McClellon v. Bank of America, NA, No. 2:2018cv00829 - Document 10 (W.D. Wash. 2018)
Court Description: ORDER denying Plaintiff's 4 Motion to Remand and granting Plaintiff's 6 Motion to Dismiss for Failure to State a Claim. Plaintiff's complaint is DISMISSED without prejudice and with leave to amend Signed by U.S. District Judge John C Coughenour. (TH)
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McClellon v. Bank of America, NA Doc. 10 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DONTE MCCLELLON, 10 Plaintiff, 11 CASE NO. C18-0829-JCC ORDER v. 12 BANK OF AMERICA, 13 Defendant. 14 This matter comes before the Court on Plaintiff’s motion to remand (Dkt. No. 4) and 15 16 Defendant’s motion to dismiss (Dkt. No. 6). Having thoroughly considered the parties’ briefing 17 and the relevant record, the Court finds oral argument unnecessary and hereby DENIES 18 Plaintiff’s motion to remand (Dkt. No. 4) and GRANTS Defendant’s motion to dismiss (Dkt. No. 19 6) for the reasons explained herein. 20 I. BACKGROUND 21 Plaintiff Donte McClellon (“McClellon”) alleges that Defendant Bank of America 22 (“BOA”) is liable for a series of fraudulent transactions from Plaintiff’s checking account in 23 2017. (Dkt. No. 1-1.) In his three-page complaint, McClellon makes the following allegations 24 against BOA: 25 26 This is an action under the Uniform Commercial Code (4.22.005 to 925) and Washington Consumer Protection At, RCW 19.86.020, based upon Defendant’s blatant self-dealing and other intentional negligent misconduct in conversion, ORDER C18-0829-JCC PAGE - 1 Dockets.Justia.com freezing, pooling, otherwise manipulating Plaintiff’s funds without Plaintiff’s authorization. 1 2 Plaintiff further allege that the Defendant breached the contract, failed to comply with Regulation E and committed the tort of negligence in the handling of Plaintiff’s funds. The Plaintiff seeks compensatory damages and all other damages (i.e., direct and consequential damages) allowed by law, and payment of costs and attorneys’ fees. 3 4 5 Plaintiff opened an checking account with Defendant . . . Plaintiff timely filed his good faith Regulation E claims with Defendant but the Defendant failed to protect the checking account in subject, provisional credit the Plaintiff and have those funds be accessible to him. 6 7 The fraudulent transactions at issue that took place in the checking account in subject are $123,553.15 on April 3rd, 2017 and $54,000.00 on April 18th, 2017 . . . Regulation E states that a provisional credit must be provided within 10 business days. 1 8 9 10 11 (Id. at 1–2.) McClellon originally filed his complaint in King County Superior Court. (Id. at 1.) 12 On June 7, 2018, BOA removed the case, citing 28 U.S.C. section 1332 as the basis for this 13 Court’s jurisdiction. 2 (Dkt. No. 1-3.) On June 12, 2018, McClellon filed a motion to remand the 14 case to state court (Dkt. No. 4). Two days later, BOA filed a motion to dismiss the complaint for 15 failure to state a claim upon which relief can be granted (Dkt. No. 6). The Court addresses these 16 motions in turn. 17 II. DISCUSSION 18 A. 19 A party to a civil action brought in state court may remove that action to federal court if Legal Standard for Remand 20 the district court would have had original jurisdiction at the time of both commencement of the 21 action and removal. See 28 U.S.C. § 1441(a); 14B Charles Alan Wright & Arthur R. Miller, 22 Federal Practice and Procedure § 3723 (4th ed. 2013). Once removed, the case can be remanded 23 to state court for either lack of subject-matter jurisdiction or defects in the removal procedure. 24 25 1 The allegations were taken verbatim from McClellon’s complaint. (See Dkt. No. 1-1.) The case was initially assigned to Hon. Robert S. Lasnik, but was reassigned to this 26 Court on June 26, 2018. (Dkt. No. 8.) 2 ORDER C18-0829-JCC PAGE - 2 1 See 28 U.S.C. § 1447(c). The removing party bears the burden of establishing federal 2 jurisdiction. Emrich v. Touche Ross & Co, 846 F.2d 1190, 1195 (9th Cir. 1988). There is a 3 “strong presumption” against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). 4 The Court resolves all ambiguity in favor of remand to state court. Hunter v. Philip Morris USA, 5 582 F.3d 1039, 1042 (9th Cir. 2009). 6 B. McClellon’s Motion to Remand 7 McClellon asserts that BOA improperly removed this case because there is not complete 8 diversity of citizenship and the amount in controversy requirement is not met. (Dkt. No. 4 at 1– 9 3.) McClellon, a resident of Washington, asserts that BOA is also a resident of Washington 10 because “it regularly conducts business in the state.” (Id. at 1.) Additionally, McClellon states 11 that the $75,000 amount in controversy requirement is not met because his complaint “does not 12 specify the total amount of damages that [he] seeks.” (Id. at 3.) Both arguments are unavailing. 13 For the purposes of diversity jurisdiction, national banking associations are citizens of the 14 state in which their main office is located. See 28 U.S.C. § 1348; Rouse v. Wachovia Mortg., 15 FSB, 747 F.3d 707, 715 (9th Cir. 2014) (“[U]nder § 1348, a national banking association is a 16 citizen only of the state in which its main office is located.”) BOA is a national bank with its 17 main office, as set forth in its articles of incorporation, in North Carolina. (Dkt. No. 1 at 3.) Thus, 18 there is complete diversity between the parties because McClellon is a citizen of Washington and 19 BOA if a citizen of North Carolina. See 28 U.S.C. § 1332; Morris v. Princess Cruises, Inc., 236 20 F.3d 1061, 1067 (9th Cir. 2001). 21 “Where it is not facially evident from the complaint that more than $75,000 is in 22 controversy, the removing party must prove, by a preponderance of the evidence, that the amount 23 in controversy meets the jurisdictional threshold.” Matheson v. Progressive Specialty Ins. Co., 24 319 F.3d 1089, 1090 (9th Cir. 2003). In determining the amount in controversy, district courts 25 may consider “facts presented in the removal petition as well as any ‘summary-judgement-type 26 evidence relevant to the amount in controversy at the time of removal.’” Id. (quoting Singer v. ORDER C18-0829-JCC PAGE - 3 1 State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir.1997)). 2 Although McClellon’s complaint does not state the total damages sought, it does state 3 that the alleged fraudulent transactions at issue were for $177,553.15. (Dkt. No. 1-1 at 3.) 4 McClellon asks the Court to “[o]rder Defendant to make Plaintiff whole by returning Plaintiff’s 5 funds with prejudgment interest, in amounts to be determined at trial.” (Id. at 4.) BOA also 6 points out that, after removal, McClellon moved for a default judgment in King County Superior 7 Court in the amount of $3,326,516.50. (Dkt. Nos. 9, 9-3 at 5.) The Court finds that BOA has 8 demonstrated by a preponderance of the evidence that the amount in controversy is greater than 9 $75,000. 10 The Court has subject matter jurisdiction over this controversy pursuant to 28 U.S.C. 11 section 1332. Therefore, McClellon’s motion to remand is DENIED. 12 C. 13 A defendant may move for dismissal when a plaintiff “fails to state a claim upon which Legal Standard for Motion to Dismiss 14 relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must 15 contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its 16 face. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). A claim has facial plausibility when the 17 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 18 defendant is liable for the misconduct alleged. Id. at 678. Although the Court must accept as true 19 a complaint’s well-pleaded facts, conclusory allegations of law and unwarranted inferences will 20 not defeat an otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. Cty., 487 F.3d 1246, 1249 21 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A 22 plaintiff is obligated to provide grounds for her entitlement to relief that amount to more than 23 labels and conclusions or a formulaic recitation of the elements of a cause of action. Bell Atl. 24 Corp. v. Twombly, 550 U.S. 544, 545 (2007). “[T]he pleading standard Rule 8 announces does 25 not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant26 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. ORDER C18-0829-JCC PAGE - 4 1 D. BOA’s Motion to Dismiss 2 BOA asks the Court to dismiss McClellon’s complaint because it relies on conclusory 3 allegations and does not provide sufficient facts to demonstrate BOA is liable for any 4 wrongdoing. 3 (Dkt. No. 6 at 2.) In his complaint, McClellon states that he had a checking 5 account at BOA and that two fraudulent transfers were made from the account in April 2017. 6 (Dkt. No. 1-1 at 2–3.) McClellon further alleges that BOA “failed to protect his account” after he 7 “timely filed his good faith Regulation E claims.” (Id. at 3.) McClellon also states that BOA 8 engaged in “blatant self-dealing and other intentional negligent misconduct in conversion, 9 freezing, pooling, otherwise manipulating Plaintiff’s funds without Plaintiff’s authorization.” 10 (Id.) 11 McClellon has not pled sufficient facts to demonstrate his claims against BOA are 12 plausible. McClellon’s claims are conclusory, in that they lack specific facts to show BOA was 13 responsible for, or involved with, the alleged fraudulent transactions. For example, McClellon 14 does not state how BOA “failed to protect” his checking account, or how it engaged in “blatant 15 self-dealing.” Such conclusions, represent “an unadorned, the-defendant-unlawfully-harmed-me 16 accusation.” Iqbal, 556 U.S. at 678. Moreover, McClellon’s vague reference to “Regulation E 17 claims 4” does not provide the Court, or BOA, with sufficient information to determine how BOA 18 is liable for the claims alleged. 19 Even construing McClellon’s complaint liberally, the Court concludes that it fails to state 20 a claim upon which relief can be granted. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 21 (district courts are to construe pro se complaints liberally). Therefore, McClellon’s complaint is 22 23 3 McClellon did not respond to BOA’s motion to dismiss, which the Court may consider as an admission that the motion has merit. See W.D. Wash. Local Civ. R. 7(b)(2). 4 24 The implementing regulations of the Electronic Fund Transfer Act, 15 U.S.C. § 1693, et 25 seq., are known as “Regulation E” and broadly deal with the “basic rights, liabilities, and responsibilities of consumers who use electronic fund transfer and remittance transfer services 26 and of financial institutions or other persons that offer these services.” 12 C.F.R. § 1005.1. It is not clear from the complaint what provision of Regulation E Plaintiff is raising. ORDER C18-0829-JCC PAGE - 5 1 DISMISSED without prejudice and with leave to amend. If McClellon chooses to file an 2 amended complaint, he must do so within 21 days of this order being issued. In his amended 3 complaint, McClellon must allege facts that demonstrate BOA is liable to him for the fraudulent 4 transfers he alleges occurred in his checking account in April 2017. 5 III. CONCLUSION 6 For the foregoing reasons, Plaintiff’s motion to remand (Dkt. No. 4) is DENIED. 7 Defendant’s motion to DISMISS (Dkt. No. 6) is GRANTED. Plaintiff’s complaint is 8 DISMISSED without prejudice and with leave to amend in accordance with the Court’s order. 9 The Clerk is DIRECTED to send a copy of this order to Plaintiff. 10 DATED this 17th day of July 2018. 11 A 12 13 14 John C. Coughenour UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 ORDER C18-0829-JCC PAGE - 6
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