Yussuf v. Wells Fargo Bank, N.A.

• Court: District Court, District of Columbia
• Decided: November 19, 2018
• Docket: Civil Action No. 2018-2118
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) ASHANTE YUSSUF, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-2118 (BAH) ) WELLS FARGO BANK, N.A., ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION The plaintiff, Ashante Yussuf, who is proceeding pro se, filed, on August 3, 2018, in the

Superior Court of the District of Columbia (“Superior Court”) her complaint, which the

defendant Wells Fargo Bank, N.A., timely removed to this Court on September12, 2018.

Pending before the Court is defendant’s motion to dismiss, ECF No. 7, on grounds that the

complaint fails to state a plausible claim for relief and for lack of jurisdiction, under Federal

Rules of Civil Procedure 8(a), 9(b), and 12(b)(1) and (6). Shortly after the dismissal motion was

filed, the Court issued an Order, ECF No. 8, on September 25, 2018, advising the pro se plaintiff

of her obligations under the Federal Rules of Civil Procedure and the Local Civil Rules of this

Court to file an opposition to defendant’s motion, and of the consequences of her failure to

oppose it. Specifically, the Order advised plaintiff that, if she failed to file her opposition by

October 25, 2018 – a longer period than that normally allowed under the applicable rules – the

Court would rule on defendant’s motion without the benefit of her position. Id. To date,

plaintiff neither has filed an opposition nor requested more time to do so. For the reasons

discussed below, defendant’s motion is granted.

1 I. BACKGROUND

Plaintiff secured a mortgage loan from Wells Fargo Bank, N.A. for her former residence

at 323 58th Street, N.E., Washington, DC 20019 (“the property”). See Compl. at 4, ECF No. 4-

1. The property was the subject of foreclosure proceedings in the Superior Court, see generally

Def.’s Mem. in Support of Mot. to Dismiss Compl. (“Def.’s Mem.”), ECF No. 7-2, which

defendant initiated on November 11, 2015, id., Ex. 1 at 1. By order, dated April 11, 2018, the

Superior Court ratified the sale of the property by the Trustees. Id., Ex. 2. The matter concluded

on August 3, 2018, with orders granting defendant’s Motion to Ratify Accounting, Release

Bond, and Close Case and denying plaintiff’s Emergency Motion to Vacate Default Judgment.

Id., Ex. 1 at 5.

In vague and conclusory language, plaintiff alleges “wrongful foreclosure because of

predatory lending, wrongful denial of foreclosure, fraudulent hazardous insurance,

discrimination against African-Americans, unethical business practices, and fraudulent business

practices.” Compl. at 1. In addition, plaintiff alleges she is “part of several class action suits

against Wells Fargo,” which have settled. Id. She demands judgment in her favor in the sum of

$500,000. Id.

II. LEGAL STANDARDS

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject-matter jurisdiction, the plaintiff bears the burden of demonstrating the court’s subject-

matter jurisdiction over her claim by a preponderance of the evidence. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992); Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).

‘“Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by

Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v.

2 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden .

. . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir.

2008), and, therefore, have “an affirmative obligation ‘to consider whether the constitutional and

statutory authority exist for us to hear each dispute,’” James Madison Ltd. by Hecht v. Ludwig,

82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,

196 (D.C. Cir. 1992)). Absent subject-matter jurisdiction, the court must dismiss the case. See

Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006); FED. R. CIV. P. 12(h)(3).

To withstand a motion to dismiss under Rule 12(b)(6), “the ‘complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”

Wood v. Moss, 572 U.S. 744, 757-58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). A claim is facially plausible when the plaintiff pleads factual content that is more than

‘“merely consistent with’ a defendant's liability,” but “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)).

In considering a motion to dismiss for lack of subject matter jurisdiction or for failure to

plead a claim on which relief can be granted, the complaint must be considered in its entirety,

accepting all factual allegations in the complaint as true, even if doubtful in fact, and construe all

reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555 (considering 12(b)(6)

challenge); Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (considering

12(b)(1) challenge). Nevertheless, the Court “need not accept inferences drawn by plaintiff[] if

such inferences are unsupported by the facts set out in the complaint[ or] legal conclusions cast

in the form of factual allegations.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). While matters “outside the

3 pleadings” generally may not considered on a Rule 12(b)(6) motion, without converting the

motion to one for summary judgment, FED. R. CIV. P. 12(d), the Court may, without triggering

the conversion rule, consider “documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 322 (2007) (citation omitted).1 In evaluating subject-matter jurisdiction, however,

the court may look beyond the complaint to “undisputed facts evidenced in the record, or the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”

Herbert, 974 F.2d at 197 (citations omitted).

III. DISCUSSION

Based upon a comparison of the Superior Court proceedings and the instant complaint,

this plaintiff’s pending allegations and claims against the defendant involve the same cause of

action between the same parties and has been brought to final judgment by a court of competent

jurisdiction. Defendant argues, and the Court concurs, that “Wells Fargo’s right . . . to foreclose

on the [p]roperty and the validity of the foreclosure sale have already been determined to

finality” in the Superior Court. Def.’s Mem. at 6. Where, as here, a subsequent lawsuit is filed

“(1) involving the same claims or cause of action, (2) between the same parties or their privies,

and (3) there has been a final, valid judgment on the merits, (4) by a court of competent

jurisdiction,” that lawsuit is barred under the res judicata doctrine. Smalls v. United States, 471

F.3d 186, 192 (D.C. Cir. 2006) (citations omitted); see also Taylor v. Sturgell, 553 U.S. 880, 892

(2008) ( “The preclusive effect of a judgment is defined by claim preclusion and issue

1 Judicial notice of the Superior Court proceedings is appropriately taken here, see Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005), as well as the documents filed therein, see Atchison v. U.S. District Courts, 190 F. Supp. 3d 78, 84 (D.D.C. 2016) (citing Lewis v. DEA, 777 F. Supp. 2d 151, 159 (D.D.C. 2011)). 4 preclusion, which are collectively referred to as ‘res judicata.’”); New Hampshire v. Maine, 532

U.S. 742, 748 (2001) (“Claim preclusion generally refers to the effect of a prior judgment in

foreclosing successive litigation of the very same claim, whether or not relitigation of the claim

raises the same issues as the earlier suit.”). Two claims need not be “literally identical claims for

res judicata to apply[.]” Capitol Hill Grp. v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F.

Supp. 2d 143, 149 (D.D.C. 2008), aff’d sub nom. Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw,

Pittman, LLC, 569 F.3d 485 (D.C. Cir. 2009). “Whether two cases implicate the same cause of

action turns on whether they share the same ‘nucleus of facts.’” Drake v. FAA, 291 F.3d 59, 66

(D.C. Cir. 2002) (quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)). Set

against this legal standard, the plaintiff’s claims are thus barred and, therefore, dismissal of the

complaint is warranted under Rule 12(b)(6). See Stanton v. District of Columbia Court of

Appeals, 127 F.3d 72, 76-77 (D.C. Cir. 1997) (collecting cases allowing parties to assert res

judicata on 12(b)(6) motion).

Even if the doctrine of res judicata presented no bar, plaintiff’s claims are subject to

dismissal on alternate grounds. District courts lack jurisdiction to review decisions of state or

local courts, and the plaintiff’s claims here are “so ‘inextricably intertwined’ with a state court

decision that ‘the district court is in essence being called upon to review the state court

decision.’” Stanton, 127 F.3d at 75 (quoting District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 482 n.16 (1983)); see also Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)

(under Rooker-Feldman doctrine, “a party losing in state court is barred from seeking what in

substance would be appellate review of the state judgment in a United States district court, based

on the losing party’s claim that the state court’s judgment itself violates the loser’s federal

rights”); Richardson v. District of Columbia Court of Appeals, 83 F.3d 1513, 1514 (D.C. Cir.

5 1996) (“[F]ederal district courts lack jurisdiction to review judicial decisions by state and District

of Columbia courts.”). The law is well-settled that the Rooker-Feldman doctrine precludes this

court “from exercising appellate jurisdiction over final state-court judgments,” Lance v. Dennis,

546 U.S. 459, 463 (2006), requiring dismissal of the complaint under Federal Rule of Civil

Procedure 12(b)(1).

Moreover, insofar as plaintiff alleges wrongful foreclosure, the complaint fails to “allege

sufficient facts to state a plausible claim that [she] sustain[ed] damages by reason of a

foreclosure executed in a manner contrary to law.” Tefera v. OneWest Bank, FSB, 19 F. Supp.

3d 215, 222 (D.D.C. 2014) (internal quotation marks and citations omitted), appeal dismissed,

No. 14-7039 (D.C. Cir. Sept. 16, 2015). Her bare assertions that defendant’s conduct was

wrongful, unlawful or fraudulent does not allege adequately that defendant violated some

provision of District of Columbia law in the course of the foreclosure proceedings in the

Superior Court. See, e.g., Robinson v. Deutsche Bank Nat’l Trust Co., 932 F. Supp. 2d 95, 103-

04 (D.D.C. 2013) (discussing wrongful foreclosure claim arising from alleged violations of D.C.

Code § 42-815). Nor does a bare assertion of fraud “state with particularity the circumstances

constituting fraud or mistake.” FED. R. CIV. P. 9(b). Absent allegations as to “the time, place

and content of the false misrepresentations, the fact misrepresented and what was retained or

given up as a consequence of the fraud,” and the identity of the individuals involved, United

States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004)

(citations omitted), any fraud claim must be dismissed.

Plaintiff alleges she is “a part of several class action suits against Wells Fargo,” Compl.

at 1, identified as the Pick-a Pay, Forced-Place Insurance, Flood Insurance, and TCPA class

action settlements, Def.’s Mem. at 3. The complaint does not appear to assert a claim with

6 respect to these settlements, however, or indicate whether or what remedy plaintiff is seeking

from or as result of those settlements. Similarly, the lack of factual allegations, coupled with

unsupported assertions of “unethical business practices” and “predatory lending,” Compl. at 1,

dooms these claims. Likewise, the absence of factual allegations as to when or how defendant

exhibited bias, or the harm plaintiff may have suffered because of defendant’s bias, see id., the

complaint fails to state a claim that defendant discriminated against African-Americans.

IV. CONCLUSION

The Court concludes that plaintiff’s complaint fails to state a claim upon which relief can

be granted and fails to set out a claim over which jurisdiction may be exercised. Accordingly,

defendant’s motion to dismiss is granted. An Order consistent with this Memorandum Opinion

is issued contemporaneously.

DATE: November 19, 2018 /s/ Beryl A. Howell BERYL A. HOWELL Chief Judge