Feick v. Brutsche Family Revocable Trust

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 CHARLES C. FEICK, CASE NO. 3:24-CV-5587-TMC 11 Plaintiff, v. ORDER RENOTING APPLICATION 12 TO PROCEED IN FORMA PAUPERIS BRUTSCHE FAMILY RECOVABLE AND DIRECTING AMENDED 13 TRUST, et al., COMPLAINT BE FILED 14 Defendants.

15 The District Court has referred Plaintiff Charles C. Feick’s pending Application to Proceed In Forma Pauperis (“IFP”) and proposed complaint to United States Magistrate Judge David W. Christel pursuant to Amended General Order 11-22. On July 22, 2024, Plaintiff initiated this action by filing a proposed complaint and an application to proceed in forma pauperis (“IFP”), that is, without paying the filing fee for a civil case. See Dkts. 1; 1-3.

20 Standard for Granting Application for IFP. The district court may permit indigent litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad discretion in denying an application to proceed IFP.

23 Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963).

ORDER RENOTING APPLICATION TO 1 Plaintiff’s Application to Proceed IFP. Plaintiff states that he receives monthly social security benefits in the amount of $1,263.00. Dkt. 1. He states he has $25.00 in cash and negative amount of $590.00 in his bank accounts. Id. at p. 2. Plaintiff has no assets and has $1,263.00 in monthly expenses. Id. 5 Review of the Complaint. Because Plaintiff filed this proposed complaint pro se, the Court has construed the pleadings liberally and has afforded Plaintiff the benefit of any doubt.

7 See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). In the proposed complaint, Plaintiff appears to allege Defendants Brutsche Family Revocable Trust, Steve Krohn, Resource Transition Consultants, LLc, and Kevin Hanchett interfered with his business and are liable under the civil RICO statute. Dkt. 1-2.

11 Sua Sponte Dismissal – Standard on Rule 12 (b). Pursuant to Fed. R. Civ. P. 12(b), a case may be dismissed for “(1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.” Under Fed. R. Civ. P. 12b)(6), a federal court may dismiss a case sua sponte when it is clear that the plaintiff has not stated a claim upon which relief may be granted. See Omar v. Sea- Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12 (b)(6). Such a dismissal may be made without notice where the claimant cannot possibly win relief.”). See also Mallard v. United States Dist. Court, 490 U.S. 296, 307- 08 (1989) (there is little doubt a federal court would have the power to dismiss frivolous complaint sua sponte, even in absence of an express statutory provision). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

ORDER RENOTING APPLICATION TO 1 Analysis of Plaintiffs’ Claims. Plaintiff asserts claims for liability under the civil RICO statute. First, a civil RICO claim is subject to the heightened particularity requirements of FRCP 9(b). Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-66 (9th Cir. 2004) (citing, quoting, and following Alan Neuman Prods., Inc. v. Albright, 862 F.3d 1388, 1392 (9th Cir. 1989)). This requires a complaint to “state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.” Edwards, 356 F.3d at 1066; see also Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991) (plaintiff must set forth in the complaint “detail with particularity the time, place, and manner of each act of fraud, plus the role of each defendant in each scheme”). Plaintiff’s proposed complaint does not have the requisite degree of particularity necessary to sustain a civil RICO claim. See Dkt. 1-2. Rather, Plaintiff has provided a long narrative of the history of this case and instances of the RICO violations, but has not adequately explained the specific content of the false representations. This is not sufficient to meet the heightened requirements of Rule 9(b).

14 To state a claim under RICO, a claimant must allege the defendant (1) participated in (2) an enterprise (3) through a pattern (4) of racketeering activity that (5) proximately caused the claimant’s harm. 18 U.S.C. § 1962(c); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496-97 (1985); Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014).

18 To show the existence of an enterprise under the second element, a plaintiff must plead that the enterprise has (A) a common purpose, (B) a structure or organization, and (C) longevity necessary to accomplish the purpose. Boyle v. United States, 556 U.S. 938, 946 (2009).

21 “Racketeering activity” is defined as (a) “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled ORDER RENOTING APPLICATION TO substance or listed chemical” that would constitute a felony, or (b) an act which is federally “indictable under” a number of federal laws. 18 U.S.C. § 1961.

3 As alleged, nothing that Plaintiff asserts occurred after July 22, 2020 (four years before the commencement of this action) rises to the level of “racketeering activity” that could be compensable under civil RICO. The proposed complaint was devoid of any allegations that rise to the level of racketeering activity. Further, it is not clear that Plaintiff has successful pled facts showing an enterprise exists. Rather, Plaintiff’s allegations are a lengthy recitation of a chronology of events. Accordingly, Plaintiff has failed to state a RICO claim.

9 Plaintiff also alleges Defendants are liable under 18 U.S.C. §§ 1341 & 1343 for mail fraud. Dkt. 1-2 Plaintiff seeks civil liability under criminal statutes. This is improper and the mail fraud claims fail as a matter of law.

12 Leave to Amend. Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).

15 While the Court finds it unlikely Plaintiff can cure the deficiencies of the proposed complaint, in an abundance of caution, the Court finds Plaintiff should be afforded an opportunity to amend his proposed complaint to try to state a claim. The Court, however, directs Plaintiff to provide a short statement of claims and the factual allegations that support each claim.

19 Decision on Application to Proceed IFP. A district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit. Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998), quoting Tripati v. First Nat'l Bank & Trust, 821 F. 2d 1368, 1370 (9th Cir. 1987). Based upon the above ORDER RENOTING APPLICATION TO analysis of the deficiencies in the proposed complaint, the Court finds it appropriate to re-note Plaintiff’s application to proceed IFP (Dkt. 1) to September 3, 2024.

3 Conclusion. For the above stated reasons, it is hereby ORDERED that: 4 • Plaintiff’s application to proceed IFP (Dkt. 1) is RENOTED to September 3, 2024; and 5 • Plaintiff’s proposed amended complaint, if any, IS DUE on or before September 3, 6 2024. If Plaintiff fails to adequately respond to this Order and file an amended complaint 7 by September 3, 2024, the Court will recommend Plaintiff’s Application to Proceed IFP 8 be denied and this case be dismissed.

9 Dated this 1st day of August, 2024.

A David W. Christel 12 United States Magistrate Judge ORDER RENOTING APPLICATION TO