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Harihar v. Wells Fargo Na

United States District Court, D. Massachusetts

July 15, 2015

MOHAN A. HARIHAR, Plaintiff,
WELLS FARGO NA, et al., Defendants.



For the reasons stated below, the Court: (1) denies without prejudice the plaintiff's motion for leave to proceed in forma pauperis [ECF No. 3]; (2) denies without prejudice plaintiff's motions for injunctive relief [ECF Nos. 7 & 8]; (3) denies plaintiff's motion for appointment of a special prosecutor, and denies without prejudice plaintiff's motion for appointment of counsel [ECF No. 4]; (4) grants plaintiff's motion to file electronically [ECF No. 11], provided that plaintiff completes any necessary training; and (5) grants plaintiff thirty-five days to file a second amended complaint, and to either pay the filing fee or file a supplemental Application to Proceed in District Court Without Prepaying Fees or Costs.


On May 20, 2015, Plaintiff Mohan A. Harihar ("Harihar"), a resident of Lowell, Massachusetts, filed his complaint [ECF No. 1], along with an Application to Proceed Without Prepayment of Fees and Affidavit [ECF No. 3], and a Motion for Appointment of Counsel and/or Special Prosecutor [ECF No. 4].

This case arises out of the allegedly wrongful foreclosure of a mortgage held by defendants Wells Fargo and U.S. Bank N.A. on real property owned by Harihar in Lowell, Massachusetts [Complaint ¶¶ 15-17]. Apparently, Harihar had filed several actions in state court seeking to prevent the foreclosure, seeking a new trial and reconsideration. He now brings this federal action against thirteen defendants, including his lenders and their various counsel; a Massachusetts real estate company and two principals; a private couple that purchased the foreclosed property, the Commonwealth of Massachusetts and a residential mortgage-backed security ("RMBS") trust.

The nature of Harihar's claims is not entirely clear. The Complaint alleges that defendants violated the Massachusetts Consumer Protection Act, G.L. c. 93A [Complaint ¶ 1], and infringed on Harihar's intellectual property rights [Id. ¶¶ 1, 32, 34]. The Complaint also contains vague allegations about fraud; aiding and abetting fraud; anti-trust violations; fraudulent assignments; perjury; and violations of Harihar's 14th Amendment rights to due process and equal protection [Id. ¶ 32]. Plaintiff also obliquely references abuses of judicial discretion, and improper relationships and collusion amongst the Office of the Massachusetts Attorney General, the United States Attorney, the Boston Bar Association, and certain law firms [Id.] None of these allegations, however, are supported with specific facts. Harihar seeks equitable and monetary relief and a jury trial. He further alleges that he has already filed related complaints against the defendants with the FBI, Massachusetts Office of the Attorney General, the Massachusetts Board of Bar Overseers, the Northeast Association of Realtors, the Securities and Exchanges Commission and the American Civil Liberties Union [Complaint ¶ 28].

One month after filing his complaint, Harihar filed a document purporting to be an Amended Complaint [ECF No. 6], accompanied by a motion for preliminary injunctive relief [ECF No. 7], and a motion for a temporary restraining order [ECF No. 8].


A. Filing Fee

The fees for filing a civil action are the $350.00 filing fee and the $50.00 administrative fee. See 28 U.S.C. § 1914(a) ($350.00 filing fee for all non-habeas civil actions). An indigent litigant may request leave to proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1). The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis ("IFP") eligibility is that the litigant is "unable to pay such fees or give security therefor." The determination of what constitutes "unable to pay" or unable to "give security therefor, " and, therefore, whether to allow a plaintiff to proceed IFP is left to the sound discretion of the district court based on the information submitted by the plaintiff. Fridman v. City of New York, 195 F.Supp.2d 534, 536 (S.D.N.Y.), aff'd, 52 Fed.Appx. 157 (2d Cir. 2002) (citing Williams v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982); Potnick v. Eastern State Hospital, 701 F.2d 243 (2d Cir.1983)).

In his Application, Harihar declares under the penalty of perjury that he is employed and that he has almost one thousand dollars in a checking or savings account. He does not own property and has no dependents. He states that he is a party to litigation in state court that, if successful, may enable him to pay the applicable court fees [ECF No. 3].

Although the Court recognizes that Harihar may have limited income and savings, his Application is DENIED, without prejudice. The Application is incomplete because Harihar's request was submitted using an older version of the Application form. Because this older form fails to include information concerning monthly expenses, debts or financial obligations, the Court cannot determine whether Harihar is indigent within the meaning of the in forma pauperis statute. However, the Court will permit Harihar to supplement his current Application to Proceed in District Court Without Prepaying Fees or Costs by filing a new application using the proper form.[1]

B. Plaintiff's Amended Complaint

As an initial matter, Harihar's purported amended complaint runs afoul of Rule 15 of the Federal Rules of Civil Procedure. Harihar's amendment to his original complaint states that he is filing the amendment as an "update" addressing recent state court decisions and recent actions taken by some of the defendants. The amended complaint does not, however, contain any of the allegations or claims referenced in the original complaint. Generally, an amended pleading supersedes the original pleading such that the latter no longer has any function in the case. See ConnectU LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008). Because an amended complaint completely supersedes the original complaint, see Ramallo Bros. Printing, Inc. v. El Día, Inc., 490 F.3d 86, 88 n.2 (1st Cir. 2007), it must contain any and all relevant facts and claims for relief that plaintiff wishes to assert in this action. The Court will allow Harihar to file a second amended complaint to remedy this problem. Harihar should include in the second amended complaint all the claims he seeks to pursue in this action, as well as facts sufficient to support those claims.

In addition, any second amended complaint must comply with other provisions of the Federal Rules of Civil Procedure. Under Fed.R.Civ.P. 10, "[t]he title of the complaint must name all the parties." Fed.R.Civ.P. 10(a). The claims must be set forth "in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed.R.Civ.P. 10(b). Further, where a plaintiff brings claims against more than one defendant in a single lawsuit, the claims must be limited to those "arising out of the same transaction, occurrence, or series of transactions or occurrences." Fed.R.Civ.P. 20(a)(2)(A). The Court's Local Rules mandate that typed complaints be double-spaced (except for the identification of counsel, title of the case, footnotes, quotations and exhibits). See Local Rule 5.1(a)(2).

The Court notes that there are further deficiencies in Harihar's Complaint that must be remedied if this action is to proceed. First, the basis for this Court's subject-matter jurisdiction is not apparent from the face of the Complaint. Second, the Complaint does not clearly explain the legal basis for Harihar's claims, and pleads ...

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