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Braun v. Bank of America, N.A.

United States District Court, D. Montana, Butte Division

March 4, 2019

DAVID STEVEN BRAUN, Plaintiff,
v.
BANK OF AMERICA, Defendant.

          FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch United States Magistrate Judge

         Plaintiff 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.

         I. Introduction

         Braun 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.

         Despite 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.

         Braun 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.

         As a 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).

         As 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 judicata.

         II. Applicable Law - Motion to Dismiss

         A 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 Cir. 2005).

         Additionally, 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 construction,

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)).

         III. ...


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