Pittman v. Wells Fargo N.A. ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RANDY D. PITTMAN, Case No. 23-cv-03699-JSW Plaintiff, 8 ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND 10 WELLS FARGO N.A., et al., Defendants. 11 12 INTRODUCTION 13 Plaintiff, a federal prisoner incarcerated in North Carolina, filed a complaint against a bank 14 and a credit card company: Wells Fargo Bank and Visa, Inc. He is granted leave to proceed in 15 forma pauperis in a separate order. For the reasons discussed below, the complaint is 16 DISMISSED with leave to amend. 17 ANALYSIS 18 A. STANDARD OF REVIEW 19 Where, as here, a civil action is commenced by a plaintiff proceeding pro se: 20 “the court shall dismiss the case at any time if the court determines that the action or appeal is 21 frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary 22 relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 26 claim showing that the pleader is entitled to relief." Although in order to state a claim a complaint 27 “does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of 1 the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a 2 right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964- 3 65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief 4 that is plausible on its face." Id. at 1974. 5 B. LEGAL CLAIMS 6 Plaintiff alleges Defendants failed to reimburse him for approximately sixteen thousand 7 dollars in charges he contends are fraudulent. He claims this breached his contract with 8 Defendants. Plaintiff does not attach or allege what contract(s) he had with Defendants, whether 9 such contracts were written or oral, or the terms of such contracts that Defendants’ actions may 10 have breached. As a result, he has not sufficiently alleged a plausible claim that they breached a 11 contract. Plaintiff is cautioned that if the contract limits damages for any breach to amount below 12 $75,000, there may not be a sufficient amount in controversy to provide jurisdiction over his claim 13 under 28 U.S.C. § 1983. Plaintiff has not alleged a basis for punitive damages, either. He must do 14 so in order to proceed with such claims. 15 Plaintiff may attempt to cure these deficiencies in an amended complaint, assuming he can 16 do so in good faith. 17 CONCLUSION 18 1. The complaint is DISMISSED with leave to amend. 19 2. Plaintiff shall file an amended complaint within twenty-eight (28) days from the 20 date this order is filed. The amended complaint must include the caption and civil case number 21 used in this order (No. C 23-3699 JSW (PR)) and the words “COURT-ORDERED FIRST 22 AMENDED COMPLAINT” on the first page. Because an amended complaint completely 23 replaces the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), 24 Plaintiff may not incorporate material from the original by reference; he must include in his 25 amended complaint all the claims he wishes to pursue. Failure to amend within the designated time and in accordance with this order will result in the dismissal of this case. 26 3. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 27 1 Change of Address.” He also must comply with the Court's orders in a timely fashion, although he 2 || may request an extension of time provided it is accompanied by a showing of good cause and it is 3 filed on or before the deadline he wants to extend. Failure to do so may result in the dismissal of 4 || this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 5 || ITIS SO ORDERED. 6 || Dated: January 29, 2024 a) 7 fo} Ch ite i □ AEFFRARY S. WHITE 9 Dnitjd Statee/District Judge 10 11 12 13 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28