United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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”).
Motions to Dismiss
defendants who have appeared now move to dismiss. ECF Nos. 6,
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
Legal Standards Governing Motions to Dismiss
Standards Under Rule 12(b)(1)
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).