United States District Court, D. Connecticut
RULING ON MOTION FOR LEAVE TO AMEND OR CORRECT
A. BOLDEN, UNITED STATES DISTRICT JUDGE
White (“Plaintiff”), proceeding pro se, sued
Wells Fargo, N.A. (“Wells Fargo” or
“Defendant”) for false advertising under the
Lanham Act, promissory fraud, and misrepresentation in the
United States District Court for the Southern District of New
York. Complaint, ECF No. 2 (“Compl.”).
October 21, 2018, Judge Stanton transferred to the United
States District Court for the District of Connecticut.
Transfer Order, ECF No. 3.
reviewing the motion for leave to proceed in forma
pauperis, Magistrate Judge William Garfinkel recommends
dismissing the case for lack of standing under 28 U.SC.
§ 1915(e)(2)(B) because the Lanham Act requires that a
plaintiff be a competitor of the defendant that is alleging a
competitive injury. Recommended Ruling, ECF No. 12, at 2.
response, Ms. White moved for leave to amend her Complaint.
Motion for Leave to File Amended Complaint, ECF No. 15.
following reasons, the Court ADOPTS
Magistrate Judge Garfinkel's recommended ruling and
DENIES leave to amend the Complaint.
FACTUAL AND PROCEDURAL BACKGROUND
White claims that World Savings Bank, a company that later
merged with Wells Fargo, solicited her “to refinance
her loan on her condominium from a prior loan with Astoria
Federal Mortgage Corporation.” Compl. at ¶ 1. In
doing so, Ms. White alleges that World Savings Bank
“did not disclose to her that its intention was not to
pay off the prior loan and instead file[d] a loan release
from Nationwide Title Clearing Inc.” and then
“pocketing the money earmarked for paying off
Astoria.” Id. at ¶ 2.
White also alleges that Nationwide Title Clearing “is
under investigation for issuing false loan releases.”
Id. at ¶ 3.
White then alleges that “she will be able to prove by
discovery that federal agencies are involved as parties to
her loan.” Id. at ¶ 6.
White also contends that she was “cheated out of her
modification promised through her settlements in regard to
[World Savings Bank] that Defendant was part of, including by
falsely filing affidavits in Connecticut Superior
Court.” Id.at ¶ 7.
White's core allegations are that Wells Fargo
“colluded in an arrangement harmful to the Plaintiff by
concealing that it was involved in a ‘bait and
switch', false advertising, intending to keep the money
earmarked for paying off her prior loan instead of paying off
her prior loan. Instead it had a false loan release issued by
Nationwide and filed it with the local Town Clerk.”
Id. at ¶ 14.
September 25, 2018, Ms. White filed her Complaint against
Wells Fargo. Compl. The same day, she filed a request to
proceed in forma pauperis. Request to Proceed In
Forma Pauperis, ECF No. 1.
October 24, 2018, the case was referred to Magistrate Judge
William Garfinkel to deal with the motion to proceed in
forma pauperis. Order Referring Case, ECF No. 10.
December 5, 2018, Magistrate Judge Garfinkel granted Ms.
White's motion for leave to proceed in forma
pauperis but recommended that the Complaint be dismissed
under 28 U.S.C. § 1915(e)(2)(B). Order Granting Motion
for Leave to Proceed In Forma Pauperis, ECF No. 11;
Recommended Ruling, ECF No. 12.
February 1, 2019, Ms. White filed a motion to amend or
correct her Complaint. Motion for Leave to File an Amended
Complaint, ECF No. 15.
STANDARD OF REVIEW
Section 1915 Dismissal
28 U.S.C. § 1915(e)(2)(B), a court “shall dismiss
a case at any time if it determines that” the complaint
or amended complaint “is frivolous or malicious . . .
fails to state a claim upon which relief may be granted; or
seeks monetary relief from a defendant who is immune from
such relief.” Dismissal of a complaint or amended
complaint on those grounds is required “regardless of
whether the prisoner has paid the filing fee” or is
proceeding in forma pauperis. See Carr v. Dvorin,
171 F.3d 115, 116 (2d Cir. 1999) (per curiam).
of the Federal Rules of Civil Procedure requires that a
complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Although detailed allegations are not
required, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.' A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint that includes only “‘labels
and conclusions,' . . . ‘a formulaic recitation of
the elements of a cause of action, '” or
“‘naked assertion[s]' devoid of
‘further factual enhancement'” does not meet
the facial plausibility standard. Id. (quoting
Twombly, 550 U.S. at 555, 557). “Even after
Twombly” and Iqbal, courts
“remain obligated to construe a pro se
complaint liberally, ” but the complaint must include
sufficient factual allegations to meet the standard of facial
plausibility. See Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (citations omitted).
Leave to Amend
of the Federal Rules of Civil Procedure provides that parties
may either amend once as a matter of course or, once the
period has elapsed, move for leave to file an amended
complaint. Fed.R.Civ.P. 15(a). Parties who fail to file an
amended complaint within 15(a)(1)'s time period, or who
seek additional amendments, may seek the consent of their
opposing party or the court's leave to amend.
Fed.R.Civ.P. 15(a)(2). The “court should freely give
leave when justice so requires.” Id.
decision to grant leave to amend under Fed.R.Civ.P. 15 is
within the discretion of the court, but the court must give
some “justifying reason” for denying leave.
Foman v. Davis, 371 U.S. 178, 182 (1962). Reasons
for denying leave to amend include “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment.”
Id.; see also Lucente v. IBM, 310 F.3d 243,
258 (2d Cir. 2002) (noting leave to amend may be denied when
amendment is “unlikely to be productive, ” such
as when an amendment is “futile” and “could
not withstand a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6).” (Internal citations omitted)); Park B.
Smith, Inc. v. CHF Indus. Inc., 811 F.Supp.2d 766, 779
(S.D.N.Y. 2011) (“While mere delay, absent a showing of
bad faith or ...