Starla Pacini v. Bank of America

Ninth Circuit

Starla Pacini v. Bank of America

583 F. App'x 777

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 24, 2014

Docket12-57038, 12-57039

StatusUnpublished

This text of 583 F. App'x 777 (Starla Pacini v. Bank of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Starla Pacini v. Bank of America, 583 F. App'x 777 (9th Cir. 2014).

Pincite

Opinion

MEMORANDUM *

Starla Pacini, Maria Sanchez, Alba Pe-nagos, and Hector Penagos (collectively, Plaintiffs) appeal from the dismissal of a nationwide putative class action alleging that Bank of America, N.A. (BOA) and Intersections Insurance Services, Inc. (IIS) enrolled. Plaintiffs and other BOA customers in the Smart-Step Accidental Death Insurance Program and deducted automatic payments from their accounts without express and informed written consent.

Although the district court dismissed the case on the basis of comity, “[w]e may affirm the district court’s judgment on any ground supported by the record.” In re Zynga Privacy Litig., 750 F.3d 1098, 1103 (9th Cir.2014) (citation omitted). We affirm the dismissal of Plaintiffs’ complaint because the complaint fails to state a plausible claim for relief by asserting the specifics of the insurance enrollment and automatic payment deductions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint also fails to plead fraud-based claims with the required particularity, thereby defeating Plaintiffs’ asserted causes of action for fraud and for RICO violations. See Reese v. Malone, 747 F.3d 557, 568 (9th Cir.2014); see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 557-58 (9th Cir.2010).

*778 Counsel for Plaintiffs in this case have now attempted, unsuccessfully, to plead the same set of facts three times in actions against BOA and IIS — twice on behalf of Jerome White, see White v. Bank of America, N.A., Case 2:12-cv06859-R-E (C.D.Cal.2012), and once in this case. Another team of lawyers likewise tried, and failed, to plead this case on behalf of Jorge Gonzalez, see Gonzalez v. Bank of America Ins. Svcs., Inc., 454 Fed.Appx. 295 (5th Cir.2011). Therefore, dismissal with prejudice was not an abuse of discretion because this record demonstrates that another opportunity to amend would be futile. See Airs Aromatics, LLC v. Opinion Victoria’s Secret Stores Brand, Mgmt., Inc., 744 F.3d 595, 600 (9th Cir.2014).

Notwithstanding our affirmance, we again caution district court judges to thoroughly review orders submitted by counsel to avoid the inclusion of rulings not contemplated by the court. See Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 373 (9th Cir.2005) (“Although adopting findings or an order drafted by the parties is not prohibited, we have criticized district courts that engaged in the regrettable practice of adopting the findings drafted by the prevailing party wholesale.”) (citation and internal quotation marks omitted).

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM *

Starla Pacini, Maria Sanchez, Alba Pe-nagos, and Hector Penagos (collectively, Plaintiffs) appeal from the dismissal of a nationwide putative class action alleging that Bank of America, N.A. (BOA) and Intersections Insurance Services, Inc. (IIS) enrolled. Plaintiffs and other BOA customers in the Smart-Step Accidental Death Insurance Program and deducted automatic payments from their accounts without express and informed written consent.

Although the district court dismissed the case on the basis of comity, “[w]e may affirm the district court’s judgment on any ground supported by the record.” In re Zynga Privacy Litig., 750 F.3d 1098, 1103 (9th Cir.2014) (citation omitted). We affirm the dismissal of Plaintiffs’ complaint because the complaint fails to state a plausible claim for relief by asserting the specifics of the insurance enrollment and automatic payment deductions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint also fails to plead fraud-based claims with the required particularity, thereby defeating Plaintiffs’ asserted causes of action for fraud and for RICO violations. See Reese v. Malone, 747 F.3d 557, 568 (9th Cir.2014); see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 557-58 (9th Cir.2010).

*778 Counsel for Plaintiffs in this case have now attempted, unsuccessfully, to plead the same set of facts three times in actions against BOA and IIS — twice on behalf of Jerome White, see White v. Bank of America, N.A., Case 2:12-cv06859-R-E (C.D.Cal.2012), and once in this case. Another team of lawyers likewise tried, and failed, to plead this case on behalf of Jorge Gonzalez, see Gonzalez v. Bank of America Ins. Svcs., Inc., 454 Fed.Appx. 295 (5th Cir.2011). Therefore, dismissal with prejudice was not an abuse of discretion because this record demonstrates that another opportunity to amend would be futile. See Airs Aromatics, LLC v. Opinion Victoria’s Secret Stores Brand, Mgmt., Inc., 744 F.3d 595, 600 (9th Cir.2014).

Notwithstanding our affirmance, we again caution district court judges to thoroughly review orders submitted by counsel to avoid the inclusion of rulings not contemplated by the court. See Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 373 (9th Cir.2005) (“Although adopting findings or an order drafted by the parties is not prohibited, we have criticized district courts that engaged in the regrettable practice of adopting the findings drafted by the prevailing party wholesale.”) (citation and internal quotation marks omitted).

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

583 F. App'x 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starla-pacini-v-bank-of-america-ca9-2014.

Opinion

Related

Cite This Page — Counsel Stack