Civ. Proc. 10(c). Plaintiff is cautioned that, in determining whether a complaint states cognizable claims, the Court's duty is to evaluate the complaint's factual allegations, not to wade through exhibits.

V. "John Doe" Defendants

Plaintiff also names individual and corporate "John Doe" defendants, but never alleges who these John Does are or what they allegedly did. The Federal Rules of Civil Procedure include no provision "permitting the use of fictitious defendants." McMillan v. Department of Interior, 907 F.Supp. 322, 328 (D.Nev. 1995), aff'd, 87 F.3d 1320 (9th Cir. 1996), cert. denied, 519 U.S. 1132 (1997). See also Fifty Associates v. Prudential Ins. Co., 446 F.2d 1187, 1191 (9th Cir. 1970). "As a general rule, the use of 'John Doe' to identify a defendant is not favored." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Nonetheless, a plaintiff must be afforded an opportunity to identify the unknown defendants through discovery, unless it is clear that discovery will not reveal their identities or the complaint must be dismissed for other reasons.

Id. "While Doe pleading is disfavored, it is not prohibited in federal practice." Lopes v. Vieira, 543 F.Supp.2d 1149, 1152 (E.D.Ca. 2008).

Here, the "John Doe" defendants are simply listed in the caption without otherwise being specifically identified and linked to any specific act or omission relating to Plaintiff's claims. As a result, the Court has no clue why the John Does are being named as defendants. Compare Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 390 n. 2 (1971) (in which "the District Court ordered that the complaint be served upon 'those federal agents who it is indicated by the records of the United States Attorney participated in the November 25, 1965, arrest of the petitioner'"), and Wakefield v. Thompson, 177 F.3d 1160, 1162 n. 4 (9th Cir. 1999) (although the plaintiff did not know the name of the officer who refused to provide the plaintiff's prescription when releasing plaintiff on parole, the plaintiff informed the Court that the name could be secured "by inspecting the 'parole papers that the plaintiff signed at the time of his release' and the 'Duty Roster for that day.'")

VI. Claims

As presently composed, the complaint sets forth a variety of unclear and disconnected factual allegations and a prayer for relief. Plaintiffs must identify the legal basis of his claim(s), tied to the factual allegations that support it. As previously discussed, the complaint must give the defendant and the Court fair notice of what the plaintiff's claim is and the grounds upon which it rests. See Swierkiewicz, 534 U.S. at 512.

VII. Conclusion and Order

Plaintiff's complaint fails to state a claim upon which relief may be granted. The Court will provide Plaintiff with an opportunity to file an amended complaint curing the deficiencies identified by the Court in this order. Plaintiff's amended complaint should be brief, Fed. R. Civ. P. 8(a), but must identify Plaintiff's legal claims and state what each named Defendant did that led to render it liable to Plaintiff under those claims. See Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988).

Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (citations omitted). Plaintiff should focus on identifying his legal claims and setting forth, as briefly but specifically as possible, the facts linking the defendants he names to the claims alleged.

Plaintiff is advised that any amended complaint supercedes all prior complaints, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff'd, 525 U.S. 299 (1999), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 15-220. "All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); accord Forsyth, 114 F.3d at 1474.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's amended complaint is dismissed with leave to amend for failure to state a claim;

2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint curing the deficiencies identified by the Court in this order; and

3. If Plaintiff fails to file an amended complaint within thirty (30) days from the date of service of this order, this action will be dismissed with prejudice for failure to state a claim.



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