Opinion
Case No: 2:03-CV-235 PGC
November 7, 2003
ORDER GRANTING MOTION TO DISMISS
This case was filed against a lender by an occupant of land foreclosed by the lender. The occupant was debtor to the lender before the foreclosure. Plaintiff in this federal case also attempted to remove a state unlawful detainer case, filing the notice of removal in this case file.
Verified Complaint, filed March 7, 2003, docket no. 1. See Notice of Removal of State Case to Federal Court, filed March 14, 2003, docket no. 2, and Complaint in Unlawful Detainer inThe First National Bank of Chicago v. Kelvin W. Fitzgerald, Fourth District Court, Utah County, Utah, Civil No. 030500032, attached thereto, with Trustee's Deed as Exhibit A.
The lender, defendant Bank One, the successor by merger to First National Bank of Chicago, moves this court to dismiss the verified complaint. Plaintiff does not oppose the motion. This order grants the motion to dismiss, and summarily remands the state case to the Fourth Judicial District Court for the State of Utah.
Defendant's Motion to Dismiss Verified Complaint and Memorandum in Opposition to both Plaintiffs Motion for Default Judgment and Notice of Removal and in Support of Motion to Dismiss Verified Complaint, filed May 2, 2003, docket entries 9 and 10 respectively.
Under DUCivR 7-1(d), "[f]ailure to respond timely to a motion may result in the court's granting the motion without further notice."
As a preliminary matter, the court notes that it has twice ordered Plaintiff to properly serve Defendant. As of the date of this order, Plaintiff has continued to ignore this court's orders and failed to effect proper service upon Defendant. Nevertheless, without having been properly served, counsel for Defendant Bank One entered a Notice of Appearance of Counsel, and moves this court to dismiss grounds other than failure to serve process. Defendant's memorandum also deals with the notice of removal.
Order Denying Default Judgment, filed April 11, 2003, docket entry 5-1; Order Denying Second Motion for Default Judgment, filed May 2, 2003, docket entry 8-1.
See id. at 1 (stating Plaintiff "ignores this courts [sic] order of April 11, 2003, finding that service on Mr. John Lish was not proper service in this case").
Notice of Appearance of Counsel, filed April 28, 2003, docket entry 6-1.
Notice of Removal
Bank One asserts that Plaintiffs Notice of Removal in this case is untimely, and it should therefore be denied and the case remanded to the state court. Removal of a state court action to federal court is governed by 28 U.S.C. § 1446, which states that the notice of removal must be filed within thirty days after the defendant has received a copy of the initial pleading in the state court action. In this case, the record reflects that the complaint filed in state court was served on Plaintiff on February 1, 2003. Plaintiff did not file the notice of removal in this case until March 14, 2003, well beyond thirty days after he was served with the complaint. Further, Plaintiffs prior attempt to remove the state case to federal court was unsuccessful. Consequently, the state court action will be remanded to the Fourth Judicial District Court, State of Utah.
"The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b).
Case No. 030500032, Filed in Fourth District Court, Utah County, State of Utah. Proof of Service of the Complaint attached to state court record submitted with notice of removal, filed March 14, 2003, docket entry 2-1.
Notice of Removal, filed March 14, 2003, docket entry 2-1.
Order, docket no 4, filed March 3, 2003, in First National Bank of Chicago et. al v. Kelvin Fitzgerald, Case No. 2:03 CV 180 DAK.
Motion to Dismiss
Bank One also requests the court to dismiss the verified complaint because it fails "to state a claim upon which relief can be granted" Although a pro se litigant's pleadings are construed liberally, the court may dismiss the complaint for failure to state a claim if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
In liberally construing Plaintiffs verified complaint, it appears he alleges that Bank One violated his due process rights under the Fifth and Fourteenth Amendments, and his civil rights under 42 U.S.C. § 1983. Plaintiff also alleges "fraud" numerous times and claims that "the money from the loan made to Plaintiffs [sic] . . . was created solely on the books of [lender]" and that this constitutes a fraud and means "there was no consideration [as] required under commercial law."
Verified Complaint, paragraphs 1 and 2, page 6.
Fraud and Consideration
Plaintiff never pleads the elements of fraud under Utah law with the particularity required, nor does he plead facts which would make out a fraud claim. The assertion that the loan was "created solely on the books" of the lender is not enough to make out a fraud claim. Further, there is no requirement that consideration for a loan be in cash form, and the recitals of the Verified Complaint and Trustee's Deed showing that there was a note and lending transaction show consideration for the lending transaction.Civil Rights Claims
The Fifth Amendment states that no person shall "be deprived of life, liberty, or property, without due process of law" It is well settled that the Fifth Amendment protects individuals against actions by the government or governmental actors. In this case, Bank One is not a governmental actor, and the Fifth Amendment "provides no protection against private actions by private individuals."
U.S. Const, amend, V.
See U.S. v. Salerno. 481 U.S. 739, 746 (1987): see also Smith v. Kitchen. 156 F.3d 1025, 1028 (10th Cir. 1997).
See U.S. v. Garlock, 19 F.3d 441, 443 (8th Cir. 1994) (stating that a bank is not an instrumentality of the government, even though it is heavily regulated by the government).
Smith, 156 F.3d at 1028.
The Fourteenth Amendment states that no State shall "deprive any person of life, liberty, or property, without due process of law." This amendment protects against "only such action as may fairly be said to be that of the States" "[C]ourts have uniformly held that conduct by banks is not state action." Therefore, the Fourteenth Amendment affords no protection against Bank One's foreclosure in this case because it is not "state action."
U.S. Const, amend. XIV, § 1.
Shelly v. Kraemer, 334 U.S. 1,13 (1948).
Rannels v. Meridain Bancorp. Inc., 718 F. Supp. 10, 13 (E.D. Pa. 1989) (citing several federal courts).
See, Barrera v. Security Bide. Inv. Corp., 519 F.2d 1166, 1169 (5th Cir. 1975) (stating that bank's pursuit of non-judicial foreclosures does not constitute state action).
A civil rights claim under 42 U.S.C. § 1983 "requires, consistent with the Fourteenth Amendment, official state action." Having already concluded that Bank One is not a state actor for purposes of Fourteenth Amendment protection, any claim Plaintiff asserts under section 1983 fails.
Draeger v. Grand Central. Inc., 504 F.2d 142, 146 (10th Cir. 1974).
The court has reviewed the sufficiency of the complaint, presuming all factual allegations to be true and has construed the facts in the light most favorable to the plaintiff, and finds that the verified complaint fails to allege any facts to support Bank One acted under the color of state law or that it was a governmental or state actor. Accordingly, the motion to dismiss is GRANTED because Plaintiff has failed "to state a claim upon which relief can be granted."
Hall v. Bellmon, 935 F.2d 1106, 1009-10 (10th Cir. 1991) (citing Scheuer v. Rhodes 416 U.S. 232, 236 (1974)).
ORDER
IT IS HEREBY ORDERED that the Notice of Removal is untimely, and the state court action is REMANDED to the Fourth Judicial District Court, State of Utah.IT IS FURTHER ORDERED that Defendant's Motion to Dismiss is GRANTED. The clerk is directed to close the case.
Docket entry 9-1.
DATED this