Opinion
1:21-cv-00119-DAD-SKO
12-27-2021
KENNETH MCDOW, et al., Plaintiffs, v. BETTY HARRIS, et al., Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT AND DENYING DEFENDANT BANA'S MOTION TO DISMISS AS HAVING BEEN RENDERED MOOT (DOC. NOS. 8, 14)
This matter is before the court on the motion to dismiss filed by defendant Bank of America Corporate Center (“BANA”) on February 26, 2021 and the pro se motion for leave to file an amended complaint filed by plaintiffs on April 2, 2021. (Doc. Nos. 8, 14.) Pursuant to General Order No. 617 addressing the public health emergency posed by the COVID-19 pandemic, the motions were taken under submission on the papers. (Doc. No. 10.) For the reasons explained below, the court will grant plaintiffs' motion for leave to file an amended complaint and deny defendant BANA's motion to dismiss as having been rendered moot.
BACKGROUND
This litigation arises from a dispute among siblings regarding the provision of care for their mother, who suffered a stroke in March 2019. Plaintiffs Kennedy McDow and his mother Lily McDow, both proceeding pro se, initiated this lawsuit against defendants Betty Harris, Elnora Holloway, and Rychele Works (Kennedy's sisters / Lily's daughters) and against defendant BANA. (Doc. No. 1.) Although not entirely clear from plaintiffs' pro se complaint, it appears plaintiffs allege that following Lily's stroke, the defendant sisters placed Lily in a rehabilitation center (instead of returning Lily to her home, where she lived with Kennedy) and thereafter took control of Lily's bank accounts and other sources of incomes and stopped paying Lily's bills (such as insurance policy payments and property taxes for her home). (Id.) In addition, plaintiffs allege that defendant Harris obtained a power of attorney and “got a doctor to write a letter stating that [Lily] was incapacitated.” (Id. at 4.) As for plaintiffs' allegations regarding defendant BANA, plaintiff alleges that defendant BANA “had a duty to protect [Lily's] account” and should have questioned the power of attorney presented by defendant Harris. (Id. at 5.)
Defendants Harris, Holloway, and Works, also all proceeding pro se, filed an answer to plaintiff's complaint on February 25, 2021. (Doc. No. 9.)
On February 26, 2021, defendant BANA filed the pending motion to dismiss, arguing that this court lacks subject matter jurisdiction as to plaintiffs' claims against it and that plaintiffs have failed to state a cognizable claim against it. (Doc. No. 8.) Therein, defendant BANA argues that although plaintiffs allege in their complaint that this court has diversity jurisdiction over this case, the amount in controversy requirement is not satisfied as to defendant BANA specifically. (Id. at 6, 9.) That is, plaintiffs allege the following amounts in their complaint: “income taken $50,304, ” “life insurance $90,000, ” and “at stake foreclosures $337,763.20” (Doc. No. 1 at 4), but plaintiffs do not clarify which of these amounts, if any, are attributed to defendant BANA. (Doc. No. 8 at 6, 9.) In addition, defendant BANA argues that plaintiffs have failed to state a cognizable claim for relief against it because a bank has no duty to supervise account activity or prevent a depositor's losses. (Doc. No. 8 at 9-10.)
In lieu of filing an opposition to the pending motion to dismiss, on April 2, 2021, plaintiffs filed a motion for leave to amend their complaint (Doc. No. 14), and on June 3, 2021, plaintiffs lodged a copy of their proposed amended complaint (Doc. No. 15).
Because plaintiffs are proceeding pro se, the court has considered plaintiffs' motion for leave to file an amended complaint even though it was filed in lieu of an opposition to the pending motion to dismiss, rather than as a stand-alone noticed motion. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982)).
Neither defendant BANA nor the defendant sisters filed any opposition or response to plaintiffs' motion for leave to file an amended complaint. Defendant BANA also did not file a reply in support of its pending motion to dismiss.
DISCUSSION
The court has reviewed plaintiffs' complaint and proposed amended complaint, recognizing that those pleadings shall be liberally construed in light of plaintiffs' pro se status and that pro se filings “must be held to less stringent standards than formal pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89 (2007); see also Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.1985) (en banc) (noting that where a litigant is pro se, courts have an obligation “to construe the pleadings liberally and to afford the [litigant] the benefit of any doubt”).
In their proposed amended complaint, plaintiffs have added allegations regarding specific conduct by defendant BANA, including that its bank manager allegedly: monitored Lily's bank account, did not investigate or report suspected embezzlement as required by bank policy, communicated directly with defendant Harris as to Lily's bank account activity, refused to allow Lily to remove defendant Harris from her account, refused to accept an updated power of attorney signed by Lily to revoke the previous power of attorney, and told defendant Harris to withdraw Lily's funds from the account because plaintiff Kennedy was pulling money out from the accounts. (See Doc. Nos. 14 at 2-3; 15 at 4, 6-7.) In addition, as to the amount in controversy, plaintiffs' proposed amended complaint attributes to defendant BANA $14,500 in compensatory damages and $800,000 in punitive damages. (Doc. No. 15 at 4.) Plaintiffs' proposed amended complaint also includes additional factual allegations regarding defendant Harris's conduct. (Id. at 4-5.)
In light of these additional allegations, plaintiffs' pro se status, and the lack of opposition or response by any of the defendants to plaintiffs' motion for leave to amend, the court finds good cause to grant plaintiffs' motion for leave to file an amended complaint. See Fed. R. Civ. P. 15(a) (leave to amend pleadings “shall be freely given when justice so requires”). Accordingly, the court will direct that plaintiffs file their amended complaint within 21 days from the date of this order. Plaintiffs are cautioned that if they fail to timely file their amended complaint, the court may dismiss this action for failure to prosecute.
Because the court will grant plaintiffs leave to file an amended complaint, defendant BANA's motion to dismiss will be denied as having been rendered moot.
CONCLUSION
For the reasons set forth above:
1. Plaintiffs' motion for leave to file an amended complaint (Doc. No. 14) is granted;
2. Plaintiffs shall file their amended complaint within twenty-one (21) days after the issuance of this order;
3. Defendants shall file their responsive pleadings to the amended complaint no later than twenty-one (21) days after service of the amended complaint;
4. Plaintiffs are cautioned that their failure to timely file an amended complaint as directed may lead to dismissal of this action due to plaintiffs' failure to prosecute; and
5. Defendant BANA's motion to dismiss (Doc. No. 8) is denied as having been rendered moot by this order granting plaintiffs leave to file an amend complaint.
IT IS SO ORDERED.