Elisabeth I. Thieriot v. Bank of America, N.A., et al.

• Court: District Court, N.D. California
• Decided: June 10, 2026
• Docket: 3:25-cv-07769
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ELISABETH I. THIERIOT, Case No. 25-cv-07769-CRB

9 Plaintiff,

ORDER GRANTING MOTION TO 10 v. DISMISS

11 BANK OF AMERICA, N.A., et al., 12 Defendants.

13 14 Defendant Bank of America (BOA) moves to dismiss pro se Plaintiff Elizabeth 15 Thieriot’s second amended complaint (SAC) in this case about allegedly unauthorized 16 withdrawals of funds from Thieriot’s account(s). See Mot. (dkt. 52); SAC (dkt. 51). The 17 Court recently vacated the motion hearing set for June 12, 2026, see Civil L.R. 7-1(b), and 18 now GRANTS the motion as explained below. 19 I. BACKGROUND 20 This case has an extensive procedural history given its young age: 21 1. Thieriot brought suit in September 2025 and applied for a temporary 22 restraining order. See Compl. (dkt. 1); App. for TRO (dkt. 4). 23 2. The Court denied a TRO. See Order denying TRO (dkt. 8). 24

25 3. Thieriot again applied for a TRO. See 2nd App. for TRO (dkt. 13).

26 4. The Court again denied a TRO. See Order denying 2nd App. for TRO (dkt. 14). 27 1 6. The Court denied reconsideration. See Order denying Reconsid. (dkt. 17). 2 7. Thieriot responded to motions to dismiss the complaint by filing an improper 3 amended complaint. See MTD BOA (dkt. 22); MTD Indiv. Defs. (dkt. 30); 4 “Amended Complaint” (dkt. 41).

5 8. The Court held that the “Amended Complaint” did not comply with Rule 15 of the Federal Rules of Civil Procedure, struck that document, and held that 6 the motions to dismiss remained pending. See Order re “Amended 7 Complaint” (dkt. 42).

8 9. The Court then granted the motions to dismiss. See Order Granting MTDs 9 (dkt. 44).

10 10. Thieriot filed a first amended complaint (FAC). See FAC (dkt. 45).

11 11. The Court then granted the motions to dismiss the FAC. See Order granting 12 MTD FAC (dkt. 50). The Court explained that “Thieriot may file an amended complaint that includes TILA, FDCPA, civil RICO, and FCRA 13 claims against BOA if she can do so in good faith given the authority cited herein and in BOA’s motion.” Id. at 2. 14

15 12. Thieriot filed a second amended complaint. See SAC.

16 Bank of America has now filed a motion to dismiss the SAC. See Mot. The motion 17 is fully briefed. See Opp’n (dkt. 54); Reply (dkt. 57). 18 II. LEGAL STANDARD 19 Under Rule 12(b)(6), the Court may dismiss a complaint for failure to state a claim 20 upon which relief may be granted. The Court may base dismissal on either “the lack of a 21 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 22 theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (cleaned 23 up). A complaint must plead “sufficient factual matter, accepted as true, to state a claim to 24 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned 25 up). A claim is plausible “when the plaintiff pleads factual content that allows the court to 26 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 27 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 1 statements, do not suffice” to survive a 12(b)(6) motion. Id. (citing Bell Atlantic v. 2 Twombly, 550 U.S. 544, 555 (2007)). When evaluating a motion to dismiss, the Court 3 “must presume all factual allegations of the complaint to be true and draw all reasonable 4 inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 5 561 (9th Cir. 1987). “[C]ourts must consider the complaint in its entirety, as well as other 6 sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in 7 particular, documents incorporated into the complaint by reference, and matters of which a 8 court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 9 308, 322 (2007). 10 If a court dismisses a complaint for failure to state a claim, it should “freely give 11 leave” to amend “when justice so requires.” Fed. R. Civ. Proc. 15(a)(2). A court may 12 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the 13 movant, repeated failure to cure deficiencies by amendment previously allowed, undue 14 prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of 15 amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 16 Courts must construe pro se pleadings liberally and hold such pleadings to a less 17 stringent standard than those drafted by attorneys. Boag v. MacDougall, 454 U.S. 364, 18 365 (1982) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9 (1980) (“It is settled law that the 19 allegations of [a pro se litigant’s complaint] ‘however inartfully pleaded’ are held ‘to less 20 stringent standards than formal pleadings drafted by lawyers . . . .’”) (quoting Haines v. 21 Kerner, 404 U.S. 519, 520 (1972)). A court should dismiss a pro se complaint if “it is 22 absolutely clear that the deficiencies of the complaint could not be cured by 23 amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 24 III. DISCUSSION 25 BOA advances five bases for dismissal: (A) that the SAC asserts claims beyond 26 those that the Court granted Thieriot leave to amend; (B) that the SAC fails to comply with 27 Rule 8 of the Federal Rules of Civil Procedure; (C) that claim preclusion bars the claims 1 the SAC fails to state a claim under TILA, Civil RICO, or the FCRA. BOA asks that 2 dismissal be with prejudice. 3 A. Claims Beyond Those Permitted Leave to Amend 4 BOA first argues that the SAC asserts claims that go beyond those that the Court 5 granted Thieriot leave to amend. See Mot. at 4. This is correct. The Court’s order 6 granting the previous motion to dismiss allowed Thieriot to “file an amended complaint 7 that includes TILA, FDCPA, civil RICO, and FCRA claims against BOA if she can do so 8 in good faith given the authority cited herein and in BOA’s motion.” Mot. at 2. The SAC 9 includes claims for (1) “unauthorized electronic fund transfers,” pursuant to 15 U.S.C. § 10 1693g; (2) “unauthorized use of credit,” pursuant to 15 U.S.C §§ 1640 and 1643; (3) 11 “billing errors,” pursuant to 15 U.S.C. § 1666; (4) “false entries,” pursuant to 18 U.S.C. § 12 1005 and 12 U.S.C. § 503; (5) “wire fraud,” pursuant to 18 U.S.C. § 1343; (6) 13 “racketeering,” pursuant to 18 U.S.C. § 1962(c); and (7) “failure to investigate,” pursuant 14 to 15 U.S.C. § 1681s-2(b). See SAC at 7–9. Thieriot did not have leave to add the new 15 EFTA, “false entries,” or wire fraud claims to an amended complaint. And Thieriot did 16 not respond to this argument in her opposition brief. Accordingly, the Court dismisses 17 those new claims. See Mohamed v. Cnty. of Sacramento, No. 2:16-cv-01327-JAM-EFB, 18 2017 WL 772145, at *4 (E.D. Cal. Feb.. 28, 2017) (citing Synagogue v. United States, 482 19 F.3d 1058, 1060 n.4 (9th Cir. 2007)). 20 B. Rule 8 21 BOA next argues that the SAC fails to comply with Rule 8 of the Federal Rules of 22 Civil Procedure. See Mot. at 5. The Court previously explained to Thieriot why her 23 complaints ran afoul of Rule 8. See, e.g., Order Granting MTDs at 2 (explaining why 24 “[t]he complaint here says both too little and too much”); Order granting MTD FAC at 2 25 (“the FAC on its own says ‘too little’ per Rule 8 of the Federal Rules of Civil Procedure . . 26 . leaving the Court and BOA in the dark about the basis for Thieriot’s claims.”). BOA 27 argues that Thieriot “repeats the same factual allegations multiple times—often verbatim— 1 at 5. That is correct. 2 The SAC is repetitive. See, e.g., SAC at 2 (“Plaintiff discovered the unauthorized 3 withdrawals in January 2014 and terminated the autopay routing, and Defendant furnished 4 derogatory credit information by approximately February 2014, resulting in credit 5 contraction and denial.”), id. at 3 (“Plaintiff discovered the unauthorized withdrawals in 6 January 2014 and terminated the autopay routing, and Defendant furnished derogatory 7 credit information by approximately February 2014, resulting in credit contraction and 8 denial.”), id. ¶ 2 (“All ledger entries, payment routing, and account actions described 9 herein were created, maintained, and executed through Defendant’s internally controlled 10 systems”), id. ¶ 39 (“All ledger entries, payment routing, and account actions described 11 herein were created, maintained, and executed through Defendant’s internally controlled 12 systems”). 13 The SAC is also vague. Although it is more specific than previous complaints in 14 identifying which ledger entries Thieriot contends are invalid, see SAC ¶ 26 (“The ledger 15 entries include: October 9, 2012 - $100,000.00”), the SAC still fails to allege necessary 16 information that would put BOA on notice, such as which accounts those charges appeared 17 on,1 how and when Thieriot provided notice to BOA that she disputed the charges, and 18 what billing error procedures Thieriot contends that BOA did not follow. While Thieriot 19 need not allege such matters with particularity, it is still too difficult to understand the 20 basic facts and chronology of the events at issue. Thieriot does not address this argument 21 in her opposition brief, asserting instead that she complied with Iqbal and Twombly. See 22 Opp’n at 6. The Court therefore dismisses the complaint pursuant to Rule 8. 23 24 25 1 It is unclear what the relationship was between “Plaintiff’s American Express/Virgin Atlantic credit account,” SAC ¶ 6, and the “TD Ameritrade trust brokerage account,” id. ¶ 26 5, even as characterized by BOA. The SAC might be alleging that BOA improperly withdrew money from the closed American Express account in order to pay debts incurred 27 by the brokerage account, or the reverse, see id. ¶ 10 (“Defendant used those internal ledger entries to initiate and process withdrawals from the TD Ameritrade trust brokerage C. Claim Preclusion 1 BOA next argues that claim preclusion bars the SAC’s claims related to 2 unauthorized charges. See Mot. at 6. This is also true. The Court previously warned 3 Thieriot that some of her claims could be subject to claim preclusion but that her 4 allegations were not clear enough for the Court to make that determination. See Order 5 Granting MTDs at 4 n.4 (“The Court adds that some additional claims might fail as to 6 [BOA], because they could implicate claim preclusion. . . . The earlier state court litigation 7 between Thieriot and [BOA] certainly ended in a final judgment on the merits against 8 Thieriot.”); Order granting MTD FAC at 2 n.2 (“BOA argues that Thieriot’s claims might 9 be barred by claim preclusion . . . but without adequate allegations, the Court cannot assess 10 this.”). BOA argues that “the SAC makes clear that Plaintiff’s claims are predicated on the 11 very same unauthorized charges that were the subject of the Prior Litigation.” Mot. at 6. 12 The Court agrees. 13 “Res judicata, or claim preclusion, prohibits lawsuits on ‘any claims that were 14 raised or could have been raised’ in a prior action.” Stewart v. United States Bancorp, 297 15 F.3d 953, 959 (9th Cir. 2002) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 16 708, 713 (9th Cir. 2001)). “Res judicata applies when there is: ‘(1) an identity of claims; 17 (2) a final judgment on the merits; and (3) identity or privity between parties.’” Id. All 18 three elements are met here. 19 1. Identity of claims 20 First, there is an identity of claims. The Court can take judicial notice of the filings 21 in the previous litigation between the parties: Bank of America v. Thieriot, Case No. Civ 22 1901521 in the Superior Court of the State of California for the County of Marin. See RJN 23 (dkt. 53).2 In the previous litigation, BOA brought suit in 2019 against Thieriot, arguing 24

25 2 Thieriot argues that “Defendant’s reliance on judicial notice is improper and cannot be 26 used to resolve disputed facts.” See Opp’n at 2. But the Court is not looking at the filings in order to determine whether the ledger entries are valid or whether BOA appropriately 27 withdrew funds from Thieriot’s account(s); it is looking at the filings simply to determine whether the previous litigation was about the same thing as this litigation. See Stevenson 1 that she “failed to make periodic payments on the outstanding balance due” on her credit 2 account. RJN (dkt. 53-1) Ex. A at 3. Thieriot filed a cross complaint, alleging that BOA 3 breached the parties’ contract by failing to notify her of “large and suspicious charges 4 against her credit card in excess of $729,000 and, when [Thieriot] challenged the charges 5 for lack of authorization, failed to investigate properly and charge back the funds against 6 the merchant law firm.” RJN Ex. B at 8. The cross complaint alleges that “In or about 7 October 2011, [Thieriot] took out a credit card through Flying Club Virgin Atlantic for a 8 Virgin Atlantic American Express card and entered into a contract to use a credit card for 9 purchases and Services. [BOA] also entered into that same contract with [Thieriot] 10 granting [Thieriot] the right to dispute billing errors to alert [BOA] of suspicious charges.” 11 Id. at 9. It goes on to say that BOA “processed several large and unusual charges against 12 [Thieriot’s] card while [she] was out of the country, but failed to notify [her] of possible 13 unauthorized charges or fraud.” Id. And, it alleges, Thieriot “had set up automatic pay of 14 the credit card bill against her stock market account, which paid the charges as they arose.” 15 Id. Although the SAC does not reference a law firm charging Thieriot’s credit card, it 16 alleges that BOA allowed unauthorized withdrawals from her account without her 17 authorization. SAC ¶¶ 18–20, 29; see also id. ¶ 26 (“The merchant identified on the 18 ledger” appears to refer to the law firm). And it explains that “the total loss” was 19 $729,000.00,” id. ¶ 26, which is precisely the same amount she alleged that she was 20 damaged in the previous litigation, see RJN Ex. B at 9 (“As a direct and proximate result 21 of [BOA’s] breach of contract, [Thieriot] has been damaged in the sum of $729,000 which 22 [Thieriot] was required to pay based on [BOA’s] refusal to reimburse the unauthorized 23 charges”). 24 Thieriot maintains that the previous litigation was about different matters. She 25 alleges that “[t]he sums are different from Marin case discharge and claims here in Federal 26

27 for the purpose of determining whether a party’s claims are barred by res judicata.”) (citing 1 court,” see SAC at 3, but the SAC repeatedly uses the same $729,000 sum, see id. ¶¶ 12, 2 26, id. at 7 (“resulting in loss of $729,000.00 and consequential financial harm.”). The 3 main difference between the two cases is that the previous litigation involved state law 4 claims of breach of contract, breach of the covenant of good faith and fair dealing, breach 5 of fiduciary duty, and unjust enrichment, see RJN Ex. B at 8–11, while the SAC brings 6 federal statutory claims, see SAC at 7–9. But claim preclusion bars not only clams that 7 were raised in a previous litigation but claims that could have been raised. See Tahoe- 8 Sierra Preservation Council, Inc. v. Tahoe Reg. Planning Agency, 322 F.3d 1064, 1077–78 9 (9th Cir. 2003). Thieriot also argues that the SAC involves some facts (“post-closure 10 account activity,” “internal ledger-based transactions,” “continued enforcement,” and 11 “collection ongoing financial harm”) that “were not part of the prior litigation.” Opp’n at 12 7–8. But these seem to be just assertions that the earlier harms are still harming her. 13 Moreover, events following the previous litigation do not bear on the SAC’s TILA, FCRA, 14 or RICO claims, which are all based on withdrawals to Thieriot’s account(s) based on 15 invalid ledger entries. See SAC at 7–8 (alleging in support of TILA claim that BOA 16 withdrew funds without authorization, enforced charges through ledger entries on a closed 17 credit account, and failed to correct improper charges); id. at 9 (alleging in support of 18 FCRA claim that BOA “furnished information derived from internal ledger entries on a 19 closed account and failed to conduct a reasonable investigation or correct inaccurate 20 information”); id. at 8–9 (alleging in support of RICO claim that BOA “used those 21 communications” “to enforce unauthorized ledger entries and withdrawals,” “collect[ing] 22 unauthorized obligations,” and causing a “loss of $729,000.00.”).3 23 The previous litigation was therefore about the same thing as the present litigation. 24 2. Final Judgment 25 Second, the state court in the previous litigation granted summary judgment for 26

27 3 The RICO claim does allege that BOA’s RICO conduct occurred “from 2012 through 1 BOA. See RJN Exs. C, D.4 Despite Thieriot’s argument to the contrary, see Opp’n at 2 2 (“No final adjudication on the merits exists to support dismissal”), that is a final judgment 3 for the purposes of res judicata, see Bullard v. Blue Hills Bank, 575 U.S. 496, 506 (2015) 4 (order granting summary judgment is final); Stewart, 297 F.3d at 956 (dismissal with 5 prejudice is final); see also Order Granting MTDs at 4 n.4 (“The earlier state court 6 litigation between Thieriot and [BOA] certainly ended in a final judgment on the merits 7 against Thieriot.”). 8 3. Identity of Parties 9 Third, there is identity between the parties: Thieriot and BOA are the parties in 10 each. Compare SAC; RJN Exs. A–D. 11 Accordingly, claim preclusion bars the TILA, FCRA, and RICO claims. 12 D. SOL 13 BOA next argues that the relevant statutes of limitations bar Thieriot’s claims. See 14 Mot. at 8. The Court previously noted this issue. See Order granting MTD FAC at 2 n.2 15 (“BOA argues that Thieriot’s claims . . . might run afoul of the statute of limitations, but 16 without adequate allegations, the Court cannot assess this.”). The Court now agrees with 17 BOA. 18 The SAC alleges that BOA “created internal ledger entries in[a] closed account and 19 recorded those entries as transactions” between October 9, 2012 and October 31, 2013,” 20 SAC ¶ 8, and that Thieriot “discovered the unauthorized withdrawals in January 2014,” id. 21 at 2. Although Thieriot brought cross complaint about these matters in 2020, see RJN Ex. 22 B, she did not bring this case until September of 2025, see Compl. The statute of 23 limitations for her TILA claim is one year. See 15 U.S.C. § 1640(e). The statute of 24 limitations for her FCRA claim is two years. See 15 U.S.C. § 1681p(1). The statute of 25 limitations for her civil RICO claim is four years. See Agency Holding Corp. v. Malley- 26

27 4 This exhibit is actually a filing entitled “Final judgment after order granting motion for 1 Duff & Assocs., Inc., 483 U.S. 143, 146 (1987). Even starting the clock on Thieriot’s 2 claims at the date when she discovered the unauthorized withdrawals, her claims, brought 3 in 2025, are untimely. 4 Thieriot insists that the “statute of limitations arguments are premature and legally 5 insufficient,” see Opp’n at 2, because the untimeliness of her claims is not “apparent on the 6 face of the complaint,” id. at 13. Not so: her TILA, FCRA, and civil RICO claims all 7 relate to BOA conduct in 2012 and 2013. See SAC at 7–9. Thieriot insists that her 8 “claims are based on ongoing and repeated conduct,” including “collection demands 9 extending unto 2025 and 2026.” Opp’n at 13. But, as discussed above, the allegations that 10 actually support her TILA, FCRA, and RICO claims all occurred long ago. See SAC at 11 7–8 (alleging in support of TILA claim that BOA withdrew funds without authorization, 12 enforced charges through ledger entries on a closed credit account, and failed to correct 13 improper charges); id. at 9 (alleging in support of FCRA claim that BOA “furnished 14 information derived from internal ledger entries on a closed account and failed to conduct 15 a reasonable investigation or correct inaccurate information”); id. at 8–9 (alleging in 16 support of RICO claim that BOA “used those communications” “to enforce unauthorized 17 ledger entries and withdrawals,” “collect[ing] unauthorized obligations,” and causing a 18 “loss of $729,000.00.”). Later actions taken by BOA are not the basis for those TILA, 19 FCRA, or civil RICO claims, see id. at 7–9, nor are they the same actions for the purposes 20 of the continuing violation doctrine, see Green v. Los Angeles Cnty. Superintendent of 21 Schs., 883 F.2d 1472, 1480–81 (9th Cir. 1989) (explaining continuing violation doctrine); 22 Teva Pharmaceuticals USA, Inc. v. Concept Therapeutics, Inc., No. 24-cv-03567-NW, 23 2025 WL 2637507, at *6 (N.D. Cal. 2025) (“In the Ninth Circuit, an overt act restarts the 24 statute of limitations if it . . . is ‘a new and independent act that is not merely a 25 reaffirmation of a previous act’”) (quoting Pace Indus., Inc. v. Three Phoenix Co., 813 26 F.2d 234, 237 (9th Cir. 1987); SAC at 3 (“Defendant’s conduct continued after the Marin 27 matter, including interference with securities transfers in 2024–2025 and closure of 1 additional harm.”) (emphasis added). 2 Finally, Thieriot argues that equitable tolling should apply because the relevant 3 facts were within BOA’s control. See Opp’n at 15. But Thieriot knew that BOA had 4 made “unauthorized withdrawals . . . in January 2014,” see SAC at 2, even if she did not 5 know everything about why or how BOA made those withdrawals. “[T]his is not a case 6 where the plaintiff was injured within the limitations period yet unable to determine the 7 source of [her] injury.” See Garcia v. Brockway, 526 F.3d 456, 465 n.8 (9th Cir. 2008); 8 see also Gill v. Gen. Svcs. Admin., No. 14-cv-02999-MEJ, 2014 WL 6469377, at *4 (N.D. 9 Cal. Nov. 18, 2014) (no equitable tolling where plaintiff had sufficient information to 10 know possible existence of claim) (citing Santa Maria v. Pac. Bell, 202 F.3d 1170, 1179 11 (9th Cir. 2000)). 12 The statutes of limitations therefore bar Thieriot’s claims. 13 E. Failure to State a Claim 14 Finally, BOA argues that the SAC fails to state a claim under TILA, the FCRA, and 15 Civil RICO. See Mot. at 9. This is also true. 16 1. TILA 17 The SAC alleges that BOA violated 15 U.S.C. §§ 1640, 1643, and 1666. See SAC 18 at 7–8. Section 1640 is the general civil liability statute, so Thieriot must state a claim 19 under sections 1643 and 1666. 20 Under section 1643, a cardholder is liable for the unauthorized use of a credit card 21 if, among other things, “the unauthorized use occurs before the card issuer has been 22 notified that an unauthorized use of the credit card has occurred or may occur as the result 23 of loss, theft, or otherwise.” 15 U.S.C. § 1643. The SAC does not allege that Thieriot ever 24 notified BOA of the loss or theft of a credit card. See SAC at 7–8. 25 Under section 1666, a plaintiff must plead “(1) the existence of a billing error, (2) 26 timely notification of the billing error, and (3) failure of he bank issuing the card to comply 27 with the procedural requirements.” Reger v. Bank of Am., N.A., No. 2:21-CV-00910- 1 provided from an obligor to a creditor must “(1) identify the obligor’s name and account 2 number; (2) indicate the obligor’s belief that the account statement contains a ’billing 3 error’ and the amount of such billing error; and (3) set forth the reasons for the obligor’s 4 belief that the statement contains a billing error.” Id. (citing 15 U.S.C. § 1666(a)(1)–(3)). 5 The obligor must submit the dispute notice within sixty days of receiving the erroneous 6 statement. Id. Notice must be in writing and sent to the address disclosed under section 7 1637(b)(10). Id. The SAC alleges that Thieriot “notified Defendant and disputed the 8 transactions,” SAC ¶ 51, but not what form the notice took, whether notice was within 60 9 days, or even if “the transactions” at issue were billing errors. 10 The opposition brief does not address this issue. See Opp’n. Accordingly, the 11 Court dismisses the TILA claim. 12 2. FCRA 13 The SAC alleges that BOA “furnished information derived from internal ledger 14 entries on a closed account and failed to conduct a reasonable investigation or correct 15 inaccurate information upon dispute.” SAC at 9. To state a claim for a violation of the 16 FCRA, a plaintiff must allege that: “‘(1) he found an inaccuracy in his credit report; (2) he 17 notified a credit reporting agency; (3) the credit reporting agency notified the furnisher of 18 the information about the dispute; and (4) the furnisher failed to investigate the 19 inaccuracies or otherwise failed to comply with the requirements of 15 U.S.C. § 1681s– 20 2(b)(1)(A)–(E).’” Biggs v. Experian Info. Sols., 209 F. Supp. 3d 1142 (N.D. Cal. 2016) 21 (quoting Corns v. Residential Credit Solutions, Inc., No.: 2:15–cv–1233–GMN–VCF, 22 2016 U.S. Dist. LEXIS 27864, at *4 (D. Nev. Mar. 3, 2016)). The SAC fails to allege that 23 Thieriot found an error in her credit report (as opposed to her bank account), that she 24 notified a credit reporting agency, or that a credit reporting agency notified BOA. The 25 SAC therefore fails to state a claim under the FCRA. See Smith v. Experian Info. Sols., 26 Inc., No. 16-cv-04651-BLF, 2017 WL 1489689, at *8 (N.D. Cal. Apr. 26, 2017) 27 (“Plaintiff’s conclusory allegation that Experian ‘failed to conduct a reasonable 1 In addition, the opposition brief does not address this issue. Accordingly, the Court 2 dismisses the FCRA claim. 3 3. Civil RICO 4 The SAC alleges that “Defendant’s conduct constitutes wire fraud under 18 U.S.C. 5 § 1343 and a pattern of racketeering activity under 18 U.S.C. § 1862(c). Defendant used 6 those communications to enforce unauthorized ledger entries and withdrawals” and 7 “engaged in repeated conduct using internal ledger entries and banking systems to create, 8 enforce, and collect unauthorized obligations, constituting a pattern of racketeering 9 activity.” SAC at 8–9. 10 For a civil RICO claim, a plaintiff must allege: “(1) conduct (2) of an enterprise (3) 11 through a pattern (4) of racketeering activity.” Odom v. Microsoft Corp., 486 F.3d 541, 12 547 (9th Cir. 2007) (en banc). “Rule 9(b)’s requirement that ‘[i]n all averments of fraud or 13 mistake, the circumstances constituting fraud or mistake shall be stated with particularity’ 14 applies to civil RICO fraud claims.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065–66 15 (9th Cir. 2004) (internal citation omitted). 16 The SAC’s allegations fail because they are conclusory and lack specificity. The 17 SAC does not allege what “those communications” were, who had them, or when they 18 occurred. See SAC at 9. Nor does it sufficiently allege the existence of an enterprise. In 19 conclusory fashion, it simply alleges “a pattern of conduct spanning multiple years, 20 including unauthorized ledger postings, trust withdrawals, credit reporting, and securities 21 interference” and then declares that “[t]hese allegations establish enterprise conduct, 22 pattern, and continuity.” Id. at 13. That is insufficient. Nor does the SAC allege, as it 23 must, a “common purpose of engaging in a course of conduct,” an “ongoing organization,” 24 or support for the notion that “the associates in function as a continuing unit.” See Vaughn 25 v. Wardhaugh, No. 23-CV-02879-RFL, 2025 WL 251694, at *2 (N.D. Cal. Jan. 1, 2025). 26 Moreover, “cases which allege only one scheme, perpetrated on one victim, are usually 27 insufficient to establish a pattern.” Menjivar v. Trophy Props. IV DE, LLC, No. C 06- 1 || herself as the victim of a single scheme, she has not demonstrated a pattern. 2 In addition, the opposition brief does not address this issue. Accordingly, the Court 3 || dismisses the civil RICO claim. 4 || IV. CONCLUSION 5 For the foregoing reasons, the Court GRANTS the motion. As Thieriot has 6 || received multiple opportunities to amend and it now appears that further amendment 7 || would be futile, dismissal is with prejudice. See Leadsinger, 512 F.3d at 532. 8 IT IS SO ORDERED. 9 Dated: June 19 , 2026 CHARLES R. BREYER 10 United States District Judge 11 12 E 13 «14

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