United States District Court, D. Oregon
Rene Butler Plaintiff pro se
FINDINGS AND RECOMMENDATION AND ORDER
Jelderks U.S. Magistrate Judge
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.
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.
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.
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).
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.
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
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.
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.
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 ...