United States District Court, D. Oregon
SUSAN A. FIGG, Plaintiff,
BRUCE LEE SCHAFER, Director of claims, Oregon State Bar's Professional Liability Fund; WELLS FARGO BANK, NORTHWEST, NATIONAL ASSOCIATION, INC.; JEFFREY S. FRASIER; BRIAN CHENOWETH; GLEN SHEARER; JOSEPH D. MCDONALD; SAM FRIEDENBERG; and LLOYD R. SUMMERS, Defendants.
A. Figg Pro Se Plaintiff
Nusich Hans N. Huggler Attorneys for Defendant Wells Fargo
Bank, National Association
M. Schroer Hart Wagner LLP Attorney for Attorney Defendants
OPINION & ORDER
A. HERNANDEZ United States District Judge
the Court are Defendants' motions to dismiss
Plaintiff's Amended Complaint pursuant to Rules 12 and 41
of the Federal Rules of Civil Procedure. ECF 25, 26.
Plaintiff has not responded to either motion. The Court
previously granted Defendants' motions to dismiss
Plaintiff's original Complaint. See Op. &
Order, Jan. 23, 2017, ECF 18. In that Order, the Court
dismissed some of Plaintiff's claims with prejudice and
granted Plaintiff leave to amend her remaining claims. The
Court ordered that Plaintiff's Amended Complaint Comport
with Rules 8 and 12 of the Federal Rules of Civil Procedure
and be filed within ten days of the entry of that Order.
Id. Because Plaintiff's Amended Complaint does
not comport with this Court's Order, fails to cure the
defects identified in her original Complaint, and is untimely
filed, the Court Dismisses this case with prejudice.
facts giving rise to Plaintiff's claims can be found in
this Court's previous order. Id. at 3-4.
Plaintiff's Amended Complaint is three pages long and
does not re-allege the substance of her claims dismissed in
the original Complaint. Am. Compl., ECF 20. The document only
discusses irrelevant details about bank accounts with Wells
Fargo. Id. In support of the Amended Complaint,
Plaintiff submitted her declaration with a seventy-nine page
attachment described as an “index” of
Defendants' activities presented in chronological order.
See Figg Decl., Ex. 1, ECF 21.
survive a motion to dismiss, a complaint “must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face[, ]” meaning
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). Additionally, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Id. at 679. A complaint must contain
“well-pleaded facts” which “permit the
court to infer more than the mere possibility of
misconduct.” Id. at 679. In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept all material facts alleged in the complaint
as true and construe them in the light most favorable to the
non-moving party. Wilson v. Hewlett-Packard Co., 668
F.3d 1136, 1140 (9th Cir. 2012). “Factual allegations
must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in
fact)[.]” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations and footnote omitted). However,
the court need not accept unsupported conclusory allegations
as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121
(9th Cir. 1992). A motion to dismiss under Rule 12(b)(6) will
be granted if a plaintiff alleges the “grounds”
of her “entitlement to relief” with nothing
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555.
Ninth Circuit has instructed, however, courts must
“continue to construe pro se filings liberally.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
A pro se complaint “must be held to less stringent
standards than formal pleadings drafted by lawyers.”
Id. (quoting Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam)). A pro se litigant will be given
leave to amend his or her complaint unless it is clear that
the deficiencies of the complaint cannot be cured by
amendment. Lopez v. Smith, 203 F.3d 1122, 1130-31
(9th Cir. 2000).
Defendants move to dismiss the Amended Complaint pursuant to
Rule 41(b) for failure to comply with the Court's orders.
“In determining whether to dismiss a case for failure
to comply with a court order the district court must weigh
five factors including: ‘(1) the public's interest
in expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic alternatives.'” Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), as
amended (May 22, 1992) (quoting Thompson v. Hous. Auth.
of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986)).
Amended Complaint fails to meet the requirements of Rules 8
and 12 of the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8, 12. Rule 8 requires a short and plain
statement of the claims and a demand for relief from the
court. Fed.R.Civ.P. 8(a)(2)-(3). The Amended Complaint does
not contain any claims or a demand for relief. Rule 8 also
requires that the allegations be concise and direct.
Fed.R.Civ.P. 8(d). The Court construes Plaintiff's
declaration as the source for the factual allegations
supporting her Amended Complaint, and concludes that a
seventy-nine page “index” of Defendants'
alleged activities is neither concise nor direct.
Additionally, Rule 12 permits dismissal of a complaint that
fails to state a claim. Fed.R.Civ.P. 12(b)(6). Because the
Amended Complaint does not contain any claims for relief,
dismissal is dully warranted under Rule 12. Accordingly, the
Amended Complaint is dismissed in its entirety pursuant to
Rules 8 and 12.
remaining question is whether the Court should dismiss
Plaintiff's claims with prejudice pursuant to Rule 41,
which would terminate her case with this Court and prevent
her from filing a second amended complaint. Defendants'
motions to dismiss were filed on February 12 and 13 of this
year. To date, Plaintiff has not responded to either motion,
requested an extension of time to file her response, or
otherwise indicated that she intends to oppose the motions.
The Court concludes that the five traditional factors
considered under Rule 41(b) weigh in favor of dismissing
Plaintiff's case with prejudice. Dismissing the case with
prejudice at this juncture would serve the public's
interest in expeditious resolution of this litigation.
Removing this case from the Court's docket would conserve
judicial resources. The seven named individual Attorney
Defendants would be prejudiced with undue litigation related
burdens if the Court permitted this case to continue.
Plaintiff's claims are meritless and disposing of this
case under Rule 41 is not contrary to the fourth factor's
public policy considerations. ...