Rosenbaum v. Bank of America NA

Opinion

1 WO 2 3 4 5

9 Levi Rosenbaum, No. CV-22-02072-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Bank of America NA, et al.,

13 Defendants. 14 15 Levi Rosenbaum (“Plaintiff”) appeals this Court’s judgment dismissing his case. 16 (Doc. 82). The United States Court of Appeals for the Ninth Circuit referred the matter to 17 this Court “for the limited purpose of determining whether in forma pauperis status should 18 continue for this appeal or whether the appeal is frivolous or taken in bad faith.” (Doc. 90 19 at 1). 20 I. Background 21 Since Plaintiff filed his initial complaint in 2022, this action has been riddled with 22 procedural errors and inadequate filings by Plaintiff. Nonetheless, recognizing that Plaintiff 23 proceeds pro se, the Court allowed Plaintiff to amend his complaint three times.1 (See 24 generally Doc. 64). 25 Plaintiff’s third amended complaint alleged various causes of action stemming from 26 27 1 The first time the Court allowed amendment, the Court liberally construed Plaintiff’s complaint as arguably non-frivolous. However, after multiple amendments, and Plaintiff’s 28 failure to cure, it has become clear that Plaintiff’s claims are frivolous. 1 his employment at Bank of America. (See generally Doc. 65). Plaintiff alleged seven 2 claims against Bank of America, including retaliation, discrimination based on various 3 protected classes, “unfair hiring and promotion practices,” and “employment term 4 violations.” (See generally Doc. 65). Plaintiff also alleged complaints against MetLife and 5 Sedgwick, Bank of America’s benefit claim administrators. (See generally Doc. 65). These 6 claims included “negligence and omission,” “wrongful denial of leave benefits,” and 7 “failure to consider evidence.” (See generally Doc. 65). The Court considered Plaintiff’s 8 third amended complaint on motions to dismiss. (Doc. 76, 77). 9 II. Legal Standard 10 “An appeal may not be taken in forma pauperis if the trial court certifies in writing 11 that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). For an appeal to be “taken in 12 good faith,” at least one issue or claim must be non-frivolous. Hooker v. Am. Airlines, 302 13 F.3d 1091, 1092 (9th Cir. 2002). For a claim to be “non-frivolous,” the claim must have 14 some “arguable basis in fact or law.” O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). 15 III. Analysis 16 Plaintiff’s appeal of the Court’s judgment dismissing his case does not raise any 17 non-frivolous issues or claims. Most of Plaintiff’s claims against Bank of America are 18 time-barred. For the claims not time-barred, Plaintiff either did not exhaust his 19 administrative remedies as required, did not plead facts sufficient to state a claim, or failed 20 to state a cognizable legal theory. The Court’s detailed reasoning can be found at Docket 21 82. Because Plaintiff’s claims have no arguable basis in fact or law, the claims are 22 frivolous. Moreover, none of Plaintiff’s failures can be cured because: (1) Plaintiff had 23 three chances to amend his complaint; (2) each complaint had the benefit of being 24 adversarially tested; (3) Plaintiff declined to meet and confer with Defendants (Doc. 73 at 25 3-4); and (4) Plaintiff did not allege any new facts with each amended complaint. 26 IV. Conclusion 27 IT IS ORDERED that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and 28 Federal Rules of Appellate Procedure 24(a)(3), that an appeal of the Court’s September 12, 1 || 2024 order and judgment would not be taken in good faith. (See Doc. 90). 2 IT IS FURTHER ORDERED that the Clerk of the Court shall immediately notify || the Ninth Circuit Court of Appeals and the parties of this denial. See Fed. R. Civ. P. 4|| 24(a)(4). The Clerk of the Court must indicate that this Order relates to the Ninth Circuit 5 || Court of Appeals docket number 24-6360. 6 Dated this 8th day of November, 2024. 7 8 '

10 _ James A. Teil Org Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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