IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ANDREW G. CLARK, 

Plaintiff, 

v. 

ERIK HASSELMAN, District Attorney's 

Office for Lane County, Oregon; 

WELLS FARGO BANK, N.A.; 

OGLETREE, DEAKINS, NASH, SMOAK & 

STEWART, P.C., a South Carolina Corporation; 

Defendants. 

COFFIN, Magistrate Judge: 

Civ. No. 6:14-cv-01103-TC 

FINDINGS AND 

RECOMMENDATION 

Defendant Wells Fargo Bank, N.A., ("Wells Fargo") moves to dismiss plaintiff Andrew 

Clark's claims against it with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative, 

to strike plaintiffs First Amended Complaint ("FAC") pursuant to Fed. R. Civ. P. 12(±). (# 110). 

Wells Fargo also filed a Request for Judicial Notice in Support of its Motion to Dismiss(# 112). 

For the reasons set forth below, Wells Fargo's motion to dismiss plaintiffs claims against it with 

prejudice (# 110) should be granted and Wells Fargo's Request for Judicial Notice of its Motion 

to Dismiss for Failure to State a Claim(# 112) should be denied as moot. 

1 - FINDINGS AND RECOMMENDATION 

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BACKGROUND 

Plaintiff was employed by Wells Fargo as a mortgage originator from September 2009 

until June 2011, when he was terminated for "repeatedly displaying unprofessional conduct." 

Clark v. Wells Fargo Bank, NA. ("Clark III"), No. 3:13-cv-01546-AA, 2014 WL 2998600, *1 

(D. Or. July 1, 2014). At some point during his tenure at Wells Fargo, plaintiff began compiling 

reports regarding the bank's alleged violations of the Sarbanes-Oxley and Frank-Dodd Acts, 

which he transmitted both internally and to various government agencies, including the Federal 

Bureau of Investigation and Central Intelligence Agency. Id. After being terminated from Wells 

Fargo in June 2011, plaintiff posted Wells Fargo's confidential and proprietary records, including 

private customer information, on his website. Id. 

On July 18, 2011, the Eugene Police Department contacted plaintiff at his home because 

Wells Fargo reported that he was trespassing and had sent an email referencing genocide. Id. 

Police officers warned plaintiff to avoid Wells Fargo property in the future. On July 29, 2011, 

the police arrested plaintiff for second degree municipal trespass. Id. Plaintiff was held in the 

Lane County jail for 18 hours before being released and the trespass charge later being 

dismissed. Id. 

In August 2011, Wells Fargo commenced a lawsuit seeking to enjoin plaintiff from 

publishing, controlling, disclosing, or retaining any of its equipment, confidential customer 

information, or trade secrets. Id. Plaintiff filed numerous motions, which, amongst other things, 

attacked Wells Fargo's counsel, Ogletree, Deakins, Nash, Smoak and Stewart, P .C. ("Ogletree"), 

and alleged that Wells Fargo was engaging in racketeering and retaliation; the court denied each 

of plaintiffs motions. Id. The court, however, permitted Wells Fargo to file documents 

reflecting plaintiffs inappropriate correspondences under seal. Id. 

2 - FINDINGS AND RECOMMENDATION 

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On October 5, 2012, after two hearings, the court granted summary judgment in favor of 

Wells Fargo and entered a permanent injunction. See generally Wells Fargo Bank, NA. v. Clark 

("Clark!''), 2012 WL 4794156 (D. Or. Oct. 5, 2012). At that time, the court held plaintiff in 

contempt for failing to "comply with standards of professionalism in all his communications 

with Wells Fargo and its counsel." Id at 5-7. Plaintiff sent hundreds of emails and faxes to 

Ogletree, some of which were threatening and/or obscene, and all of which "had little to no 

bearing upon [any] legal issue between plaintiff and defendant," despite being repeatedly 

instructed by the court "to limit his communications to plaintiffs counsel's firm in Portland and 

to keep those to a strictly professional tone." Id Thereafter, the court denied several motions 

for reconsideration filed by plaintiff. See generally Wells Fargo Bank, N .A. v. Clark ("Clark 

II''), 2013 WL 2038561 (D. Or. May 14, 2013). 

On July 18, 2013, police officers arrived at plaintiffs home to interview him about 

certain faxes and emails he had sent Ogletree and one of its attorneys, Leah Lively. Clark Ill, 

2014 WL 2998600, *1. Although plaintiff denied that the communications at issue were 

threatening, officers warned him if he continued to communicate inappropriately with Ogletree 

and Lively, he may be criminally charged with stalking. Id On July 23, 2013, plaintiff sent 

another fax to Ogletree and Lively in contravention of police orders. Id On July 25, 2013, 

plaintiff was arrested and charged with ten counts of stalking; he was jailed for six days and 

released with an electronic ankle bracelet after posting bail. Id 

On August 3, 2013, plaintiff initiated the Clark Illlawsuit against Wells Fargo, Ogletree, 

and Securitas Corporation ("Securitas"), as well as certain individually named employees, 

alleging: (1) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"); (2) 

deprivation of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights in violation of 

3 - FINDINGS AND RECOMMENDATION 

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42 U.S.C. § 1983; (3) defamation; (4) violations of the Occupational Safety and Health Act 

("OSHA"); (5) gross negligence; and (6) a conspiracy against his constitutional rights in 

violation of 18 U.S.C. §§ 241, 242. Id. 

On January 9, 2014, Plaintiff entered into a plea agreement, which, in relevant part, 

precludes him from contacting Ogletree or its attorneys, except through counsel, for ten years. 

Id. On July 1, 2014, Wells Fargo's motion to dismiss was granted in the Clark III suit and the 

case was dismissed. Id. at 9. On July 16, 2014, plaintiff filed a motion to set aside the Clark III 

judgment alleging fraud upon the court. Plaintiffs motion was denied and on July 22, 2014, 

plaintiff appealed the dismissal. Pl. 's Resp. to Mot. to Dismiss 4, 9. However, on July 11, 2014, 

eleven days prior to filing the aforementioned motion and appeal to the Clark III judgment, 

plaintiff filed the immediate action against Wells Fargo; the City of Eugene, Oregon; Lane 

County, Oregon; the State of Oregon; Alex Gardner of the District Attorney's Office for Lane 

County, Oregon; Ogletree; and Eric Hasselman, of the Lane County District Attorney's Office. 

Pl.' s Com pl. 1. 

On August 4, 2014, Wells Fargo filed a motion to dismiss plaintiffs claims against it(# 

10) and on November 24, 2014, this court ordered plaintiff to show cause why Well's Fargo's 

motion to dismiss should not be granted. (# 70). On December 9, 2014, plaintiff filed a motion 

objecting to this court's order to show cause(# 75) and on April 9, 2015, District Judge Michael 

McShane adopted this court's order to show cause "in full" and agreed with this court's view that 

"plaintiffs action can only be characterized as a nuisance lawsuit" and that this court's warning 

that his actions could subject him to contempt of court was "entirely appropriate." (# 87). 

On December 24, 2014, plaintiff filed a motion for leave to file a FAC (# 76), which this 

court denied without prejudice because plaintiffs motion failed to comply with Local Rules 

4 - FINDINGS AND RECOMMENDATION 

Case 6:14-cv-01103-JR Document 126 Filed 04/04/16 Page 4 of 11
("LR") 7-l(a) and 15-l(d)(l). (# 86). On May 1, 2015, plaintiff filed another motion for leave 

to file a F AC, this time including a copy of the proposed F AC, as well as all exhibits referenced 

by the FAC as LR 15(d)(l) requires. (# 92). On September 21, 2015, this court granted 

plaintiffs motion for leave to file a FAC (# 99) and on September 28, 2015, plaintiff filed the 

FAC (# 100) that is now before the court. Plaintiffs FAC asserts two causes of action against 

defendants, the first of which, implicates only defendant Eric Hasselman, and makes no 

allegations against Wells Fargo. FAC (# 100) at 9-10. Plaintiffs second cause of action alleges, 

in relevant part, that Wells Fargo violated the RICO Act, 18 U.S.C. § 1962(c), by: (a) 

"transmitting a threat report to the Eugene Police Department on July 28, 2011 with no factual 

basis to support probable cause for arrest"; (b) commencing the Clark I suit against him; ( c) 

conspiring with defendants Ogletree and Hasselman to deprive him of his equal protection rights 

between June 14, 2013 and January 9, 2014; 1 and (d) "commit[ting] at least two predicate acts 

constituting a 'pattern' of 'racketeering."' Id. at 10-12. On November 16, 2015, Wells Fargo 

submitted the Motion to Dismiss (# 110) and Request for Judicial Notice (# 112) that are 

presently before the court. 

STANDARD OF REVIEW 

Where the plaintiff "fails to state a claim upon which relief can be granted," the court 

must dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint 

must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint 

is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. 

1 Plaintiffs allegations in the FAC that correlate with the date range from June 14, 2013, to 

January 9, 2014, all relate to plaintiffs arrest, plea agreement, and conviction stemming from his 

stalking charges. Pl.'s FAC (# 100) iii! 31-46. 

5 - FINDINGS AND RECOMMENDATION 

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Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing 

more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to 

be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Rather, to state a plausible claim 

for relief, the complaint "must contain sufficient allegations of underlying facts" to support its 

legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011), cert. denied, 132 S.Ct. 

2101 (2012). 

DISCUSSION 

Wells Fargo moves the court for an order dismissing with prejudice plaintiffs claims 

against it under Fed. R. Civ. P. 12(b)(6) because: (1) plaintiffs claims against it are barred by the 

doctrine of res judicata; and (2) plaintiff cannot state a claim upon which relief can be granted. 

Wells Fargo's Mot. to Dismiss and Mot. to Strike 2. In the alternative, Wells Fargo moves the 

court to strike plaintiffs FAC pursuant to Fed. R. Civ. P. 12(f) because plaintiffs FAC is 

"materially different than the complaint the court granted plaintiff leave to file." Id. 

I. Res Judicata 

Plaintiff argues that its claims against Wells Fargo are not barred by resjudicata because: 

(1) Wells Fargo already presented a resjudicata argument in its prior motion to dismiss and the 

court allowed repleading; (2) the F AC alleges actions that occurred after the complaint in the 

Clark III lawsuit was filed, specifically that "the plea deal that resulted in Ogletree's dismissal 

from the prior action was a product of defendant's racketeering activity"; and (3) "the prior case 

was not litigated on its merits," which "led to the RICO claim being dismissed without 

addressing the merits." Pl.'s Resp. to Wells Fargo's Mot. to Dismiss 4. 

Claim preclusion, otherwise known as res judicata, "bars all grounds for recovery that 

could have been asserted, whether they were or not, in a prior lawsuit between the same parties 

6 - FINDINGS AND RECOMMENDATION 

Case 6:14-cv-01103-JR Document 126 Filed 04/04/16 Page 6 of 11
on the same cause of action." Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 525, 528-29 

(9th Cir. 1998). The doctrine "conserves judicial resources and fosters reliance on judicial action 

by minimizing the possibility of inconsistent decisions." Tahoe-Sierra Preservation Council, 

Inc., v. Tahoe Reg'/ Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). 

"Res judicata is applicable whenever there is (1) an identity of claims; (2) a final 

judgment on the merits; and (3) privity between parties." Id. (internal citation omitted). 

"Identity of claims exists when two suits arise from the same transactional nucleus of facts." Id. 

'"Unless the court in its order for dismissal otherwise specifies, a dismissal ... other than a 

dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, 

operates as an adjudication upon the merits."' Stewart v. US. Bancorp, 297 F.3d 953, 957 (9th 

Cir. 2002) (quoting Fed. R. Civ. P. 41(b)). Finally, "a dismissal for failure to state a claim under 

Rule 12(b)(6) is a 'judgment on the merits' to which res judicata applies." Communication 

Mgmt. Servs., LLC v. Qwest Corp., 67 F. Supp. 3d 1159, 1169 (D. Or. 2014) (quoting Stewart, 

297 F.3d at 957). 

Here, the court finds unpersuasive plaintiffs argument that his claims are not barred by 

res judicata simply because Wells Fargo already presented a res judicata argument in its prior 

motion to dismiss and the court allowed repleading. Plaintiff was allowed to replead in this case 

only after being ordered to show cause why defendants' motions to dismiss should not be 

granted because, as stated above, this court found that plaintiffs action can only be characterized 

as a nuisance lawsuit and warned that his actions could subject him to contempt of court. In so 

finding, this court noted that: (1) plaintiffs complaint did "not comply with the minimal 

pleading requirements of Federal Rules of Civil Procedure 8(a)"; (2) plaintiff had "not responded 

in any meaningful way to defendant's dispositive motions"; and (3) "the record before the court 

7 - FINDINGS AND RECOMMENDATION 

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indicates that most if not all of plaintiffs claims are barred by res judicata." (# 70) at 1. 

Consequently, Wells Fargo's motion was denied without prejudice, until such time that plaintiff 

complied with this court's order. Accordingly, because Wells Fargo's motion was denied 

without prejudice, it has appropriately reasserted a res judicata defense here. 

Similarly unpersuasive is plaintiffs argument that res judicata does not apply here 

because the F AC alleges actions that occurred after the complaint in the prior Clark III lawsuit 

was filed, specifically that the plea deal from the prior action was a product of Wells Fargo's 

alleged racketeering activity. An inspection of the Clark III opinion reveals that plaintiff filed a 

motion to augment the record in that case, which caused the court to consider whether Wells 

Fargo was responsible for any wrongdoing relating to plaintiffs plea deal. See Clark III, 2014 

WL 2998600, *3 ("Clark also filed a motion with this court impugning his plea deal and 

indicating that he would appeal that conviction. See generally Pl.' s Mot. to Augment the 

Record."). Specifically, the Clark III court found there was no "indicat[ion] that Wells Fargo 

was responsible or involved in the charges Ogletree and Lively filed against him" and thus, any 

allegations of any "wrongdoing relating to this event are not plausible." Id. Moreover, the court 

found that "Clark's plea agreement, wherein [he] stipulated to one count of stalking, establishes 

that Ogletree's and Lively's complaints, as wells as the actions of law enforcement in charging 

him and taking him into custody, were legally valid." Id. Finally, the court found that plaintiffs 

"claims that are premised on his July 2013 interactions with the police and subsequent arrest and 

criminal conviction fail." Id. 

Accordingly, because the Clark III court squarely addressed plaintiffs accusations 

against Wells Fargo relating to any wrongdoing in connection with his arrest, plea deal, and 

conviction, and found that Wells Fargo was not responsible or involved, res judicata precludes 

8 - FINDINGS AND RECOMMENDATION 

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re-litigation of those issues here. Siegel, 143 F.3d at 528-29; Tahoe-Sierra Preservation 

Council, Inc., 322 F.3d at 1077. 

Finally, this court finds unpersuasive plaintiffs argument that res judicata does not apply 

here because his RICO claim against Wells Fargo in Clark Ill was dismissed without reaching 

the merits. In addition to the Clark Ill court's findings stated above, the Clark Ill court also 

considered plaintiffs accusations that Wells Fargo violated RICO by "intentionally harassing 

him by malicious prosecution of groundless civil and criminal offenses" and found that 

plaintiffs "RICO claims are defective in many respects." Clark Ill, 2014 WL 2998600, 4. The 

Clark Ill court found that "Clark's claims are based, in part, on the alleged injustices he suffered 

pursuant to his previous litigation with Wells Fargo" in the Clark I and Clark II suits, however, 

"because those issues were previously litigated between the same parties and resulted in a final 

judgment, they cannot form the basis of this action." Id. at 4-5 (internal quotations omitted). 

Moreover, the Clark Ill court found that plaintiff "fails to evince a pattern of racketeering 

activity" and, therefore, could not "conclude that there is any continuing threat of criminal 

activity." Id. The Clark Ill court, therefore, granted Wells Fargo's Rule 12(b)(6) motion to 

dismiss plaintiffs RICO claims against it. Id. at 5. Accordingly, this court finds that plaintiffs 

RICO claim against Wells Fargo in Clark Ill was decided on the merits. Fed. R. Civ. P. 41(b); 

Stewart, 297 F.3d at 957; Communication Mgmt. Servs., LLC, 67 F. Supp. 3d at 1169. 

Because plaintiffs claims in Clark III were decided on the merits, the only remaining 

issues are whether there is privity between parties and an identity of claims. Tahoe-Sierra 

Preservation Council, Inc., 322 F.3d at 1077. It is undisputed that this action involves the same 

parties as the prior Clark Ill action against Wells Fargo. See Pl.'s Opp'n to Wells Fargo's First 

Mot. to Dismiss (#77), 10 ("plaintiff concedes that Wells Fargo N.A. was a party to the prior 

9 - FINDINGS AND RECOMMENDATION 

Case 6:14-cv-01103-JR Document 126 Filed 04/04/16 Page 9 of 11
case 6:13-cv-01546-AA."). Accordingly, this court finds that there is privity between the parties. 

Moreover, plaintiff previously admitted that an identity of claims exists between the instant suit 

and the Clark III suit. See Id. ("Plaintiff concedes that the same facts and laws were at issue in 

the prior [Clark III] case."). However, to be sure, an inspection of the Clark III opinion and 

plaintiffs claims in the instant case confirms that an identity of claims exists. 

As previously stated, in Clark III the court found that: (1) Wells Fargo is not responsible 

for any wrongdoing relating to plaintiffs arrests, plea deal, or conviction; (2) plaintiffs claims 

based on previous litigation with Wells Fargo could not form the basis of that action because 

those issues were previously litigated between the same parties and resulted in a final judgment; 

and (3) plaintiff failed to evince a pattern of racketeering activity. Similarly, plaintiff asserts 

here that Wells Fargo violated the RICO Act: (1) through alleged wrongdoing stemming from his 

arrests, plea deal, and conviction; (2) by commencing the Clark I suit against him; and (3) by 

committing at least two predicate acts constituting a pattern of racketeering. 

Accordingly, because there is privity between the parties, an identity of claims, and a 

previous judgment on the merit of those claims, this court finds that res judicata precludes 

plaintiffs RICO claim against Wells Fargo here. As such, Wells Fargo's motion to dismiss 

plaintiffs claims against it with prejudice (# 110) should be granted and its motion to strike 

plaintiffs FAC should be dismissed as moot. Further, Wells Fargo's Request for Judicial Notice 

of its Motion to Dismiss for Failure to State a Claim(# 112) should also be dismissed as moot. 

CONCLUSION 

For the reasons stated, Wells Fargo's motion to dismiss plaintiffs claims against it with 

prejudice (# 110) should be granted and its Request for Judicial Notice of its Motion to Dismiss 

for Failure to State a Claim(# 112) should be denied as moot. 

10 - FINDINGS AND RECOMMENDATION 

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SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. If no objections 

are filed, the Findings and Recommendation will go under advisement on that date. If objections 

are filed, a response is due fourteen (14) days after being served with a copy of the objections. 

When the response is due or filed, whichever date is earlier, the Findings and Recommendation 

will go under advisement. 

., 

DATED this __i_ day of April, 2016. 

11 - FINDINGS AND RECOMMENDATION 

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