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Humberd v. Bank of Dene

United States District Court, D. Nevada

August 27, 2019

LAURIE HUMBERD, Plaintiff,
v.
BANK OF DENE, et al., Defendants.

          ORDER

          ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE

         Presently 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.

         I. In Forma Pauperis Application

         Plaintiff 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.

         II. Screening the Complaint

         Upon 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).

         In 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).

         On 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.

         On or 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.

         On or 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 happened.

         Plaintiff 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.

         Plaintiff 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.[1]

         Accordingly, 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 ...


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