Guido v. Wells Fargo Bank, N.A.

Second Circuit

Guido v. Wells Fargo Bank, N.A.

699 F. App'x 54

CourtCourt of Appeals for the Second Circuit

DecidedOctober 23, 2017

Docket17-835-cv

StatusUnpublished

Cited by6 cases

This text of 699 F. App'x 54 (Guido v. Wells Fargo Bank, N.A.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Guido v. Wells Fargo Bank, N.A., 699 F. App'x 54 (2d Cir. 2017).

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Opinion

SUMMARY ORDER

Plaintiffs-appellants Natale and Loretta Guido (the “Guidos”) appeal from a judgment granting a motion to dismiss by defendant-appellee Wells Fargo Bank, N.A, (“defendant”). The Guidos argue that the District Court erred in dismissing—pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure—the seven claims in their amended complaint: wrongful foreclosure, common-law fraud, intentional infliction of emotional distress, malicious prosecution, abuse of process, negligent infliction of emotional distress, and at-’ tempted lárceny. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo the grant of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pac. Inv. Mgmt. Co. v. Mayer Brown LLP, 603 F.3d 144, 160 (2d Cir. 2010). “To 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.’” Ashcroft v. Iqbal, 566 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Concerning the Guidos’ seventh claim, for attempted larceny under N.Y, Penal Law. § 155.05 (McKinney 2017), we observe that even if private prosecution were authorized for such an offense, the District Court lacked subject-matter jurisdiction over the claim because the diversity jurisdiction of the district courts extends only to “civil actions.” 28 U.S.C. § 1332(a) (2012). The District Court therefore properly dismissed the claim.

Concerning the other six claims, we hold on independent review of the record, that the Guidos’ arguments are without merit, substantially for the reasons set forth in the District Court’s Order and Memorandum dated March 21,2017.

CONCLUSION

We AFFIRM the March 22, 2017 judgment of the District Court.

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SUMMARY ORDER

Plaintiffs-appellants Natale and Loretta Guido (the “Guidos”) appeal from a judgment granting a motion to dismiss by defendant-appellee Wells Fargo Bank, N.A, (“defendant”). The Guidos argue that the District Court erred in dismissing—pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure—the seven claims in their amended complaint: wrongful foreclosure, common-law fraud, intentional infliction of emotional distress, malicious prosecution, abuse of process, negligent infliction of emotional distress, and at-’ tempted lárceny. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo the grant of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pac. Inv. Mgmt. Co. v. Mayer Brown LLP, 603 F.3d 144, 160 (2d Cir. 2010). “To 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.’” Ashcroft v. Iqbal, 566 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Concerning the Guidos’ seventh claim, for attempted larceny under N.Y, Penal Law. § 155.05 (McKinney 2017), we observe that even if private prosecution were authorized for such an offense, the District Court lacked subject-matter jurisdiction over the claim because the diversity jurisdiction of the district courts extends only to “civil actions.” 28 U.S.C. § 1332(a) (2012). The District Court therefore properly dismissed the claim.

Concerning the other six claims, we hold on independent review of the record, that the Guidos’ arguments are without merit, substantially for the reasons set forth in the District Court’s Order and Memorandum dated March 21,2017.

CONCLUSION

We AFFIRM the March 22, 2017 judgment of the District Court.

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699 F. App'x 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guido-v-wells-fargo-bank-na-ca2-2017.

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