United States District Court, D. Minnesota
Hamilton-Warwick, pro se.
E. Penny Sayler and Jonathan P. Norrie, BASSFORD REMELE, PA,
for defendants U.S. Bancorp and U.S. Bank National
A. Nicely and Larry L. Goodman, FEDERAL DEPOSIT INSURANCE
CORPORATION, for defendant Federal Deposit Insurance
MEMORANDUM OPINION AND ORDER ON REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
R. TUNHEIM Chief Judge.
2015, Plaintiff Amy Hamilton-Warwick initiated this pro
se action against the Federal Deposit Insurance
Corporation (“FDIC”) and U.S. Bancorp and U.S.
Bank National Association (collectively, “U.S.
Bank”) alleging that U.S. Bank committed various
illegal actions against her in managing her U.S. Bank
account. (Compl., June 16, 2015, Docket No. 1.) In February
2016, the Court found that Hamilton-Warwick had failed to
properly serve the defendants and granted her thirty days to
perfect service on each defendant. (Mem. Op. and Order, Feb.
24, 2016, Docket No. 55.) Hamilton-Warwick then filed an
amended complaint. (Am. Compl., Mar. 1, 2016, Docket No. 56.)
In her amended complaint, Hamilton-Warwick alleges that
Defendants committed fraud. (Am. Compl. at 4-6.)
defendant has moved to dismiss Hamilton-Warwick's
complaint for failure to state a claim. (FDIC's Mot. to
Dismiss, Mar. 9, 2016, Docket No. 58; U.S. Bank's Mot. to
Dismiss, Mar. 28, 2016, Docket No. 67.) In
Hamilton-Warwick's briefing on those motions to dismiss
and at the motion hearing before United States Magistrate
Judge Hildy Bowbeer, she argued for the first time that
Defendants were liable not only for common law fraud, but
also for violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), the Bank Holding
Company Act (“BHCA”), 12 U.S.C. § 503, and
the Electronic Funds Transfer Act (“EFTA”).
Hamilton-Warwick cited none of those legal authorities in her
complaint or amended complaint. In May 2016, the Magistrate
Judge issued a Report and Recommendation
(“R&R”) recommending that Defendants'
motions be granted and Hamilton-Warwick's complaint be
dismissed in its entirety. (R&R, May 18, 2016, Docket No.
96.) The Magistrate Judge recommended that all of
Hamilton-Warwick's claims against the FDIC and also her
RICO, BHCA, and § 503 claims against U.S. Bank be
dismissed with prejudice. But the Magistrate Judge also
recommended that the fraud and EFTA claims be dismissed
without prejudice, because although Hamilton-Warwick had
failed to state a claim generally, it was conceivable that
she could, in a future complaint, allege sufficiently
detailed facts to state fraud and EFTA claims.
and U.S. Bank each objected to the R&R.
(Hamilton-Warwick's Objs., May 24, 2016, Docket No. 97;
U.S. Bank's Objs., June 1, 2016, Docket No. 98).
STANDARD OF REVIEW
the filing of an R&R by a magistrate judge, “a
party may serve and file specific written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b)(2); accord D. Minn. LR 72.2(b). “The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3).
has seven objections to the R&R. First, she objects to
the Magistrate Judge's statement that she “declined
assistance” from the Federal Bar Association's
pro se project. (Hamilton-Warwick's Objs. at
1-2.) Hamilton-Warwick states she accepted assistance and had
an “initial conversation” with an attorney she
met through the project, but had no further contact with the
attorney because she understood that to be “the
extent” of the project. (Id. at 2.) The Court
is unaware of the exact details of Hamilton-Warwick's
contact with the pro se project, but because this
objection is solely to the R&R's factual summary of
the case and has no bearing on the outcome of the now-pending
motions, the Court will sustain the objection.
Hamilton-Warwick objects to the R&R's statement that
she “demands $250, 000.00 in her request for
relief.” (Hamilton-Warwick's Objs. at 2;
see R&R at 3.) Hamilton-Warwick's complaint
requests damages “in excess” of $250, 000.00.
(Am. Compl. at 6.) Again, the Court will sustain this
objection, but notes that the distinction has no effect on
the outcome of the pending motions.
third and fourth objections argue that dismissal is
inappropriate because Defendants each improperly styled their
motions as motions to dismiss “the complaint, ”
instead of the amended complaint. (Hamilton-Warwick's
Objs. at 3-4.) But neither party made the mistake
Hamilton-Warwick accuses them of making. While it is true
that the FDIC's moving document does reference “the
complaint” and not the amended complaint, the
FDIC's memorandum in support of its motion makes clear it
is seeking to dismiss the amended complaint. (FDIC's Mot.
to Dismiss at 1, 3, 7, 10 (stating that the amended complaint
should be dismissed).) U.S. Bank's moving document and
memorandum in support of its motion each request the
dismissal of the ...