Sobayo v. Ally Bank

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 NATHANIEL BASOLA SOBAYO, Case No. 20-cv-08470-SI

6 Plaintiff, ORDER DISMISSING AMENDED 7 v. COMPLAINT WITH LEAVE TO AMEND 8 ALLY BANK, et al., Re: Dkt. No. 11, 13, 15 9 Defendants.

10 11 On February 3, 2021, defendant Daybreak Metro, Inc. filed a motion to dismiss the amended 12 complaint with a hearing set for March 12, 2021. Having considered the papers submitted, the Court 13 hereby VACATES the March 12, 2021 hearing pursuant to local rule 7-1(b) and, for the reasons 14 articulated below, DISMISSES the amended complaint with leave to amend. 15 16 BACKGROUND 17 In November 2020, plaintiff filed a complaint seeking damages because defendant engaged 18 in “illegal wrongful conversion" and “illegal wrongful repossession” of plaintiff’s 2011 black 19 Cadillac Escalade. Dkt. No. 1 (Compl.) at 21. Plaintiff sought $100,000 in compensatory damages 20 and $10,000,000 in punitive damages. Id. at 5. Plaintiff concurrently filed an application to proceed 21 in forma pauperis (IFP). Dkt. No. 2 (Appl. to Proceed IFP). On January 4, 2021, this Court granted 22 plaintiff’s motion to proceed in forma pauperis but dismissed his complaint without prejudice 23 pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state any cause of action and failure to establish 24 subject matter jurisdiction. Dkt. No. 10 (Order Granting IFP and Dismissing Compl.) at 2. The 25 Court granted leave to amend the complaint to cure the defects before February 1, 2021, otherwise 26 plaintiff’s complaint would be dismissed with prejudice. Id. On January 25, 2021, plaintiff filed an 27 1 amended complaint. Dkt. No. 11 (Amended Compl.) Therein, plaintiff alleges eight “Counts and 2 Allegations”:

3 Count I – Breach of Peace in Seizing the Vehicle of Plaintiff (All Defendants) 4 Count II – Conversion (All Defendants) Count III – Violation of Credit Grantor’s Closed End Credit Provision {ALLY 5 BANK, ALLY FINANCIAL INC,} Count IV – Violation of Federal Debt Collection Practice Act “FDCPA” {All 6 Defendants} Count V – Violation of Federal Trade Commission “FTC” Act {All Defendants} 7 Count VI – Trespass to Chattels {All Defendants} 8 Count VII – Trespass {All Defendants} Count VIII – Assault And Battery {All Defendants} 9 Id. at 6. 10 On February 3, 2021, defendant Daybreak Metro, Inc. filed a motion to dismiss the amended 11 complaint pursuant to FRCP 12(b)(6) and 12(b)(1). Dkt. No. 13 (Def. Daybreak Metro’s Mot. to 12 Dismiss). Defendant argues plaintiff again failed to state a cause of action and still lacked subject 13 matter jurisdiction. Dkt. No. 13 (Def. Daybreak Metro’s Mot. to Dismiss). Defendants Ally Bank 14 and Ally Financial, Inc. join in this motion. Dkt. No. 15 (Def. Ally Bank and Ally Financial’s 15 Joinder). 16

17 LEGAL STANDARDS 18 I. Statement of Claim Upon Which Relief Can be Granted 19 To survive a Rule 12(b)(6) motion to dismiss, a complaint must provide “more than labels 20 and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual 21 allegations must be enough to raise a right to relief above the speculative level on the assumption 22 that all of the complaint's allegations are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) 23 (internal quotation marks omitted). “While legal conclusions can provide the framework of a 24 complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 25 (2009). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to 26 relief that is plausible on its face.’” Id. at 678 (quoting Twombly 550 U.S. at 570). A claim is 27 facially plausible “when the plaintiff pleads factual content that allows the court to draw a reasonable 1 inference that the defendant is liable for the misconduct alleged” that amounts to “more than the 2 sheer possibility that the defendant has acted unlawfully.” Id. Dismissal for failure to state a claim 3 “is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support 4 a cognizable legal theory.” Hartmann v. California Dept. of Corrections and Rehabilitation, 707 5 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 6 1104 (9th Cir. 2008)). 7 8 II. Subject Matter Jurisdiction 9 Generally, federal courts have jurisdiction in two circumstances: 28 U.S.C. §§ 1331 (Federal 10 Question Jurisdiction) and 1332 (Diversity Jurisdiction). 28 U.S.C. § 1331 confers jurisdiction unto 11 federal courts for civil actions arising under federal law. 28 U.S.C. § 1332 grants federal courts 12 jurisdiction over civil actions between citizens of different states, where the amount in controversy 13 exceeds $75,000. The Supreme Court has interpreted “the diversity of citizenship statute [to require] 14 ‘complete diversity’: where co-citizens appeared on both sides of a dispute, jurisdiction was lost.” 15 State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530–31 (1967) (citing to Strawbridge v. 16 Curtiss, 7 U.S. 267 (1806)). Regarding diversity jurisdiction, a corporation is a citizen “where it 17 was organized, and in another state . . . if its principal place of business [is] there.” Bank of 18 California Nat. Ass'n v. Twin Harbors Lumber Co., 465 F.2d 489, 492 (9th Cir. 1972). “The party 19 asserting federal jurisdiction has the burden of establishing it.” United States v. Orr Water Ditch 20 Co., 600 F.3d 1152, 1157 (9th Cir. 2010) (quoting Miguel v. Country Funding Corp., 309 F.3d 1161, 21 1164 (9th Cir. 2002)). 22 DISCUSSION 23 Plaintiff’s amended complaint fails to plead with any specificity what precisely happened or 24 any facts underpinning the causes of action. The amended complaint also fails to establish this 25 Court’s subject matter jurisdiction. 26 27 I. Failure to State a Claim 1 the Court to grant defendants’ 12(b)(6) motion to dismiss. 2 3 A. Failure to State a Claim in Counts I, IV and V 4 The amended complaint fails to state a facially plausible claim for “Breach of Peace,” FDCP 5 Act and FTC Act violations. Plaintiff fails to allege any particular instance where defendants 6 breached the peace or violated the FCPA or FTC Acts. Instead, plaintiff relies on broad conclusory 7 statements, such as “All defendants as a group have engaged in using obscene, profane, or abusive 8 language, in their contacts with plaintiff, yet using of any, and or, all such languages [sic] is 9 considered a form of harassment and is against the law,” and “Defendants have willfully breached 10 the peace of this Plaintiff hitherto, hence they have violated the law.” Dkt. No. 11 (Amended 11 Compl.) at 8, 20. 12 Plaintiff alleges “all defendants” engaged in various behavior, including using profane 13 language, calling at inconvenient times and calling plaintiff while at work; but this general behavior 14 untethered to specific facts is insufficient to state a claim upon which relief can be granted. Dkt. 15 No. 11 (Amended Compl.) at 8-9. Plaintiff’s amended complaint fails to detail who contacted him, 16 what specifically was said, when the statements were made, etc. All alleged transgressions are stated 17 as conclusions and lack any factual support. Id. 18 Regarding the FTC Act, plaintiff simply quotes blocks of statutory language and moves onto 19 the next section of his amended complaint without tying defendants’ actions to a statutory violation. 20 See Id. at 24-25. Without facts pled to support these conclusory allegations, the Court is unable to 21 “draw a reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 22 U.S. at 678. The Court therefore dismisses plaintiff’s claims for breach of peace and violating the 23 FDCP and FTC Acts for failure to state a claim upon which relief may be granted, pursuant to FRCP 24 12(b)(6). 25 26 B. Failure to State a Claim in Counts II, III, VI, VII and VIII 27 Similarly, plaintiff fails to plead his claims alleging defendants engaged in Conversion, 1 Chattels, Trespass, Assault or Battery, all of which should be brought under state law. Plaintiff 2 fails to plead facts in support of his conclusory allegations. For example, in support of his battery 3 claim, plaintiff alleges: 4 As for the violations of Battery, for this Plaintiff, it the experiences and sufferings as direct results of their diabolically insidious acts , which involves constant intentional 5 and unwanted remote physical contacts, directly and indirectly, implicitly and explicitly, by these defendants and their agents, although to defendants and their 6 agents, who are causing and inflicting these diabolical evils, they may be insidiously pretending that, their intents are not to actually cause harm(s), havocs and sufferings. 7 Plaintiff’s claims of "assault and battery" combines and refers to both threats to plaintiff’s bodily harm(s), havocs and sufferings, incessantly and hitherto, directly 8 and indirectly by the same defendants and their agents. 9 Dkt. No. 11 (Amended Compl.) at 29. These allegations, emblematic of the amended complaint, 10 fail to specify what actually happened to plaintiff: what were defendants specific acts? How was 11 plaintiff harmed, let alone battered? 12 Plaintiff lays out the elements of various claims but fails to allege facts tying defendants’ 13 actions to the elements. Id. at 17, 25. “[A] formulaic recitation of a cause of action's elements will 14 not” suffice to state a claim upon which relief may be granted. Twombly, 550 U.S. at 545. Since 15 plaintiff’s claims are no “more than labels and conclusions” containing no factual support, they fail 16 to raise “a right to relief above the speculative level.” Id. 17 The Court grants defendants’ motion to dismiss and dismisses the entire amended complaint 18 pursuant to FRCP 12(b)(6). 19 20 II. The Amended Complaint Fails to Cure Defects Regarding Subject Matter 21 Jurisdiction 22 The amended complaint also fails to cure defects regarding subject matter jurisdiction. 23 While plaintiff summarily alleges defendant violated the FDCP Act and FTC Act, he fails to 24 articulate a cognizable legal theory under either federal act. He fails to state any section number 25 under the FDCP Act to form the basis of his claim. Furthermore, as discussed above, plaintiff fails 26 to plead facts in support thereof. 27 Additionally, enforcement and initial remedial action under the FTC Act belongs only to the 1 O'Donnell v. Bank of Am., Nat. Ass'n, 504 F. App'x 566, 568 (9th Cir. 2013); see also Carlson vy. 2 Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973) (“The protection against unfair trade practices 3 afforded by the Act vests initial remedial power solely in the Federal Trade Commission”); see also 4 Gardner v. Nationstar Mortg. LLC, 2015 WL 1405539, at *8 (E.D. Cal. Mar. 26, 2015) (“[T]here 5 is no private right of action under the FTC Act.”); Fisher v. Coca-Cola Bottling Co. of Los Angeles, 6 1979 WL 1597, *2 (C.D. Cal. Mar. 12, 1979) ( “There is no private right of action under the Federal 7 Trade Commission Act. Initial remedial power lies with the Commission itself.” (citing to Carlson, 8 483 F.2d at 280). Thus, plaintiff fails to demonstrate federal question jurisdiction under 28 U.S.C. 9 || § 1331. 10 The amended complaint fails to establish diversity jurisdiction under 28 U.S.C. § 1332, since 11 plaintiff and at least one of the defendants are California residents. See Dkt. No. 11 (Amended 12 || Compl.) at 15-16 and 38 (showing plaintiff resides in Sunnyvale, California and defendant 5 13 Primeritus Financial Services resides in El Dorado Hills, California). 14 Since the party invoking federal court jurisdiction has the burden of establishing jurisdiction, 3 15 || this Court also grants defendant Daybreak Metro’s motion to dismiss for lack of subject matter a 16 || jurisdiction pursuant to FRCP 12(b)(1). CONCLUSION 18 For these reasons stated above, the Court hereby DISMISSES the amended complaint with 19 leave to amend. Plaintiff may file a Second amended complaint addressing the issues of (1) failure 20 || to plead the causes of action with requisite specificity — laying out the who, what, when, where, of 21 what plaintiff alleges happened for each claim — and (2) jurisdiction, on or before April 30, 2021. 22 || Ifa second amended complaint is not filed by that date, or if these defects are not cured, the action 23 will be dismissed WITH prejudice. 24 IT IS SO ORDERED. 25 || Dated: March 15, 2021 Site WU tee 26 7 SUSAN ILLSTON United States District Judge 28