Kent v. Century Manor Trust Ltd.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is proceeding in this matter pro se, and pre-trial proceedings are accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). Multiple motions to dismiss are before the court: (1) Motion to Dismiss by Defendant Bank of New York Mellon (ECF No. 6); (2) Motion to Dismiss by Defendant Guy D. Carlson (ECF No. 15); (3) Motion to Dismiss by Century Manor Trust et al. (ECF No. 22); (4) Motion to Dismiss by Francois Witoobi, Redspear Safety Pty Ltd, and Natasha Witoobi, in her capacity as trustee of the Francois and Natasha Witoobi Family Trust (Erroneously sued as the Family Trust Foundation) (ECF No. 26), and (5) Motion to Dismiss by Kurt T. Avdin, Avdin Law Group (ECF Nos. 30, 33 (amended to correct noticing information)). Plaintiff has opposed the motions at ECF Nos. 6 and 15. ECF Nos. 24, 25. For the reasons that follow, the undersigned recommends this case be DISMISSED in its entirety for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

         I. BACKGROUND

         A. The Complaint

         Thomas Kent, proceeding in pro se, filed a complaint against 36 defendants on July 10, 2019. ECF No. 1. Plaintiff paid the filing fee, id., so the complaint was not subject to screening under 28 U.S.C. § 1915(e)(2). Plaintiff alleges diversity of citizenship as the basis for jurisdiction, but also lists several federal criminal statutes in support of federal question jurisdiction. Id. at 11. Plaintiff alleges the amount in controversy is $87 billion, which defendants stole and misused as bank guarantees to generate cash funds and participate in private trade transactions. Id. at 12.

         Plaintiff's complaint presents six putative causes of action: (1) transportation of stolen goods in violation of 18 U.S.C. § 2314; (2) laundering of monetary instruments in violation of 18 U.S.C. § 1956; (3) bank fraud in violation of 18 U.S.C. § 1344 (fraudulently obtaining funds from banks); (4) banker fraud in violation of 18 U.S.C. § 656 (misapplication and theft by bank officers); (5) civil liability for conspiracy in violation of 18 U.S.C. § 317; and (6) prohibited activities in violation of 18 U.S.C. § 1962. Id. at 17.

         Plaintiff alleges that defendants stole and misrepresented at least two cash-backed bank guarantee instruments. ECF No 1 at 12. Plaintiff goes on to describe a complex web of interactions and relationships among the various defendants, and between defendants and plaintiff's business, CATS. Id. at 21-25. Although the only named plaintiff is “Thomas Kent, an individual” (see ECF Nos. 1 at 1, 12, 15, 20), the body of the complaint refers to CATS repeatedly as the injured party and sometimes as the plaintiff. See, e.g., ECF No. 1 at 21 (“plaintiff CATS (Mr. Thomas Kent) provided . . .”), (“Strategic Gold (Mr. David Siglin) sent plaintiff CATS an email . . .”), 22 (“Cats confirmed the BG . . .”), (“without plaintiff CATS' knowledge or approval”).

         B. Motions to Dismiss

         All defendants who have appeared now move to dismiss. ECF Nos. 6, 15^[1], 22, 26 and 30. These motions present various grounds for dismissal, but one deficiency is addressed by all: the fact that plaintiff does not state any plausible civil claim. ECF Nos. 6-1 at 2; 22-1 at 14; 26 at 19; 30-1 at 6. The motions at ECF Nos. 15 and 26 also raise the threshold issue of standing. Because the court agrees that plaintiff lacks standing to pursue this case, the court lacks subject matter jurisdiction and the case as a whole must therefore be dismissed.

         II. ANALYSIS

         A. Legal Standards Governing Motions to Dismiss

         1. Standards Under Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001).

         2. Standards ...