United States District Court, N.D. California
ORDER DISMISSING COMPLAINT AND DENYING MOTIONS RE:
DKT. NOS. 1, 2, 3
DONATO, UNITED STATES DISTRICT JUDGE.
plaintiff Kabita Choudhuri seeks a temporary restraining
order and permission for electronic case filing. Dkt. Nos. 2,
3. These motions are denied. The complaint is also dismissed
with leave to amend.
Court may dismiss a complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim on its own
motion. See Omar v. Sea-Land Serv., Inc., 813 F.2d
986, 991 (9th Cir. 1987). Rule 8(a)(2) requires the complaint
to provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To meet that rule and survive a Rule
12(b)(6) motion to dismiss, a plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). This calls for enough
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). Despite the Court's duty “to construe pro se
pleadings liberally, including pro se motions as well as
complaints, ” plaintiff's claims are dismissed for
the reasons discussed below. Bernhardt v. Los Angeles
Cty., 339 F.3d 920, 925 (9th Cir. 2003).
complaint does not state a plausible legal claim or grounds
for any relief. The complaint discusses, at length, federal
schemes like the Home Affordable Modification Program, Dkt.
No. 1 at 3-4, but fails to explain how there has been any
violation of that program.
has failed to allege facts that demonstrate the named
defendants, Specialized Loan Servicing and Bosco Credit LLC,
are liable for any misconduct. Plaintiff claims that Wells
Fargo, not a party to this case, “fraudulently
foreclosed” between April 2007 and September 2007 and
alleges many other instances of fraud. Id. at 11.
However, simply asserting that an action was taken
“fraudulently, ” as plaintiff does throughout the
complaint, is not enough to make out a plausible claim.
See Fed. R. Civ. P. 9 (“In alleging fraud or
mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person's mind may be
alleged generally.”). Similarly, plaintiff accuses
defendant Specialized Loan Servicing of “applying
illegal fees and unfair interest, ” but does not
explain why any fees are illegal or interest unfair. Dkt. No.
1 at 16. For Count 4, plaintiff should describe in more
detail her submission of a completed loan modification
application, defendants' pending review of that
application, and defendants' efforts to foreclose,
including relevant dates.
RESTRAINING ORDER AND INJUNCTION
standards for deciding whether to grant a temporary
restraining order are like those the Court uses to decide
whether to issue a preliminary injunction. See Stuhlbarg
Int'l Sales Co. v. John D. Brush & Co., 240 F.3d
832, 839 n.7 (9th Cir. 2001). The Supreme Court has
established that a plaintiff “seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tip in his favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). Given the Court's
decision on the sufficiency of the complaint, plaintiff is
not likely to succeed on the merits and the motion for a
temporary restraining order is denied. The Court also takes
note that plaintiff is “hopeful that a solution may be
offered by the alleged current owner of the alleged bad
debt” because of recent correspondence with defendant
Bosco Credit LLC. Dkt. No. 2 at 5.
the Court has considerable doubt that amendment will be
effective, Choudhuri may file an amended complaint by no
later than August 14, 2019. Failure to meet
that deadline will result in dismissal with prejudice under
Rule 41(b). If Choudhuri chooses to amend, she should be
mindful of the legal standards discussed in this order.
request for permission to use electronic case filing is