United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATION
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
Plaintiff David Braun brings this action against Defendant
Bank of America, N.A. alleging a long history of wrongful
conduct. Bank of America has moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the Complaint for failure
to state a claim upon which relief can be granted. Because
Braun's Complaint is barred by res judicata and otherwise
fails to state a claim for relief, Bank of America's
motion should be granted.
opening section of his Complaint, Braun alleges he has been a
Bank of America credit card customer for several years and
his account has been “plagued with large amounts of
fraud, ” including unauthorized charges and two
unspecified “fraud events” that caused him to be
hospitalized under “questionable circumstances.”
(Doc. 1, at 2). Braun claims that Bank of America called him
“uncontrollably” for several months and
eventually brought a lawsuit against him in state court to
collect on his unpaid credit card debt. Braun explains that
he asserted a counterclaim against Bank of America, which was
later dismissed by the court. Braun alleges Bank of
America's collection action ended in “a working
Judgment in District Court, ” and he has yet to be
compensated “for the Damage to [his] health and
life.” (Doc. 1, at 3).
these initial allegations, the Complaint contains a section
of “Facts” describing events and conduct that
Braun alleges took place both before and during the
collection action in state court. In support of these
allegations, Braun attaches as exhibits several filings,
orders, and other materials from the state court case. In the
next section of his Complaint, Braun provides a list of
“Accusations” in which he claims that his
counterclaim in the debt collection case was improperly
dismissed and accuses Bank of America of failing to respond
to discovery during that litigation.
statement of requested relief, Braun demands 3, 000, 000
share of Bank of America Corporation common stock in order
“[t]o insure future quality off [sic] life, provide to
security medical care, housing and livening [sic] expenses,
and compensate for the harm done up to this point.”
(Doc. 1, at 8).
final section of the Complaint is titled “Background on
Plaintiffs [sic] previous Military Service and Executed
Contractual Agreements.” Braun claims the issues raised
in his Complaint have “been around me and what's
left off [sic] my family for many years” and states
that he has made several prior complaints with various
government agencies, including the FBI, NSA, and CIA. The
rest of Braun's allegations are largely incomprehensible,
and he ends his Complaint by asking defense counsel to
produce “an actual contract or record off [sic] the
events that you believe make it impossible for this court to
render a Judgment for the Plaintiff.” (Doc. 1, at 8-9).
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001). The Court's
standard of review under Rule 12(b)(6) is informed by the
provision of Fed.R.Civ.P. 8(a)(2) which requires that a
pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)
(quoting Rule 8).
survive a Rule 12(b)(6) motion, the complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678-79 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint will survive a motion to dismiss if it
alleges facts that allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
But if the complaint “lacks a cognizable legal theory
or sufficient facts to support a cognizable legal theory,
” then dismissal under Rule 12(b)(6) is appropriate.
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d
1097, 1104 (9th Cir. 2008).
as here, the plaintiff is appearing pro se, the court
liberally construes the allegations in the complaint. See
e.g. Karim-Panahi v. Los Angeles Police Dept., 839
F.2d 621, 623 (9th Cir. 1988); Ortez v.
Washington County Oregon, 88 F.3d 804, 807
(9th Cir. 1996). But even where the plaintiff is
proceeding pro se, the complaint should be dismissed if it
appears “beyond a doubt that the plaintiff can prove no
set of facts in support of his claim.” See Pena v.
Gardner, 976 F.2d 469, 471 (9th Cir. 1997).
general rule, the court may not consider any materials
outside the pleadings on a Rule 12(b)(6) motion. Lee v.
City Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001). The court may, however, consider documents attached to
the complaint, matters that are subject to judicial notice,
and documents necessarily relied on by the complaint and
whose authenticity no party questions. See Swartz
v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.
2007); Lee, 250 F.3d at 688-89 (9th Cir.
2001). Thus, review of Bank of America's motion is
informed by the state court orders, filings, and other
materials attached to Braun's complaint.