UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CLAYTON UTTERBACK, ) et al., ) ) Petitioners, ) ) Civil Action No. 09-2236 (EGS) v. ) ) TIMOTHY F. GEITHNER, ) ) Respondent. ) )

MEMORANDUM OPINION

Pending before the Court are respondent’s motion to dismiss,

petitioners’ two motions for summary judgment, petitioners’

motion for judicial notice in support of their motion for summary

judgment, and petitioners’ motion for leave to file an amended

complaint. Upon consideration of the motions, the responses and

replies thereto, the applicable law, the entire record, and for

the reasons set forth below, the respondent’s motion to dismiss

the action is GRANTED, petitioners’ motions for summary judgment

are DENIED, petitioners’ motions for judicial notice in support

of their motion for summary judgment is DENIED, and petitioners’

motion for leave to file an amended complaint is DENIED.

I. BACKGROUND

Petitioners describe themselves as “Clayton Utterback, Ryan

Kirk, James Utterback who use various UCC ALPHA Trade names, i.e.

CLAYTON T. UTTERBACK and other designations to help identify financial accounts, interests, and for other purposes.” Pet’rs’

Proposed Sec. Am. Compl. ¶ 2. On November 11, 2009, they filed a

petition titled “Petition for Writ of Mandamus to Compel

Performance for Accounting, Account Stated, Unjust Enrichment and

Specific Performance and Probate the Estate,” in which they named

Timothy Geithner, Queen Elizabeth II, and “Does 1 through 50" as

respondents. In response to a motion for a more definite

statement filed by Mr. Geithner, which the Court granted on

February 22, 2010, petitioners filed an Amended Complaint on May

28, 2010, identifying only Mr. Geithner as a respondent. In

their Amended Complaint, petitioners list numerous purported

causes of action including “extension of credit,” “money loaned,”

breach of contract, breach of trust, negligence, conversion,

unjust enrichment, accounting, constructive trust, an action “for

Appoint [sic] Special Master,” declaratory judgment, declaratory

relief, summary judgment on a Uniform Commercial Code claim, and

an action to “remove blocked account status from petitioners’

accounts.” Am. Compl. ¶¶ 76-102.

Respondent filed a motion to dismiss on June 10, 2010

pursuant to Federal Rules of Civil Procedure 8(a), 10(b), and

12(b)(6). Petitioners filed a motion for summary judgment on

2 July 6, 2010. Both motions are now ripe for review by this

Court.1

II. STANDARD OF REVIEW

Rule 8(a) requires that “[a] pleading that states a claim

for relief must contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief. . . .”

Fed. R. Civ. P. 8(a)(2). The pleadings of pro se parties, such

as petitioners in the instant action, are “to be liberally

construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus,

(2007)

(internal citations and quotation marks omitted). Nevertheless,

“although a court will read a pro se plaintiff’s complaint

liberally,” a pro se complaint, no less than any other complaint,

“must present a claim on which the Court can grant relief.”

Chandler v. Roche,

(D.D.C. 2002) (citing

Crisafi v. Holland,

(D.C. Cir. 1981)).

A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of a complaint. Browning v. Clinton,

(D.C. Cir. 2002). A complaint must present “enough facts to

state a claim to relief that is plausible on its face” and “above

the speculative level.” Bell Atlantic Corp. v. Twombly,

In response to respondent’s motion to dismiss, petitioners filed a motion to strike the motion to dismiss. The Court treats this filing as an opposition to the motion to dismiss.

3 544 (2007). In considering a 12(b)(6) motion, the Court must

construe the complaint “‘liberally in the plaintiff’s favor,’

‘accept[ing] as true all of the factual allegations’” alleged in

the complaint. Aktieselskabet AF 21 November 2001 v. Fame Jeans

Inc.,

(D.C. Cir. 2008) (alteration in original)

(quoting Kassem v. Wash. Hosp. Ctr.,

(D.C. Cir.

2008)). Indeed, a plaintiff is entitled to “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v.

MCI Commc’ns Corp.,

(D.C. Cir. 1994). A court need

not, however, “accept inferences drawn by plaintiffs if such

inferences are unsupported by the facts set out in the complaint.

Nor must [a] court accept legal conclusions cast in the form of

factual allegations.”

“Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do

not suffice.” Ashcroft v. Iqbal,

(2009).

“[O]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.”

Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Waterhouse v. District of Columbia,

(D.C. Cir. 2002). A fact is genuine “‘if the evidence is

such that a reasonable jury could return a verdict for the

4 nonmoving party.’” Steele v. Schafer,

(D.C.

Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)). Facts are material if they “‘might affect the

outcome of the suit under the governing law.’”

(quoting

Anderson,

). The party seeking summary judgment

bears the initial burden of demonstrating an absence of genuine

issues of material fact. Celotex,

. In

determining whether a genuine issue of material facts exists, the

Court must view all facts in the light most favorable to the

nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp.,

(1986); Keyes v. District of Columbia,

(D.C. Cir. 2004). “When a motion for summary

judgment is properly made and supported, an opposing party may

not rely merely on allegations or denials in its own pleading;

rather, its response must . . . set out specific facts showing a

genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); see also

Celotex,

.

III. ANALYSIS

A. Respondent’s Motion to Dismiss

Having reviewed the Amended Complaint filed by petitioners,

the Court concludes that petitioners have wholly failed to

provide the “short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the defendant

fair notice of what the . . . claim is and the grounds upon which

5 it rests.” Twombly,

(internal citations omitted).

Instead, despite over a dozen lengthy filings by petitioners, the

basis for petitioners’ action against respondent remains somewhat

of a mystery. As best the Court can ascertain, petitioners seek

billions of dollars in compensation from Mr. Geithner and the

Treasury Department based on allegations that petitioners had a

role in the 2008 Emergency Economic Stabilization Act.

Petitioners allege that:

The Federal Reserve Bank increase of FED profits in 2009 amounted to greater than $52.1 Billion dollars, is [sic] because of special work product program developed by Petitioners, intervening to prevent the collapse of the United States Government, putting a floor under U.S. economy, . . . re-fund the banking system, protect the FED, and provide ready [sic] available funds for the Treasury to operate its 2010 budget.

Without the work provided by Petitioners, what would the Treasury Department have for funds to date at this point?

What would be the results of a cascading system failure leading to total collapse cost to restart, if possible at all? . . . The Respondent United States Treasury Department is holding fees, dividends, earnings, and other unknown interests of Petitioners in the amount of $1.2 Billion in service fees generated by Petitioners [sic] work product which is subject for review.

The United States Treasury Department is holding $46.1 Billion Dollars provided as “interest paid” by the Federal Reserve System for Petitioner’s work product.

Am. Compl. ¶¶ 66-70.

The remainder of the Amended Complaint contains equally

disjointed, mostly incoherent, allegations. In addition to

6 various allegations regarding “special work product” of an

unspecified nature, petitioners also make unexplained references

to money allegedly loaned or transferred by petitioners to

respondent. See, e.g., Am. Compl. ¶ 44 (“On or about the date of

September 29, 2008, Petitioners entered into an [sic] security

agreement and contracted for services in form and substances

[sic] sufficient to be accepted for deposit with the Respondents

office the Department of the Treasury . . . and did contract with

Petitioners in relation to 15 U.S.C. Rules for securities and

safe keeping of funds for later transfer and ultimate

distribution of portion of Credit returned. . . .”); Am. Compl.

¶ 77 (“Petitioners state the fact that Respondent accepted Money

loaned by processing instruments from Petitioners and has not

accounted for the interest and dividends due Petitioners for the

money loaned.”). Petitioners, however, fail to identify any

actual security agreements or contracts between petitioners and

respondent.

Petitioners also allege in the Amended Complaint that

injunctive relief is appropriate because “[i]njury to Petitioners

by injection of large or small size implants are objectionable

and repugnant to Petitioners . . . [and] the injunction

preventing the implantation would not substantially interfere

with public policy. That using a large (huge) needle and

inserting a computer bio chip into the arm, hand, or other parts

7 of the body penetrating the skin, resulting in a puncture wound

is an injury to the tissue which Petitioners consider another

large breach of trust.” Am. Compl. ¶¶ 122-123.

The Court concludes that petitioners allegations fail to

present a claim on which the Court can grant relief or that would

suffice to give the defendant fair notice of what the claim is

and the grounds upon which it rests. See Iqbal,

(“A pleading that offers labels and conclusions or a

formulaic recitation of the elements of a cause of action will

not do. Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.” (internal

quotations omitted)). Accordingly, respondent’s motion to

dismiss the Amended Complaint is GRANTED, and petitioners’

motions for summary judgment are DENIED. Petitioners request for

judicial notice in support of their summary judgment motion is

also DENIED.

B. Petitioners’ Motion for Leave to Amend Complaint

Petitioners filed a motion for leave to amend their

complaint on August 16, 2010. The proposed second amended

complaint is titled “Aggrieved Party’s First Amended In Rem

Complaint Action for Declaratory and Other Relief.”2

2 Although petitioners already filed an Amended Complaint, petitioners sought leave to file a “First Amended Complaint.” To avoid confusion, the Court will refer to this new filing as the proposed second amended complaint.

8 Rule 15(a) of the Federal Rules of Civil Procedure provides

that a party may amend its pleading once “as a matter of course”

within certain time frames not relevant to the instant action,

and “[i]n all other cases a party may amend its pleading only

with the opposing party’s written consent or the court’s leave.”

Fed. R. Civ. P. 15(a). “The court should freely give leave when

justice so requires.” Fed. R. Civ. P. 15(a)(2). It is

appropriate for a Court to grant leave to amend unless there is

“undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficience by amendments

previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, [or] futility of

amendment.” Foman v. Davis,

(1962) (internal

quotation marks omitted). Where an amendment would not survive a

motion to dismiss, a court may deny leave to amend based on

futility. James Madison Ltd. v. Ludwig,

(D.C.

Cir. 1994).

The proposed second amended complaint is no more coherent

than the first one. It consists of 70 pages of additional,

rambling assertions on various topics that fail to shed any

further light on the basis of petitioners’ claims. See, e.g.,

Second Am. Compl. ¶14-15 (“Aggrieved parties states [sic] a claim

upon which relief can be granted and has expressly demanded the

audit on the accounting owed by respondent to Aggrieved parties.

9 Aggrieved parties transactions may related to Bookkeeping Only

Entry data media storage held by respondent or his

Agents. . . .”); Second Am. Compl. ¶ 90 (“Aggrieved parties state

the fact Respondent used money loaned by processing instruments

from Aggrieved parties, but has not accounted for the interest,

dividends, fees, discounted principle credit, other benefits

which are ‘hidden’ and ‘secreted away’ by respondent’s operatives

who work outside the law (dishonor), towards opposite ends of

justice to the detriment of the beneficiaries . . . .”). Nor

does petitioners’ motion for leave to amend provide the Court

with any understanding of what petitioners’ believe to be the

reason an amendment is necessary. Instead, the motion consists

of little more than a garbled recitation of petitioners’

understanding of various legal standards.

The proposed second amended complaint, like the first, fails

to provide a statement of a claim that would entitle the

petitioners to relief, and therefore would not survive a motion

to dismiss. Accordingly, petitioners’ motion for leave to file

the proposed second amended complaint is DENIED.

IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that

respondent’s motion to dismiss is GRANTED; petitioners’ motions

for summary judgment are DENIED; petitioners’ motion for judicial

notice in support of their motion for summary judgment is DENIED;

10 and petitioners’ motion for leave to file an amended complaint is

DENIED. An appropriate Order accompanies this Memorandum

Opinion.

Signed: Emmet G. Sullivan United States District Judge December 9, 2010

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