1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID W THROWER, Case No. 24-cv-05047-DMR

8 Plaintiff,

ORDER ON SPECIAL MOTION TO

9 v. STRIKE AND MOTION TO DISMISS

10 WELLS FARGO BANK, NA, Re: Dkt. No. 26 11 Defendant.

12 Plaintiff David Thrower filed this action against Defendant Wells Fargo Bank, N.A. 13 (“Wells Fargo”). [Docket No. 1 (Compl.).] Wells Fargo now moves to strike or, in the 14 alternative, to dismiss the complaint pursuant to California’s anti-SLAPP statute, California Code 15 of Civil Procedure section 425.16; and Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). 16 [Docket No. 26.] For the following reasons, the motion to dismiss is granted. The anti-SLAPP 17 motion is denied for lack of subject matter jurisdiction. 18 I. BACKGROUND 19 Thrower makes the following allegations in the complaint, all of which are taken as true 20 for purposes of these motions.1 Thrower is a Florida resident and co-owner of the corporation 21 Cerebros Proof Inc. (“Cerebros”). Compl. ¶ 13. His significant other, Jennifer V. Lopez, is also a 22 co-owner of Cerebros. Id. at ¶ 14. Together they “jointly hold substantial shares” in Cerebros and 23 “have played active roles in the management and strategic direction of the company.” Id. at ¶ 17. 24 On April 2, 2024, Wells Fargo initiated a lawsuit in state court against Lopez to collect $12,856.67 25 in credit card debt (“the Florida Action”). Id. at ¶ 18; see also Wells Fargo Bank, N.A. v. Lopez, 26 1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 27 of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 1 50-2024-CC-004812-XXXA-MB, Circuit Court, 15th Judicial Circuit, Palm Beach County, FL.2 2 Thrower asserts that the debt collection lawsuit against Lopez was in fact “part of a broader 3 scheme threatening to influence and disrupt the operations of a joint business venture, Cerebros 4 Proof Inc. . . . as a mechanism to extort [Thrower] into paying off [Lopez’s] debts.” Compl. ¶ 1. 5 This is because Lopez is “insolvent and lacks assets,” with her “financial stakes primarily tied to 6 her shareholdings in Cerebros Proof Inc.” Id. at ¶¶ 18-19. Throughout the course of the Florida 7 Action, Wells Fargo “intimated through various legal channels that failure to resolve the purported 8 debts could lead to attempts to seize Ms. Lopez’s shares in Cerebros Proof Inc. Such actions 9 would disrupt the governance structure of the company and could potentially grant [Wells Fargo] 10 undue influence over its operations.” Id. at ¶ 23. 11 Thrower also describes the 15th Judicial Circuit of Florida as a “supplemental 12 Respondent,” and alleges that it facilitated Wells Fargo’s misuse of the judicial system “by 13 applying divisional case management orders to bypass the process to set local rules, so setting de 14 facto divisional rules that contradict statewide dismissal procedures, selectively affecting indigent 15 pro se litigants.” Id. at ¶ 28. The 15th Judicial Circuit of Florida is not a defendant in this case. 16 Thrower brings eight claims: 1) violation of the right to a fair trial and due process under 17 the Seventh and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983; 2) extortion under 18 18 U.S.C. § 1951; 3) wire fraud under 18 U.S.C. § 1343 and conspiracy under 18 U.S.C. § 371; 4) 19 mail fraud under 18 U.S.C. § 1341 and conspiracy under 18 U.S.C. § 371; 5) violation of the 20 Americans with Disabilities Act (ADA); 6) intentional infliction of emotional distress; 7) breach 21 of the covenant of good faith and fair dealing; and 8) violation of the Racketeer Influenced and 22 Corrupt Organizations Act (RICO). 23 This complaint was filed on August 12, 2024. On November 14, 2024, the state court in 24 the Florida Action granted summary judgment in favor of Wells Fargo and against Lopez and 25 entered default against Lopez. 26 27

II. LEGAL STANDARDS

1 Pleadings by a self-represented litigant must be liberally construed and “held to less 2 stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. The 3 Ninth Circuit has held that “where the petitioner is pro se,” courts have an obligation, “particularly 4 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of 5 any doubt.” Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). “This rule 6 relieves pro se litigants from the strict application of procedural rules and demands that courts not 7 hold missing or inaccurate legal terminology or muddled draftsmanship against them.” Blaisdell 8 v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013). “This duty applies equally to pro se motions.” 9 United States v. Qazi, 975 F.3d 989, 993 (9th Cir. 2020). However, “a liberal interpretation of a 10 pro se civil rights complaint may not supply essential elements of the claim that were not initially 11 pled.” Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011) (en banc) 12 (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)). 13

A. FRCP 8(a)

14 Rule 8(a) provides that a pleading must contain “a short and plain statement of the claim 15 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he short and plain 16 statement must provide the defendant with fair notice of what the plaintiff's claim is and the 17 grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quotation 18 omitted). 19

B. FRCP 12(b)(1)

20 A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1) is a 21 challenge to the court’s subject matter jurisdiction. A court will dismiss a party’s claim for lack of 22 subject matter jurisdiction “only when the claim is so insubstantial, implausible, foreclosed by 23 prior decisions of th[e Supreme] Court, or otherwise completely devoid of merit as not to involve 24 a federal controversy.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (citation 25 and quotation marks omitted). When reviewing a 12(b)(1) motion, the court sculpts its approach 26 according to whether the motion is “facial or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 27 2000). A facial challenge asserts that “the allegations contained in a complaint are insufficient on 1 their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 2 (9th Cir. 2004). A factual challenge asserts that subject-matter jurisdiction does not exist, 3 independent of what is stated in the complaint. White, 227 F.3d at 1242. In contrast with a facial 4 challenge, a factual challenge permits the court to look beyond the complaint, without 5 “presum[ing] the truthfulness of the plaintiff’s allegations.” Id. (citation omitted). Even the 6 presence of disputed material facts “will not preclude the trial court from evaluating for itself the 7 merits of jurisdictional claims.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) 8 (citations omitted). 9 C. FRCP 12(b)(6) 10 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 11 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 12 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 13 of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94, and may dismiss a 14 claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual 15 matter to state a facially plausible claim to relief,” Shroyer v. New Cingular Wireless Servs., Inc., 16 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); 17 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks omitted). A claim has 18 facial plausibility when a plaintiff “pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 20 678 (citation omitted). In other words, the facts alleged must demonstrate “more than labels and 21 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. 22 Corp. v. Twombly, 550 U.S. 554, 555 (2007). 23 D. California Anti-SLAPP Motions in Federal Court 24 Known as the “anti-SLAPP” statute,3 California Code of Civil Procedure section 425.16 25 “was enacted to allow early dismissal of meritless first amendment cases aimed at chilling 26 expression through costly, time-consuming litigation.” Jordan-Benel v. Universal City Studios, 27 1 Inc., 859 F.3d 1184, 1188 (9th Cir. 2017) (quoting Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 2 839 (9th Cir. 2001)). The statute provides that a claim against an individual “arising from any act 3 of that person in furtherance of the person’s right of petition or free speech” under the U.S. or 4 California constitutions “shall be subject to a special motion to strike, unless the court determines 5 that the plaintiff has established that there is a probability that the plaintiff will prevail on the 6 claim.” Cal. Civ. Proc. Code § 425.16(b)(1). The anti-SLAPP statute further provides that “a 7 prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s 8 fees and costs.” Cal. Civ. Code § 425.16(c). “[A] federal court can only entertain anti-SLAPP 9 special motions to strike in connection with state law claims.” Hilton v. Hallmark Cards, 599 10 F.3d 894, 900-01 (9th Cir. 2010). 11 III. DISCUSSION 12 A. Article III Standing 13 Wells Fargo moves to dismiss the complaint under Rule 12(b)(1) because it argues that 14 Thrower lacks standing. 15 The question of standing is “an essential and unchanging part of the case-or-controversy 16 requirement of Article III [of the U.S. Constitution].” Lujan v. Defenders of Wildlife, 504 U.S. 17 555, 560 (1992). Because standing is a jurisdictional issue, it is properly addressed under a Rule 18 12(b)(1) motion. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). “Where standing 19 is raised in connection with a motion to dismiss, the court is to accept as true all material 20 allegations of the complaint, and . . . construe the complaint in favor of the complaining party.” In 21 re Facebook, Inc. Internet Tracking Litigation, 956 F.3d 589, 597 (9th Cir. 2020) (quotations 22 omitted). To satisfy Article III’s standing requirements, a plaintiff must show “(1) [they have] 23 suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not 24 conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the 25 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed 26 by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 27 167, 180–81 (2000). 1 Wells Fargo’s actions against Lopez, Wells Fargo caused Thrower “emotional distress, financial 2 strain, and significant disruption to the operational stability of Cerebros Proof Inc.” Compl. ¶ 36. 3 However, the main source of Thrower’s distress is alleged to be the possibility that Lopez’s 4 default could cause Wells Fargo to attempt to seize Lopez’s shares in Cerebros, which could grant 5 Wells Fargo influence over Cerebros, which could harm Thrower’s interests as a co-owner of 6 Cerebros. Id. at ¶ 23. Injuries such as “mitigation costs and emotional distress . . . can only 7 qualify as concrete injuries in fact when they are based on a risk of harm that is either ‘certainly 8 impending’ or ‘substantial.’” I.C. v. Zynga, Inc., 600 F. Supp. 3d 1034, 1052 (N.D. Cal. 2022) 9 (citing Clapper v. Amnesty Int'l USA, 568 U.S. 398, 422 (2013)). “[N]o Article III standing exists 10 if a plaintiff’s theory of injury rests on an ‘attenuated chain of inferences necessary to find harm.’” 11 Id. (citing Clapper, 568 U.S. at 414 n.5). The court is not persuaded that Wells Fargo’s seizure of 12 Lopez’s shares is more than speculative. But even if Thrower were able to plausibly allege that it 13 is certain that Wells Fargo will seize Lopez’s shares, Thrower does not allege facts to explain why 14 the seizure of approximately $13,000 worth of shares would have enough of an impact on the 15 governing structure of Cerebros that it would harm Thrower’s legal interest in Cerebros. It does 16 not appear that Thrower’s own shares or his own ability to control the company are at risk. 17 Thrower’s interest in maintaining Lopez as co-owner of the company simply because he wants her 18 to be is not a legally cognizable interest and cannot demonstrate Article III standing.4 19 B. Merits of Claims 20 Even if Thrower could allege facts to support Article III standing, the complaint fails. 21 Wells Fargo argues that the complaint does not satisfy Rule 8 pleading requirements because it is 22 “incoherent” and “fail[s] to identify the specific conduct [] at issue and how Plaintiff has 23 purportedly been harmed.” Mot. 22. Wells Fargo also argues that the complaint must be 24

25 4 In his opposition, Thrower clarifies that he also suffered emotional distress because Lopez is his significant other and the Florida Action caused Lopez to exhibit “erratic outbursts of screaming, 26 aggressive actions, passively suicidal comments . . . and frequent discussions about estate distribution.” [Docket No. 34 (Opp’n) 6.] Facts raised for the first time in a plaintiff’s opposition 27 papers can only be considered by the court in determining whether to grant leave to amend. See 1 dismissed under Rule 12(b)(6). Specifically, Wells Fargo argues that its conduct was protected by 2 the Noerr-Pennington doctrine under federal law and the litigation privilege under California state 3 law. Wells Fargo also argues that each claim fails to state a claim upon which relief may be 4 granted. 5 1. Protected Conduct 6 “Under the Noerr–Pennington doctrine, those who petition any department of the 7 government for redress are generally immune from statutory liability for their petitioning 8 conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006). Although the doctrine was 9 developed in the antitrust context, it has since been extended, and now “stands for a generic rule of 10 statutory construction, applicable to any statutory interpretation that could implicate the rights 11 protected by the Petition Clause . . . and may also be applicable in construing the reach of common 12 law causes of action.” Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd., 711 F.3d 1136, 1139 (9th 13 Cir. 2013). “Litigants are immune from liability that arises out of their petitioning activity, i.e. the 14 filing of a lawsuit, as well as conduct ‘incidental to the prosecution of the suit,’ unless such 15 activity is a ‘sham.’” Gamble v. Kaiser Found. Health Plan, Inc., 348 F. Supp. 3d 1003, 1027 16 (N.D. Cal. 2018) (citing Theofel v. Farey-Jones, 359 F.3d 1066, 1071 (9th Cir. 2004); Kearney v. 17 Foley & Lardner, LLP, 590 F.3d 638, 644 (9th Cir. 2009)). 18 Thrower argues that the alleged conduct by Wells Fargo fell outside the scope of 19 petitioning activity because it involved “[p]ressuring Plaintiff to pay another’s debt.” Opp’n 15. 20 But as far as the court can understand Thrower’s allegations, Wells Fargo’s conduct consists only 21 of bringing litigation against Lopez to collect a debt, telling Lopez “through various legal 22 channels” that default may result in Lopez’s Cerebros shares being seized, and refusing to 23 “mitigate harm by waiving their right to post-judgment claims on [Lopez’s] shares” in Cerebros. 24 Compl. ¶ 23; Opp’n 16. This is all conduct “incidental to the prosecution of the suit.” Gamble, 25 348 F. Supp. 3d at 1027. Thrower does not allege that Wells Fargo engaged in any improper 26 conduct outside filing the lawsuit and communicating with Lopez about the legal consequences of 27 default. The fact that Thrower felt pressured by Wells Fargo’s litigation activities because of his 1 Pennington doctrine. 2 Next, Thrower attempts to argue that the sham exception applies. “Noerr–Pennington 3 immunity is not a shield for petitioning conduct that, although ‘ostensibly directed toward 4 influencing governmental action, is a mere sham to cover what is actually nothing more than an 5 attempt to interfere directly with the business relationships of a competitor.’” Sosa v. DIRECTV, 6 Inc., 437 F.3d 923, 938 (9th Cir. 2006) (citing E. R. R. Presidents Conf. v. Noerr Motor Freight, 7 Inc., 365 U.S. 127, 144 (1961)). “The Ninth Circuit applies a ‘a strict two-step analysis to assess 8 whether a single action constitutes sham petitioning. This inquiry is essentially retrospective: If 9 the suit turns out to have objective merit, the plaintiff can’t proceed to inquire into subjective 10 purposes, and the action is perforce not a sham.’” Realtek Semiconductor Corp. v. MediaTek, Inc., 11 732 F. Supp. 3d 1101, 1114 (N.D. Cal. 2024) (citing USS-POSCO Indus. v. Contra Costa Cnty. 12 Bldg. & Const. Trades Council, AFL-CIO, 31 F.3d 800, 810–11 (9th Cir. 1994)). 13 Thrower argues that the subjective intent of the Florida Action was improper. Opp’n 16- 14 17. However, Thrower does not plead that the suit against Lopez had no objective merit. For 15 example, Thrower does not plead that Lopez did not owe a debt to Wells Fargo or that Wells 16 Fargo did not have the legal right to seize her shares of Cerebros if she defaulted on the debt. In 17 addition, the Florida state court ruled for Wells Fargo and against Lopez on summary judgment 18 and entered default against Lopez. Regardless of Wells Fargo’s subjective intent, Thrower cannot 19 show that the Florida Action was a “sham.” 20 All of Thrower’s statutory claims arise solely from the Florida Action and Wells Fargo’s 21 conduct incidental to that litigation. Therefore, Thrower’s claims are barred under the Noerr– 22 Pennington doctrine. 23 Likewise, the California litigation privilege “applies to any communication (1) made in 24 judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) 25 to achieve the objects of the litigation; and (4) that have some connection or logical relation to the 26 action.” Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990), as modified (Mar. 12, 1990); see also 27 Cal. Civil Code § 47(b). For the same reasons as above, Thrower’s state law claims are also 2. Leave to Amend 1 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter 2 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After 3 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be 4 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 5 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 6 2003) (quotation omitted). However, leave to amend may be denied where the complaint “could 7 not be saved by any amendment,” i.e., “where the amendment would be futile.” Thinket Ink Info. 8 Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). 9 Thrower raises no allegations against Wells Fargo that are not incidental to the Florida 10 Action. In addition, Thrower cannot demonstrate that the Florida Action was a “sham” because 11 there is clearly objective merit to the lawsuit against Lopez—Thrower concedes that Lopez owed 12 the credit card debt to Wells Fargo and that Wells Fargo had the right to collect on the debt by 13 seizing her shares in Cerebros. Opp’n 5, 16. In his opposition, Thrower attempts to add 14 allegations that Wells Fargo acted unlawfully by “failing to address a conflict of interest that 15 exerts pressure on a 3rd party to pay Mrs. Lopez balance, refusing ADR, targeting a judgment- 16 proof debtor while ignoring more viable targets, and negligently allowing a public assistance 17 recipient to accrue a $12,000 debt.” Opp’n 11. None of this conduct states a meritorious claim 18 that Thrower has standing to bring. 19 Even liberally construing the pleading in deference to Thrower’s self-represented status, it 20 is clear that amendment would be futile. The court dismisses his complaint with prejudice and 21 without leave to amend. 22 C. Anti-SLAPP Motion 23 Wells Fargo moves to strike Thrower’s state law claims pursuant to California’s anti- 24 SLAPP statute. Mot. 13. A successful anti-SLAPP motion mandates that the movant be granted 25 attorneys’ fees and costs. Cal. Civ. Code § 425.16(c). 26 As stated above, the court lacks subject matter jurisdiction over the case because Thrower 27 did not plead Article III standing. “A court that lacks jurisdiction at the outset of a case lacks the 1 authority to award attorneys’ fees.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 2 837 (9th Cir. 2007). The court does not have jurisdiction to rule on Wells Fargo’s anti-SLAPP 3 motion. See Stahl L. Firm v. Judicate W., No. C13-1668 TEH, 2013 WL 6200245, at *7 (N.D. 4 Cal. Nov. 27, 2013); Bribiesca v. Procopio, Cory, Hargreaves, & Savitch, LLP, No. 5 316CV01225BENWVG, 2017 WL 87110, at *10 (S.D. Cal. Jan. 10, 2017), aff'd, 704 F. App'x 6 688 (9th Cir. 2017). 7 Wells Fargo’s special motion to strike is denied. 8 IV. CONCLUSION 9 For the foregoing reasons, the Court GRANTS Wells Fargo’s motion to dismiss the 10 complaint for lack of Article III standing. The dismissal is with prejudice. The Court DENIES 11 Wells Fargo’s anti–SLAPP attorneys fees’ for lack of jurisdiction. The Clerk is directed to enter 12 judgment for Wells Fargo against Thrower. 13 14 15 IT IS SO ORDERED. 16 Dated: May 9, 2025 17 ______________________________________ Donna M. Ryu 18 Chief Magistrate Judge 19 20 21 22 23 24 25 26 27