United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTIONS TO DISMISS DKT. ##
14, 25, & 27
B. LEIGHTON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants Kitsap Bank, Sound
Credit Union, and U.S. Bank's Motions to Dismiss. Dkt. ##
14, 25, 27. This case concerns allegations of identity theft,
discrimination, fraud, and deceptive practices related to
unauthorized withdrawals from Plaintiff Svetlana
Sukhinina's accounts; however, the only causes of action
specifically mentioned in the Complaint fall under 28 U.S.C.
§ 1983 and Bivens. Dkt. # 3. Defendants argue
that the Complaint should be dismissed with prejudice
pursuant to 12(b)(6) for failure to state a claim and Rule
12(b)(1) for lack of subject matter
jurisdiction. Sukhinina, who is pro se, did not file a
responsive brief but did file a letter to the Court claiming
that Russian criminals are attacking her with radiation and
requesting help. Dkt. # 31.
under Rule 12(b)(6) may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990). A plaintiff's complaint must allege facts to state
a claim for relief that is plausible on its face. See
Aschcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim
has “facial plausibility” when the party seeking
relief “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Although the
Court must accept as true the Complaint's well-pled
facts, conclusory allegations of law and unwarranted
inferences will not defeat a Rule 12(c) motion. Vazquez
v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001). “[A] plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 129 S.Ct. at 1949 (citing Twombly).
A pro se Plaintiff's complaint is to be construed
liberally, but like any other complaint it must nevertheless
contain factual assertions sufficient to support a facially
plausible claim for relief. Id.
12(b)(6) motion, “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.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990); see also Zixiang Li v.
Kerry, 710 F.3d 995, 999 (9th Cir. 2013)
(“[D]ismissal without leave to amend is proper if it is
clear that the complaint could not be saved by
complaint must be dismissed under Fed.R.Civ.P. 12(b)(1) if,
considering the factual allegations in the light most
favorable to the plaintiff, the action: (1) does not arise
under the Constitution, laws, or treaties of the United
States, or does not fall within one of the other enumerated
categories of Article III, Section 2, of the Constitution;
(2) is not a case or controversy within the meaning of the
Constitution; or (3) is not one described by any
jurisdictional statute.” United Transp. Union v.
Burlington N. Santa Fe R. Co., No. C06-5441 RBL, 2007 WL
26761, at *2 (W.D. Wash. Jan. 2, 2007), aff'd,
528 F.3d 674 (9th Cir. 2008). The plaintiff bears the burden
of proving the existence of subject matter jurisdiction.
Stock West, Inc. v. Confederated Tribes, 873 F.2d
1221, 1225 (9th Cir.1989).
dismissal is warranted under both Rules 12(b)(6) and
12(b)(1). Sukhinina's Complaint is presented as a
standard-form civil rights complaint, but to be liable under
42 U.S.C. § 1983 or Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971) a defendant must have acted under color of state or
federal law. Anderson v. Warner, 451 F.3d 1063, 1068
(9th Cir. 2006); Chow v. Delambert, 972 F.2d 1338
(9th Cir. 1992). Nothing in the Complaint suggests that any
of the Defendants acted in such a capacity.
Complaint also contains vague, confusing allegations of
discrimination based on language/national origin, deceptive
practices, fraud, and identity theft. There are no citations
to statues or cases. Sukhinina's only concrete
allegations are as follows: Kitsap Bank allowed unauthorized
access to her safety deposit box, resulting in the theft of
her passport and a document; Kitsap Bank somehow caused money
to be stolen from her account and sent her a faulty debit
card; Sound Credit Union somehow contributed to a third
person stealing her identity and money; U.S. Bank
“refused to return the money” stolen from her
account. Dkt. # 6 at 6-8. Even if the Court knew the legal
basis for Sukhinina's claims, these allegations are far
too conclusory to plausibly state a claim under Rule
12(b)(6). The allegations against Sound Credit Union and U.S.
Bank make no sense at all. The allegations against Kitsap
Bank might conceivable fall under some consumer protection
statute, but that is pure conjecture at this point.
Rule 12(b)(1), Sukhinina identifies “federal
question” as the basis for subject matter jurisdiction.
However, as previously explained, Sukhinina has failed to
state a claim under § 1983 or Bivens. Presently
there is no federal question and no jurisdiction, making
conclusion, the claims against Defendants Sound Credit Union
and U.S. Bank are DISMISSED under Rules 12(b)(1) and 12(b)(6)
WITHOUT LEAVE TO AMEND. The claims against Kitsap Bank are
dismissed WITH LEAVE TO AMEND because Sukhinina's
allegations could conceivably support some type of claim that
could create subject matter jurisdiction. Within 21 days of
this Order, Sukhinina must file an amended complaint
identifying specific causes of action against Kitsap Bank,
alleging concrete facts that plausibly support a claim under
the elements of those causes of action, and stating the basis
for subject matter jurisdiction. Failure to do so will result
in dismissal of this entire action without further notice.
 Defendant Sound Credit Union also
argues that dismissal is proper under Rules 12(b)(4) for
insufficient process and 12(b)(5) for insufficient service of
process, but ...