Gueye v. Wells Fargo Bank

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 MADIABEL GUEYE, Case No. 3:22-cv-08904-JSC 8 Plaintiff, ORDER RE: DEFEDANTS’ MOTION 9 v. TO DISMISS 10 WELLS FARGO BANK, et al., Re: Dkt. No. 42 Defendants. [12] 13 Madiabel Gueye, proceeding without an attorney, sues Wells Fargo Bank, N.A. (“Wells 14 Fargo”) and Chris Potts, a district manager of a Wells Fargo Bank location, alleging Defendants 15 racially discriminated against him in violation of 42 U.S.C. § 1981 and intentionally inflicted 16 emotional distress upon him. Now pending before the Court is Defendants’ motion to dismiss. 17 (Dkt. No. 42.)1 Having carefully considered the briefing, the Court concludes oral argument is not 18 required, see N.D. Cal. Civ. L.R. 7-1(b), and GRANTS Defendants’ motion WITH LEAVE TO 19 AMEND. Plaintiff has not yet alleged sufficient facts to plausibly state a claim for relief, although 20 he may be able to do so. 21 BACKGROUND 22 I. COMPLAINT ALLEGATIONS 23 “Mr. Gueye is an African American male.” (Dkt. No. 40 ¶ 10.) He “operates an 24 automotive repair and diagnostics business” that regularly includes “cash receipts.” (Id. ¶ 9.) He 25 “has been a business customer of Defendant since 2007.” (Id. ¶ 8.) “Currently, Plaintiff has four 26 (4) business accounts and two (2) personal accounts with the Defendant.” (Id.) “[A]bout every [27] 1 other week, he or one of his employees visited the Antioch Branch to deposit cash into” Plaintiff’s 2 business accounts. (Id. ¶ 9.) Usually, Mr. Gueye or his employee deposited between “$10,000 to 3 $50,000 per visit.” (Id.) 4 Around August 28, 2022, “Mr. Gueye went to Wells Fargo Brank (branch located on A 5 Street) to open a new account” because his current account “was compromised.” (Id. ¶ 13.) 6 “When he arrived at the Branch he sat on one of the chairs and he was approached by an 7 employee,” who asked what the purpose of Mr. Gueye’s visit was. (Id.) “[T]he teller was staring 8 down at him clearly letting Mr. Gueye know that he was not welcome at the branch because the 9 employee recognize [sic] Mr. Gueye from previous incidents with deposit errors.” (Id.) “After 10 opening the account, Mr. Gueye left.” (Id.) 11 The next day, Mr. Gueye went back to the branch on A street to request a letterhead from 12 the account manager. (Id. ¶ 13.) “The account manager told him they did not have Wells Fargo 13 Bank letterhead so Mr. Gueye left.” (Id.) 14 On August 15, 2023, Mr. Gueye went to the Wells Fargo branch in Brentwood, California. 15 (Id. ¶ 14.) “When he arrived, he advised the account manager that he needed to open a new 16 business account for new business venture and presented her with the corporation paperwork that 17 he received from the Secretary of State.” (Id.) “At that point, the account manager informed Mr. 18 Gueye that she could not open the account because the corporate file were ‘fakes.’” (Id.) 19 Mr. Gueye left the branch and contacted the branch manager of the Wells Fargo located in 20 Railroad, Pittsburg, California. (Id.) Mr. Gueye arrived at the bank, and waited for Monica, the 21 bank manager. (Id.) After waiting a few minutes, Monica approached Mr. Gueye and “began to 22 yell” and “point her finger to the door.” (Id.) She told Mr. Gueye to “get out of the branch” 23 because she claimed Mr. Gueye was recording her. (Id.) Mr. Gueye informed Monica he was not 24 recording her. (Id.) She “stare[d] at Mr. Gueye in repulsive matter.” (Id.) He informed her he 25 needed to make a deposit in his accounts, and she “told him she did not care with smirk and that 26 Mr. Gueye needed to leave.” (Id.) “Mr. Gueye was embarrassed and confused and left the 27 branch.” (Id.) 1 U.S.C. § 1981 ; and (2) intentional infliction of emotional distress. 2 II. PROCEDURAL HISTORY 3 Wells Fargo and Mr. Potts moved to dismiss Plaintiff’s complaint. (Dkt. No. 42.) Seven 4 days after Mr. Gueye’s response was due, Mr. Gueye filed an opposition. (Dkt. No. 43.) The 5 Court will consider Mr. Gueye’s opposition as timely for purposes of this Order. 6 DISCUSSION 7 I. LEGAL STANDARD 8 A complaint should be dismissed under Rule 12(b)(6) if it lacks sufficient facts to “state a 9 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (quotations and citations omitted). A claim is facially plausible when it “pleads factual content 11 that allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Id. While “[a]ll allegations of material fact are taken as true and construed 13 in the light most favorable to the nonmoving party,” the court “need not . . . accept as true 14 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 15 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on 16 denial of reh’g, 275 F.3d 1187 (9th Cir. 2001) (cleaned up). 17 II. PLAINTIFF’S OPPOSITION AND ORIGINAL COMPLAINT 18 Mr. Gueye’s opposition does not dispute Defendants’ legal memorandum, but instead 19 contains additional factual allegations about his interactions with Defendants. In Mr. Gueye’s 20 opposition, he alleges “[d]ue to several ongoing issues with the Wells Fargo branch location on A 21 Street in Antioch CA, Mr. Gueye . . . escalated the concerns to the Regional Manager,” Mr. Potts. 22 (Dkt. No. 43 at 3.) Mr. Gueye asserts he “called Chris Potts and informed him that he went to the 23 branch and teller counted a deposit three times and gave Mr. Gueye three different amounts.” (Id.) 24 Mr. Gueye “requested the teller to count the money by hand and the teller refused.” (Id. at 3-4.) 25 After telling Mr. Potts about this interaction, Mr. Potts told Mr. Gueye “the tellers are afraid of 26 you,” and suggested an employee make the deposits instead or Mr. Gueye bank somewhere else. 27 (Id. at 4.) Mr. Gueye alleges each time he visited the bank “he spoke calm and did not raise his 1 Mr. Gueye’s opposition also alleges additional facts about Wells Fargo’s recent fines and 2 legal disputes. (Id.) He asserts, according to a Bloomberg report from March 2022, “Wells Fargo 3 was the only major lender to reject more Black mortgage refinancing applications than it approved 4 in the mortgage refinancing boom of 2020.” (Id. at 5.) 5 However, in assessing Defendants’ motion to dismiss, the Court cannot consider the new 6 allegations raised in Plaintiff’s opposition. See Schneider v. California Dep’t of Corr., 151 F.3d 7 1194, 1197 (9th Cir. 1998) (“The ‘new’ allegations contained in the inmates’ opposition motion, 8 however, are irrelevant for Rule 12(b)(6) purposes. In determining the propriety of a Rule 12(b)(6) 9 dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, such as a 10 memorandum in opposition to a defendant’s motion to dismiss.”). 11 Plaintiff’s amended complaint also omits allegations that were included in the original 12 complaint. (Dkt. No. 1 at ¶¶ 13-19.) As these allegations are not in the amended complaint (Dkt. 13 No. 40), the Court cannot consider them in deciding whether Plaintiff plausibly states a claim. 14 Plaintiff is instructed to include all details and factual allegations that support his 15 racial discrimination and emotional distress claims in any amended complaint. That some of 16 those alleged incidents may have occurred more than two years before he filed his lawsuit 17 does not mean he cannot allege them in his Second Amended Complaint. 18 III. 42 U.S.C. § 1981 19 Plaintiff’s first cause of action alleges Defendants violated 42 U.S.C. § 1981 . Section 20 1981 provides: 21 All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, 22 to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is 23 enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to 24 no other. [25] 42 U.S.C.A. § 1981 (a). The Supreme Court has “construed the section to forbid all ‘racial’ 26 discrimination in the making of private as well as public contracts.” Saint Francis Coll. v. Al27 Khazraji, 481 U.S. 604, 609 (1987). “To prevail,” in a § 1981 case, “a plaintiff must initially 1 protected right.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009 , 1019 2 (2020). So, “if the defendant would have responded differently but for the plaintiff ’s race, it 3 follows that the plaintiff has not received the same right as a white person.” Id. at 1015 . 4 The complaint alleges Mr. Gueye is “an African American male.” (Dkt. No. 40 ¶ 10.) 5 When a plaintiff files a complaint without representation by a lawyer, the Court must “construe the 6 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 7 338, 342 (9th Cir. 2010) (cleaned up). However, even liberally construing Mr. Gueye’s 8 complaint, his complaint does not state sufficient facts to plausibly support the inference 9 Defendants’ alleged actions were taken because of his race. For example, during his August 2022 10 interaction with a Wells Fargo teller, Mr. Gueye alleges the teller was “staring down at him clearly 11 letting Mr. Gueye know that he was not welcome at the branch because the employee recognize 12 [sic] Mr. Gueye from previous incidents with deposit errors.” (Dkt. No. 40 ¶ 13.) So, Mr. Gueye 13 pleads the reason the teller “star[ed]” at Mr. Gueye was because of his previous interactions with 14 the teller involving deposit errors; he does not allege and facts that plausibly support an inference 15 it was because of his race. Mr. Gueye must plead facts that explain why he believes the 16 interactions involving deposit errors support an inference of racial discrimination. 17 Similarly, Mr. Gueye’s complaint indicates his later disputes with Wells Fargo employees 18 were caused by issues with his paperwork being “fake”; but he does not allege the paperwork was 19 not fake or additional facts that would support an inference Defendants sent him away because of 20 his race. 21 Further, while the amended complaint alleges Mr. Gueye and his employees “have been 22 subjected to racial profiling, racial slurs, derogatory comments, suspicion, unequal treatment and 23 humiliation” by Wells Fargo’s employees, (Dkt. No. 40 ¶ 10), Mr. Gueye does not allege specific 24 facts supporting this conclusory statement. The amended complaint’s specific references to racial 25 profiling and discrimination allege legal conclusions that are unsupported by factual allegations, 26 so the Court cannot credit those conclusions with the presumption of truth. For example, the 27 amended complaint does not identify any times Wells Fargo employees used racial slurs toward 1 claim for relief under 42 U.S.C. § 1981 , and Defendants’ motion is GRANTED as to Plaintiff’s 2 first cause of action. 3 IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 4 Plaintiff’s second cause of action alleges Defendants intentionally inflicted emotional 5 distress on Plaintiff. (Dkt. No. 40 ¶¶ 20-22.) Plaintiff asserts Defendants’ actions were 6 “outrageous and intolerable in civilized society,” and were “intended to cause . . . emotional 7 distress.” (Id. ¶ 20.) As a result of Defendants’ actions, Plaintiff asserts he “suffer[s] a bad mental 8 state, severe depression, and anxiety” as well as post traumatic stress disorder and suicidal 9 thoughts.” (Id. ¶ 22.) 10 In California, 11 A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant 12 with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or 13 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. [14] 15 Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009) (cleaned up). “A defendant’s conduct is 16 ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized 17 community.’” Id. at 1050–51 (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 , 18 1001 (1993)). Further, “[l]iability for intentional infliction of emotional distress does not extend 19 to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. at 20 1051 (quotations and citations omitted). 21 The complaint fails to allege “extreme and outrageous” conduct. “[M]ere insulting 22 language, without more, ordinarily would not constitute extreme outrage unless it is combined 23 with aggravated circumstances.” Smith v. BP Lubricants USA Inc., 64 Cal. App. 5th 138 , 147 24 (2021)(cleaned up). In some circumstances, the use of racial slurs and insults may constitute 25 outrageous conduct. See Robinson v. Hewlett-Packard Corp., 183 Cal. App. 3d 1108 , 1129–30 26 (Ct. App. 1986) (“[A]n employer’s use of racial slurs, against an employee who is susceptible to 27 such slurs, may constitute ‘outrageous’ conduct.”); Smith, 64 Cal. App. 5th at 148 (“[A]n 1 coupled with aggravating circumstances.”) However, Plaintiff has failed to allege any racial slurs 2 or racially motivated insults. And, as explained above, as currently pled the amended complaint 3 does not support a plausible inference of racial discrimination. Nor has Plaintiff alleged any 4 aggravating factors, such as “a defendant (1) abus[ing] a relation or position which gives him 5 power to damage the plaintiff’s interest; (2) know[ing] the plaintiff is susceptible to injuries 6 through mental distress; or (3) act[ing] intentionally or unreasonably with the recognition that the 7 acts are likely to result in illness through mental distress.” Smith, 64 Cal. App. 5th at 147 (quoting 8 Agarwal v. Johnson 25 Cal.3d 932, 946 (1979), disapproved of on other grounds by White v. 9 Ultramar, Inc., 21 Cal. 4th 563 , 574 n.4 (1999)). 10 So, Defendants’ motion is GRANTED as to Plaintiff’s intentional infliction of emotional 11 distress claim. 12 V. LEAVE TO AMEND 13 Because Plaintiff could plead facts necessary to state a claim in an amended complaint, 14 Plaintiff may file a Second Amended Complaint. See Rosati v. Igbinoso, 791 F.3d 1037 , 1039 15 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend 16 unless it is absolutely clear that the deficiencies of the complaint could not be cured by 17 amendment.”) (cleaned up). Any amended complaint must be filed on or before April 12, 2024. 18 If Plaintiff does not file an amended complaint by that date, the action will be dismissed with 19 prejudice. 20 As discussed above, Plaintiff is instructed to include all relevant factual allegations in his 21 Second Amended Complaint—in deciding whether he states a claim the Court will be unable to 22 consider allegations in earlier versions of his complaint not included in the Second Amended 23 Complaint. As Plaintiff is proceeding without representation by a lawyer, the Court directs his 24 attention to the Handbook for Pro Se Litigants, which is available along with further information 25 on the Court's website located at https://www.cand.uscourts.gov/pro-se-litigants/. Plaintiff may 26 also contact the Legal Help Center for free assistance; he can make an appointment by calling 41527 782-8982 or emailing fedpro@sfbar.org. 1 CONCLUSION 2 For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss with 3 leave to amend. Any amended complaint must be filed on or before April 12, 2024. 4 This Order resolves Docket No. 42. 5 IT IS SO ORDERED. 6 Dated: March 7, 2024 [7] 8 re ACQUELINE SCOTT CORLE 9 United States District Judge [11] a 12 [16] = 17 Z 18