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Butler v. Neuberger Berman Management LLC

United States District Court, D. Oregon

April 12, 2017

JANELL RENE BUTLER Plaintiff,
v.
NEUBERGER & BERMAN MANAGEMENT, LLC, Defendant.

          Janell Rene Butler Plaintiff pro se

          FINDINGS AND RECOMMENDATION AND ORDER

          John Jelderks U.S. Magistrate Judge

         Pro se Plaintiff Janell Butler brings this action against Defendant Neuberger & Berman Management, LLC. Plaintiff's Complaint comprises a court-provided Complaint form, an attached hand-written letter purportedly stating Plaintiff's claims, and three attached pages that appear to be tax and account statements. Plaintiff has applied to proceed in forma pauperis.

         Plaintiff's application to proceed in forma pauperis is granted. However, for the reasons set forth below, Plaintiff's Complaint should be dismissed, without service of process.

         Discussion

         Under 28 USC § 1915(e)(2)(B), a complaint filed in forma pauperis must be dismissed before service of process if it is frivolous, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief.

         In order to state a viable claim, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also, Ashcroft v. Iqbal, 556 U.S. 662 (2009)(specifically applying Twombly analysis beyond the context of the Sherman Act). This means the complaint must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (internal quotation and citation omitted). The complaint must contain “well-pleaded facts” which “permit the court to infer more than the mere possibility of misconduct.” Id. The court must liberally construe a pro se plaintiff's complaint and permit amendment unless the deficiencies in the complaint cannot be cured by amendment. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623-624 (9th Cir. 1988).

         Plaintiff previously filed a Complaint in this court against Defendant Newberger & Berman and other defendants containing almost identical allegations . See Butler v. Marx, et al., 3:16-cv-02402-MO. The Honorable Judge Michael Mosman dismissed Plaintiff's Complaint but granted her leave to amend. (3:16-cv-02402-MO; Dkt. #5). On March 1, 2017, Plaintiff submitted an Amended Complaint. On March 6, 2017, Judge Mosman dismissed the case without prejudice because the Amended Complaint failed to state a claim upon which relief may be granted. (3:16-cv-02402-MO; Dkt. #11, 12). Plaintiff filed the instant case on March 28, 2017.

         Plaintiff states that she is filing this current action as a class action because “there is (sic) probably many more victims as they are a huge investment company.” Compl. at 6. Plaintiff's Complaint also alleges that this court has jurisdiction based on diversity of citizenship. Regardless of how liberally Plaintiff's Complaint is construed, it fails to state a claim upon which relief can be granted. The Complaint fails to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests”).

         Plaintiff describes what appears to be a disagreement with Defendant regarding several investment accounts. Plaintiff references several pieces of “evidence, ” including letters from Defendant and a claim she has filed with the “SCC.” However, other than the three account statements noted above, there are no other documents attached to the Complaint or appearing in the court file. After a careful review of the Complaint, I am unable to discern from Plaintiff's narrative any facts sufficient to state a cause of action that is plausible on its face or any clear or coherent claim upon which relief could be granted. Furthermore, Plaintiff fails to request any specific relief and instead states that she must “leave it in the court's hands to make a fair judgment . . . .” For the reasons stated above, Plaintiff's Complaint should be dismissed. Although it appears doubtful that the defects in Plaintiff's Complaint can be cured by amendment, dismissal should be without prejudice.

         Conclusion

         Plaintiff's application to proceed in forma pauperis (# 1) is GRANTED. The Complaint should be DISMISSED without service of process. Plaintiff should be given leave to file, within thirty days of the date of the Order, an amended complaint if she feels that the deficiencies noted above can be cured.

         Scheduling Order

         This Findings and Recommendation will be referred to a district judge. Objections, if any, are due April 26, 2017. If no objections are filed, then the Findings and ...


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