United States District Court, D. Nevada
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE
before the Court is pro se Plaintiff Laurie
Humberd's (“Humberd”) Application to Proceed
In Forma Pauperis (ECF No. 1) attached to which is
Plaintiff's Complaint against Defendants Bank of Dene;
Prime Business Services, Inc.; and Michael Stephen Young.
In Forma Pauperis Application
has submitted the declaration required by 28 U.S.C. §
1915(a) showing an inability to prepay fees and costs or give
security for them. Accordingly, Plaintiff's request to
proceed in forma pauperis will be granted.
Screening the Complaint
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The court liberally construes pro se complaints
and may only dismiss them “if it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave
to amend the complaint with notice regarding the
complaint's deficiencies. Cato v. United States,
70 F.3d 1103, 1106 (9th Cir. 1995).
August 16, 2019, Plaintiff filed her Complaint alleging the
following facts. On July 26, 2017, Plaintiff entered into a
contractual agreement with GTF Holdings, LLC, and its owner
Lewis E. Taylor, III, wherein Plaintiff agreed to leverage a
property purchase for the purposes of funding a
“Species Survival Facility for Southern Black
Rhino” in exchange for compensation. ECF No. 1-1 ¶
7. On September 11, 2017, pursuant to the agreement, $5, 000,
000.00 was transferred from the Bank of Dene account of Gene
Holdings, LLC and/or Lewis E. Taylor, III, to Plaintiff's
Bank of Dene checking account. ECF No. 1-1 ¶ 8. On or
about September 11, 2017, Plaintiff confirmed through the
Bank of Dene's business computer account management
system that her checking account was credited with the sum of
$5, 000, 000.00, said funds to be held free and clear of any
liens or holds against Plaintiff's access to those funds.
ECF No. 1-1 ¶ 9.
about September 13, 2017, Plaintiff initiated multiple wire
transfers of the funds held in her Bank of Dene account to
other banking institutions for the benefit of funding escrow
and closing the property purchase. ECF No. 1-1 ¶ 10.
Every attempted wire transfer failed. ECF No. 1-1 ¶ 11.
On or about September 15, 2017, Plaintiff again initiated
multiple wire transfers to transfer funds held in her Bank of
Dene account to other banking institutions, and again, each
attempted wire transfer failed. ECF No. 1-1 ¶ 12.
about April 17, 2018, Plaintiff again initiated multiple wire
transfers to transfer funds held in her Bank of Dene account.
ECF No. 1-1 ¶ 14. Although Plaintiff does not explicitly
state that her third attempted wire transfer failed, it is
apparent from the face of her Complaint that is again what
alleges that Defendant Michael Young (“Young”)
intentionally precluded funds from being accessed for her
use. ECF No. 1-1 ¶¶ 3, 11-13, 19, 21, 25, 29, 33,
36, 38. Plaintiff alleges that Young is the President and
Chairman of the Bank of Dene and that Defendant Prime
Business Services, Inc., is a common law trust for Bank of
Dene, directly and proximately involved with the bank's
overall operations and oversight. ECF No. 1-1 ¶¶ 2,
3, 13, 15, 18, 20. Further, Plaintiff asserts claims against
Defendants sued herein as Does 1-10 and Roe Corporations
1-10. ECF No. 1-1 ¶ 4. Generally, “Doe”
pleading is improper in federal court. See Bogan v. Kenne
Corp., 852 F.2d 1238, 1239 (9th Cir. 1988). The Federal
Statutes and the Federal Rules of Civil Procedure do not
provide for the use of fictitious parties. Fifty
Associates v. Prudential Ins. Co., 446 F.2d 1187, 1191
(9th Cir. 1970). It is unnecessary and improper to include
“Doe” parties in the pleadings, but this fact
does not “preclude a party's right, upon learning
of the participation of additional parties, to seek to amend
the complaint and have the amendment relate back in time to
the original filing if the circumstances justify it.”
Graziose v. American Home Products Corp., 202 F.R.D.
638, 643 (D. Nev. 2001). Here, Plaintiff stated that she will
amend her complaint to show the fictitious Defendants'
true names and capacities when the same are ascertained. ECF
No. 1-1 ¶ 4. Accordingly, the Court will allow
Plaintiff's complaint to proceed against Bank of Dene,
Prime Business Services, Inc., and Michael Stephen Young. The
Court reserves the right to grant Plaintiff leave to amend
her complaint and have the amendment relate back in time to
the original filing if Plaintiff learns of the participation
of additional parties.
brings claims for (1) violations of the Racketeer Influenced
and Corrupt Organizations Act of 1970 (“RICO”),
18 U.S.C. Section 1961 et seq.; (2) negligent
supervision; (3) breach of contract; (4) breach of the
implied covenant of good faith and fair dealing; and (5)
fraud and misrepresentation against Defendants. ECF No. 1-1
¶¶ 17-39. Taking all allegations of material fact
as true and construed in the light most favorable to the
plaintiff, the Court finds that the complaint is sufficient
to state a claim.
IT IS THEREFORE ORDERED that Plaintiff's Application for
Leave to Proceed In Forma Pauperis (ECF No. 1) is
GRANTED. Plaintiff will not be required to pay the filing fee
in this action. Plaintiff is permitted to maintain this
action to conclusion without the necessity of prepayment of
any additional fees or costs or the giving of a security for
fees or costs. This Order ...