17-835-cv
Guido v. Wells Fargo Bank, N.A.

                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the twenty-third day of October, two thousand seventeen.

PRESENT:          AMALYA L. KEARSE,
                  JOSÉ A. C ABRANES,
                  RICHARD C. WESLEY,
                                Circuit Judges.


NATALE GUIDO, LORETTA GUIDO,

                           Plaintiffs-Appellants,                   17-835-cv

                           v.

WELLS FARGO BANK, N.A.,

                           Defendant-Appellee.


FOR PLAINTIFFS-APPELLANTS:                              C HARLES KANNEBECKER , Milford, PA.

FOR DEFENDANT-APPELLEE:                                 C AMERON E. GRANT (Lisa J. Fried and
                                                        Stacey A. Lara on the brief), Hogan Lovells
                                                        US LLP, New York, NY.

       Appeal from a March 22, 2017 judgment of the United States District Court for the
Southern District of New York (Vernon S. Broderick, Judge).




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     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Plaintiffs-appellants Natale and Loretta Guido (the “Guidos”) appeal from a judgment
granting a motion to dismiss by defendant-appellee Wells Fargo Bank, N.A. (“defendant”). The
Guidos argue that the District Court erred in dismissing—pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure—the seven claims in their amended complaint: wrongful foreclosure,
common-law fraud, intentional infliction of emotional distress, malicious prosecution, abuse of
process, negligent infliction of emotional distress, and attempted larceny. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

         We review de novo the grant of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Pac. Inv. Mgmt. Co. v. Mayer Brown LLP, 603 F.3d 144, 150 (2d Cir. 2010).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

        Concerning the Guidos’ seventh claim, for attempted larceny under N.Y. Penal Law § 155.05
(McKinney 2017), we observe that even if private prosecution were authorized for such an offense,
the District Court lacked subject-matter jurisdiction over the claim because the diversity jurisdiction
of the district courts extends only to “civil actions.” 28 U.S.C. § 1332(a) (2012). The District Court
therefore properly dismissed the claim.

       Concerning the other six claims, we hold on independent review of the record that the
Guidos’ arguments are without merit, substantially for the reasons set forth in the District Court’s
Order and Memorandum dated March 21, 2017.

                                             CONCLUSION

        We AFFIRM the March 22, 2017 judgment of the District Court.


                                                            FOR THE COURT:
                                                            Catherine O’Hagan Wolfe, Clerk




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