United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge
David Braun, appearing pro se, filed an amended complaint on
December 23, 2018. The matter is presently before the Court
on Defendant Bank of America's Fed.R.Civ.P. 12(b)(6)
motion to dismiss Braun's amended complaint on the
grounds of res judicata. For the reasons discussed, the Court
recommends the motion be granted.
has been a banking customer with Bank of America since the
mid 1990s. Over the years his credit card allegedly had
numerous fraudulent charges on it. In this action Braun
alleges Bank of America engaged in a long history of wrongful
conduct towards him relative to his bank and credit card
accounts, and failed to properly address the fraudulent
charges on his card.
Braun's complaints about the fraudulent charges, Bank of
America pursued a debt collection action against him in state
district court in Montana in 2015. In that action, Braun
asserted a counterclaim against Bank of America, but his
counterclaim was dismissed.
asserts Bank of America engaged in various acts of misconduct
relative to both its handling of the alleged fraudulent
credit card charges, and its litigation activity in the civil
debt collection matter. He delineates six separate claims for
relief based upon Bank of America's alleged conduct in
(1) failing to contact him prior to filing its state court
debt collection action, (2) making numerous phone calls to
him regarding the delinquent balance on his credit card, (3)
failing to provide him with records relative to his credit
card account, (4) unlawfully accessing and disseminating
information from his credit card account, (5) causing
inaccurate and derogatory information to be placed on
Braun's credit report, and (6) engaging in improper
ex-parte communications with the judge presiding over the
state court debt collection action.
result of Bank of America's conduct, Braun alleges he has
sustained personal financial damages, and damage to his
credit. Therefore, Braun alleges Bank of America is liable to
him under various legal theories. He asserts the Court
possesses jurisdiction over this action based upon diversity
of citizenship under 28 U.S.C. § 1332(a).
described herein, this is Braun's third legal challenge
to Bank of America's conduct. Therefore, Bank of America
moves to dismiss this action pursuant to the doctrine of res
Applicable Law - Motion to Dismiss
motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted “tests
the legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A
dismissal for failure to state a claim under Rule 12(b)(6) is
proper if there is a “lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police
Department, 901 F.2d 696, 699 (9th Cir.
1990). To survive a motion to dismiss, a plaintiff's
complaint must have sufficient facts “to state a
facially plausible claim to relief.” Shroyer v. New
Cingular Wireless Services, Inc., 622 F.3d 1035, 1041
(9th Cir. 2010). The court accepts all factual
allegations in the complaint as true and construes the
pleadings in the light most favorable to the plaintiff.
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
because Braun is proceeding pro se the Court must construe
his pleading liberally, and the pleading is held “to
less stringent standards than formal pleadings drafted by
lawyers[.]” Haines v. Kerner, 404 U.S. 519,
520 (1972). See also Neitzke v. Williams, 490 U.S.
319, 330 n.9 (1989). In view of the required liberal
a district court should grant leave to amend even if no
request to amend the pleading was made, unless it
determines that the pleading could not possibly be cured by
the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000) (emphasis added) (quoting Doe v. United
States, 58 F.3d 494, 497 (9th Cir. 1995)).