1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MCDOW, et al., No. 1:21-cv-00119-NODJ-SKO 12 Plaintiffs, 13 v. ORDER GRANTING DEFENDANT BANK’S

MOTION TO DISMISS WITH LEAVE TO

14 HARRIS, et al., AMEND

15 Defendants. (Doc. No. 25) 16 17 18 This matter is before the Court on the Motion to Dismiss filed by Defendant 19 Bank of America Corporate Center (“Bank”) on February 1, 2022, in response to 20 Plaintiffs’ First Amended Complaint. (Def.’s Mot. Dismiss (ECF No. 25).) For the 21 reasons explained below, the Court GRANTS Defendant Bank’s motion to dismiss with 22 leave to amend. 1 23 I. BACKGROUND 24 This litigation arises from a dispute among siblings regarding the provision of 25 care and control of assets for their mother, Lily McDow, who suffered a stroke in 2019 26 1 In the interests of justice and addressing the heavy civil caseloads in the Fresno courthouse, the 27 undersigned resolves only the pending motion to dismiss, ECF No. 25. Upon resolution of this motion, unless or until otherwise ordered by the Court, the case will remain as currently assigned and will retain 28 case number No. 1:21-cv-00119-NODJ-SKO. 1 and has since passed away. Plaintiffs Kennedy McDow and Lily McDow, proceeding 2 pro se, filed a first amended complaint (“FAC”) on January 18, 2022, suing Kennedy’s 3 three sisters, the Bank of America (“Bank”), and Jackson National Life Insurance 4 Company for various claims. (ECF 20.) 5 Relevant here, the FAC appears to allege that the sisters worked in concert to 6 exercise control over McDow’s assets and that the Bank refused to accept Lily 7 McDow’s amended durable power of attorney. (See generally FAC.) The Bank filed 8 the instant motion to dismiss on February 1, 2022 (Mot. to Dismiss (ECF 25)), Plaintiffs 9 untimely opposed (Opp’n, ECF 35), and the Bank replied (Reply, ECF 36). Plaintiffs 10 filed a second opposition without leave of court a few days later. (ECF 37). After Lily 11 McDow’s death, she was dismissed from the action,(ECF 58), and Kennedy McDow 12 was substituted in her place as executor of the estate (ECF 76). 13 II. LEGAL STANDARD 14 A complaint need contain only a “short and plain statement of the claim 15 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed 16 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule 17 demands more than unadorned accusations; “sufficient factual matter” must make the 18 claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or 19 formulaic recitations of elements do not alone suffice. Id. (citing Twombly, 550 U.S. at 20 555). This evaluation of plausibility is a context-specific task drawing on “judicial 21 experience and common sense.” Id. at 679. 22 III. ANALYSIS 23 In the motion to dismiss, the Bank asserts three reasons for this Court to dismiss 24 Plaintiffs’ first amended complaint. First, because the Younger doctrine purportedly 25 applies, the Court should abstain from adjudicating the matter. Second, dismissal is 26 appropriate under Federal Rule of Civil Procedure 12(b)(6) because Plaintiffs fail to 27 state a claim against the Bank, and third, dismissal is warranted because the Bank 28 does not owe Plaintiff Lily McDow any fiduciary duty. (See generally Opp’n). The 1 Court analyzes each argument in turn. 2 A. Younger Doctrine 3 The Bank first asserts that the Younger doctrine prevents this Court from 4 adjudicating Plaintiffs’ claims on account of an underlying conservatorship 5 proceeding. (Mot. to Dismiss at 6.) Federal district courts have abstained from 6 exercising subject matter jurisdiction when conservatorship proceedings are ongoing 7 under California law. Maier v. Orosco, No. EDCV 12-1122 GAF (AJW), 2012 WL 8 5425831, at *2 (C.D. Cal. Aug. 30, 2012) (internal citations omitted). Ordinarily, 9 Younger abstention is appropriate when state proceedings of a judicial nature are 10 ongoing, implicate important state interests, and provide an adequate opportunity to 11 raise federal questions. Id. (citing Middlesex Cnty. Ethics Comm’n v. Garden State Bar 12 Ass’n, 457 U.S. 423, 432 (1982). 13 This Court finds the Bank’s arguments regarding the Younger doctrine moot as 14 Plaintiff Lily McDow passed away after the filing of the instant motion and the executor 15 of her estate has since been substituted in her place. (See ECF 76.) Therefore, as the 16 underlying conservatorship proceeding has ceased, application of the Younger 17 doctrine is not warranted. 18 B. Failure to State a Claim under FRCP 12(b)(6) and Lack of Fiduciary 19 Duty 20 As to the Bank’s remaining arguments, the Court concludes that the Complaint, 21 as currently drafted, fails to “give the defendant fair notice of what the . . . claim is and 22 the grounds upon which it rests.” Twombly, 550 U.S. at 545 (quoting Conley v. 23 Gibson, 355 U.S. 41, 47 (1957).) While the FAC alleges the Bank did not honor 24 amended powers of attorney presented to it (see generally, FAC at 7), the Complaint 25 fails to identify a cause of action against the Bank; that is, it does not identify a law that 26 has been violated or a specific duty that has been breached together with sufficient 27 factual content to support that breach or violation. 28 1 Plaintiff will be given leave to file an amended complaint. If Plaintiff chooses to 2 file an amended complaint, he must address the problems with his complaint that are 3 explained above. Any amended complaint must be complete in itself. The Court 4 cannot refer to a prior complaint to understand Plaintiff’s claims. 5 In an amended complaint, Plaintiff must clearly identify each Defendant and the 6 action that Defendant took that violated Plaintiff’s rights. The Court is not required to 7 review exhibits to determine what Plaintiff’s charging allegations are as to each named 8 Defendant. If Plaintiff wishes to add a claim, he must include it in the body of the 9 complaint. The charging allegations must be set forth in the amended complaint, so 10 Defendants have fair notice of the claims Plaintiff is presenting. That said, Plaintiff 11 need not provide every detailed fact in support of his claims. Rather, Plaintiff should 12 provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 13 Any amended complaint must show the federal court has jurisdiction, the action 14 is brought in the right place, and Plaintiff is entitled to relief if Plaintiff’s allegations are 15 true. It must also contain a request for particular relief. Fed. R. Civ. P. 8(a)(1), (3). 16 In an amended complaint, the allegations must be set forth in numbered 17 paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all 18 against a single defendant. Fed. R. Civ. P. 18(a). If Plaintiff has more than one claim 19 based upon separate transactions or occurrences, the claims must be set forth in 20 separate paragraphs. Fed. R. Civ. P. 10(b). 21 An amended complaint must be complete in itself, without reference to any 22 prior pleading. E.D. Cal. R. 220. Once Plaintiff files an amended complaint, the 23 original pleading is superseded. By signing an amended complaint, Plaintiff certifies 24 he has made reasonable inquiry and has evidentiary support for his allegations, and 25 for violation of this rule, the court may impose sanctions sufficient to deter repetition 26 by Plaintiff or others. Fed. R. Civ. P. 11. 27 //// 28 //// 1 IV. CONCLUSION 2 For the reasons stated, the Court GRANTS the motion to dismiss with leave to 3 | amend. Plaintiff shall file an amended complaint within twenty-one (21) days of this 4 | Order. 5 This resolves ECF No. 25. 6 7 IT 1S SO ORDERED. 8 | Dated: _ January 3, 2024 “Danel J bnretto— Hon. Daniel alabretta ? UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28