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Clark v. Wells Fargo Bank, N.A.

United States District Court, D. Oregon

July 1, 2014

ANDREW G. CLARK, Plaintiff,

Andrew G. Clark, Eugene, Oregon, Pro se plaintiff

Christian Rowley, Peter D. Urias, Seyfarth Shaw LLP, San Francisco, California.

David C. Campbell, Sharon C. Peters, Williams Kastner & Gibbs, PLLC, Portland, Oregon, Attorneys for defendants


ANN AIKEN, Chief District Judge.

Defendants Wells Fargo Bank and Wells Fargo Home Mortgage[1] (collectively "Wells Fargo") move to dismiss plaintiff Andrew Clark's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, Wells Fargo's motion is granted and this case is dismissed.


Beginning in September 2009, Clark was employed by Wells Fargo as a mortgage originator. At some point during his tenure at Wells Fargo, Clark began compiling reports regarding the bank's alleged violations of the Sarbanes-Oxley and Frank-Dodd Acts; he transmitted this information both internally and to various government agencies, including the Federal Bureau of Investigation and Central Intelligence Agency. In June 2011, Clark was terminated for repeatedly displaying unprofessional conduct. He then posted Wells Fargo's confidential and proprietary records, including private customer information, on his website.

On July 18, 2011, the Eugene Police Department contacted Clark at his home because Wells Fargo reported that he was trespassing and had sent an email referencing genocide. Police officers warned Clark to avoid Wells Fargo property in the future. On July 29, 2011, the police arrested Clark for second degree municipal trespass. Plaintiff was held in the Lane County jail for 18 hours before being released. The trespass charge was later dismissed.

In August 2011, Wells Fargo commenced a lawsuit seeking to enjoin Clark from publishing, controlling, disclosing, or retaining any of its equipment, confidential customer information, or trade secrets. Clark filed numerous motions, which, amongst other things, attacked Wells Fargo's counsel, Ogletree, Deakins, Nash, Smoak and Stewart, P. C. ("Ogletree"), and alleged that Wells Fargo was engaging in racketeering and retaliation; the Court denied each of Clark's motions. The Court, however, permitted Wells Fargo to file documents reflecting Clark's inappropriate correspondences under seal.

On October 5, 2012, after two hearings, the Court granted summary judgment in favor of Wells Fargo and entered a permanent injunction. See generally Wells Fargo Bank, N.A. v. Clark ("Clark I", 2012 WL 4794156 (D.Or. Oct. 5, 2012). At that time, the Court held Clark in contempt for failing to "comply with standards of professionalism in all his communications with Wells Fargo and its counsel." Id . at *5-7. Clark sent hundreds of emails and faxes to Ogletree, some of which were threatening and/or obscene, and all of which "had little to no bearing upon [any] legal issue between plaintiff and defendant, " despite being repeatedly instructed by the Court "to limit his communications to plaintiff's counsel's firm in Portland and to keep those to a strictly professional tone." Id . Thereafter, the Court denied several motions for reconsideration filed by Clark. See generally Wells Fargo Bank, N.A. v. Clark ("Clark II"), 2013 WL 2038561 (D.Or. May 14, 2013).

On July 18, 2013, police officers arrived at Clark's home to interview him about certain faxes and emails he had sent Ogletree and one of its attorneys, Leah Lively. Although Clark denied that the communications at issue were threatening, officers warned him if he continued to communicate inappropriately with Ogletree and Lively, he may be criminally charged with stalking. On July 23, 2013, Clark sent another fax to Ogletree and Lively in contravention of police orders. On July 25, 2013, Clark was arrested and charged with ten counts of stalking; he was jailed for six days and released with an electronic ankle bracelet after posting bail.

On August 3, 2013, Clark initiated this lawsuit against Wells Fargo, Ogletree, and Securitas Corporation ("Securitas"), as well as certain individually named employees, alleging: (1) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") (claims one through nine); (2) deprivation of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983 (claims ten and twelve); (3) defamation (claim eleven); (4) violations of the Occupational Safety and Health Act ("OSHA") (claim thirteen); (5) gross negligence (claim fourteen); and (6) a conspiracy against constitutional rights in violation of 18 U.S.C. §§ 241, 242 (claim fifteen).[2] That same day, Clark effectuated service on Ogletree and Securitas.

On September 26, 2013, Ogletree moved to dismiss Clark's complaint or, alternatively, appoint a guardian ad litem. On October 21, 2013, Securitas filed a motion to dismiss Clark's claims. On October 24, 2013, pursuant to notification by the Lane County Circuit Court, the Court stayed these proceedings pending resolution of the criminal stalking charges brought by Ogletree and Lively. On January 9, 2014, Clark entered into a plea agreement, which, in relevant part, precludes him from contacting Ogletree or its attorneys, except through counsel, for ten years.

On January 31, 2014, the Court resolved several motions filed by Clark. Notably, the Court dismissed Securitas and all of the individually named defendants pursuant to Clark's stipulations. Moreover, based on the terms of the plea agreement entered into by Clark and the Lane County District Attorney's Office, the Court also dismissed Ogletree from this lawsuit unless and until Clark retains counsel, leaving Wells Fargo as the only remaining defendant. Accordingly, the Court denied Securitas's and Ogletree's motions to dismiss is moot. On April 29, 2014, Clark effectuated service on Wells Fargo. On May 20, 2014, Wells Fargo moved to dismiss Clark's complaint.


Where the plaintiff "fails to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12(b) (6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for ...

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