Opinion
3:23-cv-00145-YY
03-14-2023
CARL A. WESCOTT, Plaintiff, v. MR. ROGER M. POLLOCK, and DOES 1 THROUGH 10, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, MAGISTRATE JUDGE
FINDINGS
Pro se plaintiff Carl A. Wescott has filed an action for breach of contract, alleging at least $936,000 in damages. Compl. ECF 1. The court previously granted plaintiff's application to proceed IFP, and directed him to file an amended complaint by March 10, 2023. Because plaintiff failed to do so, this case should be dismissed without prejudice.
The IFP statute provides that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “A pleading that states a claim for relief must contain . . . a short and plain statement of the grounds for the court's jurisdiction; . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include in the alternative or different types of relief.” FED. R. CIV. P. 8(a). “Rule 8 does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2006) (citations omitted). “A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Federal courts hold a Pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (holding a document filed Pro se “is to be liberally construed”; a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests) (citation omitted). “Although . . . Pro se litigant[s] . . . may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
Plaintiff is not the typical inexperienced Pro se litigant. It appears plaintiff has filed 20 cases in the Northern District of California, four cases in the Central District of California, and four cases in the District of Arizona. Some of these cases were dismissed pursuant to 28 U.S.C. § 1915. See, e.g., Wescott v. Beresford Corporation, 3:22-cv-00067-JSC (dismissed pursuant to 28 U.S.C. § 1915 on April 19, 2022); Wescott v. Smith, 4:19-cv-02084-JST (dismissed pursuant to 28 U.S.C. § 1915 on April 22, 2019); Wescott v. Stephens, 3:18-cv-05009-WHO (dismissed pursuant to 28 U.S.C. § 1915 on October 29, 2018). It also appears that plaintiff has filed numerous cases in California state court. In fact, he has been designated a vexatious litigant by the Judicial Council of California.
See https://www.courts.ca.gov/documents/vexlit.pdf.
In his Complaint, plaintiff alleges that his single-member LLC, Capital Ideas, entered into a signed contract with defendant Roger Pollock in which Pollock agreed to pay Capital Ideas a consulting fee if it was “successful in raising capital” for Pollock to develop property in Mexico. Compl. ¶ 45, ECF 1. According to plaintiff, the contract states that “if one of [plaintiff's] investors funds Mr. Pollock's project, Capital Ideas (Wescott's company) will be paid.” Id. It further states that “[t]he consulting fee will be paid within two business days of the successful close of capital raised.” Id.
The Complaint alleges that Capital Ideas has assigned its claims to plaintiff. Compl. ¶ 2, ECF 1.
Plaintiff claims he found a “potential investor”-Guaranty Financial of Abu Dhabi (“GFAD”)-“that was willing to move forward” with funding. Compl. ¶ 59, ECF 1. Plaintiff alleges that GFAD “offered $10.6 million dollars, with a total cost of capital of 12.5%, 2.5% in regular interest payments, and an additional 10% to be recaptured and settled via lot release plan closing.” Id. ¶ 63. However, because Pollock did not wish to pay fees to a lender, he declined the funding. Id. ¶ 65. Plaintiff alleges that similarly, he obtained a letter of intent and loan commitment from Global Capital Partners Fund of New York (“GCPF”) for “a $5 million-dollar investment, structured as U.S. $1.5 million for infrastructure and a U.S. $3.5 million revolving line of credit,” but Pollock insisted the GCPF was a “scam” and “fraud,” and also declined that funding. Id. ¶¶ 69, 71, 75.
To his Complaint, plaintiff has attached numerous documents, including a letter he wrote to Pollock in which he claims he is entitled to at least $936,000 under the contract. In the letter, plaintiff also explains that he needs the funds “to acquire a gold mine” that will eventually turn a profit of $272 million dollars. In addition to this letter, plaintiff has attached correspondence with GFAD and GCPF. Conspicuously absent from the attachments, however, is the signed contract between Capital Ideas and Pollock that is at the heart of plaintiff's claim.
Plaintiff has failed to allege facts that, even if accepted as true, state a claim to relief that is plausible on its face. Ashcroft, 556 U.S. at 678. Plaintiff alleges that, under the contract, Pollock agreed to pay Capital Ideas a consulting fee if it was “successful in raising capital” for Pollock. Compl. ¶ 45, ECF 1. Plaintiff further alleges the contract terms state that payment was contingent on “if one of [plaintiff's] investors funds Mr. Pollock's project,” and is specific that the payment will be made upon “successful close of capital raised.” Id. But, by plaintiff's own allegations, no investors funded Pollock's project and thus there was no successful close of capital raised.
Because plaintiff is a Pro se litigant, the court granted plaintiff leave to amend with notice of the deficiencies as described above. See McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (“The law is clear that before a district court may dismiss a Pro se complaint for failure to state a claim, the court must provide the Pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal.”). Also, given plaintiff's history as a vexatious litigant in state court, his prior frivolous law suits in federal court, and the fact he conspicuously failed to attach a copy of the signed contract to the Complaint (despite attaching numerous other exhibits), the court further ordered plaintiff to submit a copy of the signed written contract with any amended complaint he filed.
The IFP statute “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). “Examples of the former class are claims against which it is clear that the defendants are immune from suit, . . . and [e]xamples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Id. at 327-28. “To pierce the veil of the complaint's factual allegations means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Payne v. Contra Costa Sheriff's Dep't, No. C 02-2382CRB(PR), 2002 WL 1310748, at *1 (N.D. Cal. June 10, 2002) (citing Denton v. Hernandez, 504 U.S. 25, 32 (1992)). “A finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.” Id.
Here, because of plaintiff's history as a vexatious litigant and prior frivolous filings, it was particularly necessary to “pierce the veil of the complaint's factual allegations” to determine whether they were frivolous. But, as discussed above, even under the terms of the contract that plaintiff has alleged in the Complaint, plaintiff has failed to allege a claim for breach of contract.
RECOMMENDATIONS
Because plaintiff's Complaint fails to state a claim for relief, this case should be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, March 31, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
IT IS SO ORDERED.