Bey v. Dimon ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KIRK BEY, Case No. 19-cv-07122-PJH 8 Plaintiff, 9 v. ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE 10 JAMES DIMON, et al., Re: Dkt. No. 12 11 Defendants. 12 13 Defendant JP Morgan Chase & Co.’s (“defendant JP Morgan Chase”) and JP 14 Morgan Chase Bank N.A.’s chief executive officer, James Dimond (“defendant Dimond”) 15 (collectively, “defendants”),1 motion to dismiss plaintiff Kirk Bey’s (“plaintiff”) complaint 16 came on for hearing before this court on January 15, 2020. Plaintiff appeared pro se. 17 Defendants appeared through their counsel, Michael Gonzalez. Having read the papers 18 filed by the parties and carefully considered their arguments and the relevant legal 19 authority, and good cause appearing, the court hereby GRANTS defendants’ motion 20 WITH PREJUDICE for the following reasons. 21 In his complaint, plaintiff alleges various civil and criminal claims against 22 defendants, including for fraud, refusal to acknowledge entitlement to property, and 23 violations of Title 18 U.S.C. § 1962 (Racketeer Influenced and Corrupt Organization 24 25 1 Technically, JP Morgan Chase Bank, N.A. filed the instant motion to dismiss on grounds that plaintiff actually intended to sue it (the bank’s national association), as opposed to 26 the two named defendants, given that “[t]he allegations appear to relate to plaintiff’s mortgage” and no allegations were directed at defendant Dimond personally. Dkt. 12 at 1 27 n.1. Plaintiff did not contest JP Morgan Chase Bank, N.A.’s assertion of mistaken identity 1 (“RICO”)), § 153 (embezzlement), and §§ 241-242 (conspiracy and deprivation of rights). 2 Dkt. 1 (Compl.) at 3-5, 7. All of plaintiff’s claims arise from defendants’ filing an 3 “illegitimate claim” against plaintiff’s “property/estate suggesting” that he is a “debtor” of a 4 mortgage agreement entered into by his “former artificial entity” (i.e., his former name, 5 Kirk Eugene Nervis) concerning certain real property in Oakland, California where plaintiff 6 lives. Id. at 3-4. Plaintiff alleges that as an “Aboriginal Moor” with a “birthright entitlement” 7 to his “own land/estate,” he “liened” his prior entity (Kirk Eugene Nervis) and its 8 “property/estate” and then conveyed such property under his “Moor Nation Trust.” Id. at 9 4. According to plaintiff, because of that purported conveyance, he is “not a debtor on 10 [his] own land/estate.” Id. As a result, plaintiff alleges, defendant JP Morgan Chase’s 11 attempt to involve itself in the subject property (apparently by forcing the property’s sale, 12 Dkt. 19 at 2) or otherwise require him to use “unlawful” fiat (the United States Dollar) to 13 fulfill the mortgage agreement’s obligations constitutes some combination of fraud, 14 embezzlement, and conspiracy to deprive plaintiff of his rights. Compl. at 4. 15 Here, the court concludes that plaintiff fails to state a claim. As an initial matter, 16 plaintiff fails to set forth any of the underlying elements to any of his claims—much less 17 allege sufficiently specific facts in satisfaction of Rule 8 or Rule 9(b)’s pleading 18 requirements. In their motion, defendants enumerated numerous such factual 19 deficiencies, Dkt. 12 at 5-7, which plaintiff failed to explain (or even address) in his 20 belated opposition, Dkt. 19. Further, plaintiff’s attempt to sue defendants under Title 18 21 U.S.C. § 153 and §§ 241, 242 separately fails because those sections are criminal in 22 nature, which, as a general matter, do not provide for civil liability. Aldabe v. Aldabe, 616 23 F.2d 1089, 1092 (9th Cir. 1980) (“Appellant also claimed relief under 18 U.S.C. §§ 241 24 and 242. These criminal provisions, however, provide no basis for civil liability.”). 25 Most fatal, though, plaintiff’s claims rests upon the theory that—because of his 26 alleged status as a Moor—he somehow owns the property or is otherwise immune from 27 1 generally applicable laws.2 Aside from a citation to the treaty provision detailed at Article 2 VI of the United States Constitution, plaintiff failed to proffer any authority in support of 3 this theory or otherwise explain why the Constitution’s treaty provision confers him with 4 ownership of the subject property. In any event, courts reject any argument that one’s 5 status as a Moor makes him or her a sovereign citizen who is immune from otherwise 6 generally applicable law. Bey v. State, 847 F.3d 559, 561 (7th Cir. 2017) (“Nor is there 7 any basis for his contention that he is not required to pay any taxes because being a 8 Moor makes him a sovereign citizen; he may be a Moor but—we emphasize, in the hope 9 of staving off future such frivolous litigation—he is not a sovereign citizen. He is a U.S. 10 citizen and therefore unlike foreign diplomats has no immunity from U.S. law.”) (emphasis 11 in the original); United States v. Coleman, 871 F.3d 470, 476 (6th Cir. 2017) (rejecting 12 argument similar to the “meritless rhetoric frequently espoused by tax protesters, 13 sovereign citizens, and self-proclaimed Moorish-Americans.”); Bey v. Gascon, 2019 WL 14 5191012, at *5 (N.D. Cal. Oct. 15, 2019) (rejecting argument that a court lacked 15 jurisdiction under a “‘sovereign citizen’ theory because [the party] considers himself a 16 ‘Moorish-American National.’”); Bey v. Peltier, 2018 WL 1858189, at *3 (C.D. Cal. Jan. 17 25, 2018), report and recommendation adopted, 2018 WL 851291 (C.D. Cal. Feb. 12, 18 2018) (“Because all of Plaintiff’s claims stem from her frivolous assertions regarding her 19 sovereign status and amendment would therefore be futile, the Complaint must be 20 dismissed with prejudice.”). Without that theory, plaintiff has no basis to claim that the 21 conduct by defendants that he primarily relies upon to substantiate his claims—namely, 22 defendant JP Morgan Chase’s maintaining or enforcing any rights it may have to the 23 property under the mortgage agreement, Compl. at 3-4, including selling the property, 24 Dkt. 19 at 2—is unlawful. 25 26 2 Dkt. 19 at 2 (“I also accepted alliodial economic liberty of my mortgage trust deed 27 conveyance and [sic] broke all contracts with any corporate entities who may have 1 CONCLUSION 2 For the above reasons, the court GRANTS defendants’ motion to dismiss. 3 Because plaintiff failed to identify any basis upon which he could amend his complaint to 4 state cognizable claims, the court grants the dismissal WITH PREJUDICE. The court 5 DENIES defendants’ requests for judicial notice (as well as any implied by the 6 attachments to plaintiff’s opposition) as unnecessary to resolve this motion. 7 IT IS SO ORDERED. 8 Dated: March 2, 2020 9 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27