1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Oliver Complot, No. CV-23-02348-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 JPMorgan Chase Bank,
13 Defendant. 14 15 For the following reasons, the complaint and all other filings by non-attorney Oliver 16 Complot, who is attempting to bring claims pro se on behalf of his assertedly incapacitated 17 wife in a next friend capacity, must be struck. 18 BACKGROUND 19 On October 4, 2023, pro se purported plaintiff Oliver Complot initiated this “equity 20 claim” in Maricopa County Superior Court. (Doc. 1-3 at 4-19.) On what appears to be a 21 standard state court form, in a space labeled “Name of Next Friend,” Complot entered 22 “Oliver Complot: Next friend for the woman aggrieved, Corina Tolamaa.” (Id. at 5.) The 23 complaint—which is a nonlinear hodgepodge of factual allegations, legal conclusions, and 24 contextless statements of law and case citations—does not contain any allegations 25 regarding the relationship between Complot and Ms. Tolamaa. The complaint alleges that 26 in May 2023, Complot “made Corina Tolamaa aware of . . . fraudulent omissions 27 concerning the alleged contract and accounts held by” Defendant JPMorgan Chase Bank 28 (“Chase”). (Id. at 5.) The complaint alleges that Chase “communicated inaccurate 1 information,” presumably about Ms. Tolamaa, and “is liable for invasion of privacy 2 because it had no basis in fact to report anything in the first place and has been fraudulently 3 attempting collection contrary to good faith and equity.” (Id. at 9.) As a result of Chase’s 4 alleged acts, the complaint alleges that Ms. Tolamaa “has been denied credit, her character 5 and reputation have been slandered, her privacy unlawfully invaded, her property . . . used 6 without compensation in Chase’s commercial activities, her time and resources consumed, 7 [and] her mental and emotional well-being severely damaged.” (Id. at 9-10.) The 8 complaint asserts that Complot “believe[s] the wrongdoers are not holders of the alleged 9 debts they attempt to collect from the person Corina P Tolamaa.” (Id. at 12.) The 10 complaint is drafted in the first-person point of view and at times the first-person speaker 11 is clearly Complot, but at other times it seems the first-person pronouns might refer to Ms. 12 Tolamaa, although this is not entirely clear—e.g., “I believe Chase unjustly enriched itself 13 with my negotiable instrument property.” (Id.) In the portion of the form labeled 14 “Applicable Law Supporting Claims,” Complot entered “ARS, Common Law, Equity, 15 God.” (Id. at 17.) The relief sought is “[c]orrecting all records in all systems of the alleged 16 account to ‘Paid in full’ and correctly reporting the same to all third-party reporting 17 agencies,” “[reopening] both accounts with a credit limit of $25,000 each,” “[c]ourt fees,” 18 and “[a]n order for Chase to properly credit all future negotiable instruments to prevent a 19 multiplicity of suits.” (Id. at 18.) The complaint is signed by “Oliver Complot, All Rights 20 Reserved.” (Id. at 19.) Attached to the complaint are, inter alia, bank notices, some of 21 which include the name and address of Ms. Tolamaa (id. at 40, 43, 48), correspondence 22 from Ms. Tolamaa to Chase (id. at 47), and Ms. Tolamaa’s credit report (id. at 50). 23 On October 24, 2023, Complot filed a document entitled “Equity Claim Amended” 24 that is incomprehensible and appears to have been intended as a supplement. (Doc. 1-5.) 25 On November 8, 2023, Chase removed this action, asserting that “federal question 26 jurisdiction exists here” because the complaint asserts claims under federal law, the Truth 27 in Lending Act (“TILA”) and the Fair Credit Billing Act (“FCBA”). (Doc. 1 at 1.) 28 On November 14, 2023, Chase filed a motion to dismiss for lack of subject-matter 1 jurisdiction. (Doc. 5.) Chase asserts that there are no allegations to “support a finding of 2 ‘next friend-standing’ that would enable Complot to prosecute claims on behalf of Ms. 3 Tolamaa” and that, at any rate, “[e]ven if Complot could demonstrate ‘next friend 4 standing,’ he cannot proceed pro se in such capacity.” (Doc. 5 at 1.) 5 On November 16, 2023, this case was reassigned to the undersigned judge. 6 (Doc. 9.) 7 Also on November 16, 2023, Complot filed a response to Chase’s motion to dismiss. 8 (Doc. 10.) Complot asserts that Ms. Tolamaa is his wife, she “suffers mental ailments 9 which hinder her ability to access and prosecute the claims,” and “[e]ven if this claim was 10 not brought under the next friend status[,] it could be brought by Corina Tolamaa and 11 Oliver Complot” because the acts alleged “damaged the both of [them] together.” (Id. at 12 1.) The response includes an “Affidavit of Corina Tolamaa” which does not appear to be 13 signed by Ms. Tolamaa—instead, the following is printed by hand at the end: “Corina 14 Tolamaa, By: Corina Tolamaa – Agent, All Rights Reserved Without Prejudice.” (Id. at 15 5-6.) 16 Also on November 16, 2023, Complot filed a “motion for leave supplement claim” 17 (Doc. 11), lodged a proposed supplement (Doc. 12), filed a “motion for leave to lodge 18 motion for judgment on supplement claim filing” (Doc. 13), and lodged a one-paragraph 19 “motion for judgment on the pleadings” (Doc. 14). 20 On November 17, 2023, Complot filed another “motion for leave supplement claim” 21 (Doc. 16) and lodged a proposed supplement (Doc. 17). 22 Chase did not file a reply in support of its motion to dismiss. 23 DISCUSSION 24 Pursuant to Rule 17, “an incompetent person who does not have a duly appointed 25 representative may sue by a next friend.” Fed. R. Civ. P. 17(c)(2). “In order to establish 26 next-friend standing, the putative next friend must show: (1) that the petitioner is unable to 27 litigate his own cause due to mental incapacity, lack of access to court, or other similar 28 disability; and (2) the next friend has some significant relationship with, and is truly 1 dedicated to the best interests of, the petitioner.” Coal. of Clergy, Laws., & Professors v. 2 Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002). “The burden is on the ‘next friend’ clearly 3 to establish the propriety of his status and thereby justify the jurisdiction of the court.” 4 Whitmore v. Arkansas, 495 U.S. 149, 164 (1990). In that circumstance, “[t]he court must 5 appoint a guardian ad litem—or issue another appropriate order—to protect a minor or 6 incompetent person who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2).1 7 Nevertheless, “[a] ‘next friend’ does not himself become a party to the . . . action in 8 which he participates, but simply pursues the cause on behalf of the [person unable to 9 litigate his or her own cause], who remains the real party in interest.” Whitmore, 495 U.S. 10 at 163. The “action must be prosecuted in the name of the real party in interest.” Fed. R. 11 Civ. P. 17(a)(1). 12 Furthermore, an incapacitated person proceeding via a next friend “would have to 13 be represented by counsel.” Hinojosa v. Warden, SATF/SP, 2023 WL 2874169, *2 (E.D. 14 Cal. 2023). “Although a non-attorney may appear in propria persona in his own behalf, 15 that privilege is personal to him.” C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 16 697 (9th Cir. 1987). A non-attorney “has no authority to appear as an attorney for others 17 than himself” or herself. Id. The Ninth Circuit has explained the rationale for this rule as 18 follows:
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Oliver Complot, No. CV-23-02348-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 JPMorgan Chase Bank,
13 Defendant. 14 15 For the following reasons, the complaint and all other filings by non-attorney Oliver 16 Complot, who is attempting to bring claims pro se on behalf of his assertedly incapacitated 17 wife in a next friend capacity, must be struck. 18 BACKGROUND 19 On October 4, 2023, pro se purported plaintiff Oliver Complot initiated this “equity 20 claim” in Maricopa County Superior Court. (Doc. 1-3 at 4-19.) On what appears to be a 21 standard state court form, in a space labeled “Name of Next Friend,” Complot entered 22 “Oliver Complot: Next friend for the woman aggrieved, Corina Tolamaa.” (Id. at 5.) The 23 complaint—which is a nonlinear hodgepodge of factual allegations, legal conclusions, and 24 contextless statements of law and case citations—does not contain any allegations 25 regarding the relationship between Complot and Ms. Tolamaa. The complaint alleges that 26 in May 2023, Complot “made Corina Tolamaa aware of . . . fraudulent omissions 27 concerning the alleged contract and accounts held by” Defendant JPMorgan Chase Bank 28 (“Chase”). (Id. at 5.) The complaint alleges that Chase “communicated inaccurate 1 information,” presumably about Ms. Tolamaa, and “is liable for invasion of privacy 2 because it had no basis in fact to report anything in the first place and has been fraudulently 3 attempting collection contrary to good faith and equity.” (Id. at 9.) As a result of Chase’s 4 alleged acts, the complaint alleges that Ms. Tolamaa “has been denied credit, her character 5 and reputation have been slandered, her privacy unlawfully invaded, her property . . . used 6 without compensation in Chase’s commercial activities, her time and resources consumed, 7 [and] her mental and emotional well-being severely damaged.” (Id. at 9-10.) The 8 complaint asserts that Complot “believe[s] the wrongdoers are not holders of the alleged 9 debts they attempt to collect from the person Corina P Tolamaa.” (Id. at 12.) The 10 complaint is drafted in the first-person point of view and at times the first-person speaker 11 is clearly Complot, but at other times it seems the first-person pronouns might refer to Ms. 12 Tolamaa, although this is not entirely clear—e.g., “I believe Chase unjustly enriched itself 13 with my negotiable instrument property.” (Id.) In the portion of the form labeled 14 “Applicable Law Supporting Claims,” Complot entered “ARS, Common Law, Equity, 15 God.” (Id. at 17.) The relief sought is “[c]orrecting all records in all systems of the alleged 16 account to ‘Paid in full’ and correctly reporting the same to all third-party reporting 17 agencies,” “[reopening] both accounts with a credit limit of $25,000 each,” “[c]ourt fees,” 18 and “[a]n order for Chase to properly credit all future negotiable instruments to prevent a 19 multiplicity of suits.” (Id. at 18.) The complaint is signed by “Oliver Complot, All Rights 20 Reserved.” (Id. at 19.) Attached to the complaint are, inter alia, bank notices, some of 21 which include the name and address of Ms. Tolamaa (id. at 40, 43, 48), correspondence 22 from Ms. Tolamaa to Chase (id. at 47), and Ms. Tolamaa’s credit report (id. at 50). 23 On October 24, 2023, Complot filed a document entitled “Equity Claim Amended” 24 that is incomprehensible and appears to have been intended as a supplement. (Doc. 1-5.) 25 On November 8, 2023, Chase removed this action, asserting that “federal question 26 jurisdiction exists here” because the complaint asserts claims under federal law, the Truth 27 in Lending Act (“TILA”) and the Fair Credit Billing Act (“FCBA”). (Doc. 1 at 1.) 28 On November 14, 2023, Chase filed a motion to dismiss for lack of subject-matter 1 jurisdiction. (Doc. 5.) Chase asserts that there are no allegations to “support a finding of 2 ‘next friend-standing’ that would enable Complot to prosecute claims on behalf of Ms. 3 Tolamaa” and that, at any rate, “[e]ven if Complot could demonstrate ‘next friend 4 standing,’ he cannot proceed pro se in such capacity.” (Doc. 5 at 1.) 5 On November 16, 2023, this case was reassigned to the undersigned judge. 6 (Doc. 9.) 7 Also on November 16, 2023, Complot filed a response to Chase’s motion to dismiss. 8 (Doc. 10.) Complot asserts that Ms. Tolamaa is his wife, she “suffers mental ailments 9 which hinder her ability to access and prosecute the claims,” and “[e]ven if this claim was 10 not brought under the next friend status[,] it could be brought by Corina Tolamaa and 11 Oliver Complot” because the acts alleged “damaged the both of [them] together.” (Id. at 12 1.) The response includes an “Affidavit of Corina Tolamaa” which does not appear to be 13 signed by Ms. Tolamaa—instead, the following is printed by hand at the end: “Corina 14 Tolamaa, By: Corina Tolamaa – Agent, All Rights Reserved Without Prejudice.” (Id. at 15 5-6.) 16 Also on November 16, 2023, Complot filed a “motion for leave supplement claim” 17 (Doc. 11), lodged a proposed supplement (Doc. 12), filed a “motion for leave to lodge 18 motion for judgment on supplement claim filing” (Doc. 13), and lodged a one-paragraph 19 “motion for judgment on the pleadings” (Doc. 14). 20 On November 17, 2023, Complot filed another “motion for leave supplement claim” 21 (Doc. 16) and lodged a proposed supplement (Doc. 17). 22 Chase did not file a reply in support of its motion to dismiss. 23 DISCUSSION 24 Pursuant to Rule 17, “an incompetent person who does not have a duly appointed 25 representative may sue by a next friend.” Fed. R. Civ. P. 17(c)(2). “In order to establish 26 next-friend standing, the putative next friend must show: (1) that the petitioner is unable to 27 litigate his own cause due to mental incapacity, lack of access to court, or other similar 28 disability; and (2) the next friend has some significant relationship with, and is truly 1 dedicated to the best interests of, the petitioner.” Coal. of Clergy, Laws., & Professors v. 2 Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002). “The burden is on the ‘next friend’ clearly 3 to establish the propriety of his status and thereby justify the jurisdiction of the court.” 4 Whitmore v. Arkansas, 495 U.S. 149, 164 (1990). In that circumstance, “[t]he court must 5 appoint a guardian ad litem—or issue another appropriate order—to protect a minor or 6 incompetent person who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2).1 7 Nevertheless, “[a] ‘next friend’ does not himself become a party to the . . . action in 8 which he participates, but simply pursues the cause on behalf of the [person unable to 9 litigate his or her own cause], who remains the real party in interest.” Whitmore, 495 U.S. 10 at 163. The “action must be prosecuted in the name of the real party in interest.” Fed. R. 11 Civ. P. 17(a)(1). 12 Furthermore, an incapacitated person proceeding via a next friend “would have to 13 be represented by counsel.” Hinojosa v. Warden, SATF/SP, 2023 WL 2874169, *2 (E.D. 14 Cal. 2023). “Although a non-attorney may appear in propria persona in his own behalf, 15 that privilege is personal to him.” C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 16 697 (9th Cir. 1987). A non-attorney “has no authority to appear as an attorney for others 17 than himself” or herself. Id. The Ninth Circuit has explained the rationale for this rule as 18 follows:
19 The reciprocal relation between the bar and the bench permits an exception only for a person acting personally. A federal court rightly expects a lawyer 20 to represent a litigant. By its supervision of the bar and through its reliance on the lawyers before it, the court is enabled to function. Professional 21 competence and professional responsibility are the sine qua non of federal litigation and effective judicial response. 22 23 Id. at 698. 24 1 “Ordinarily, when a substantial question exists regarding the mental competence of 25 a party proceeding pro se, the proper procedure is for the district court to conduct a hearing to determine competence, so a guardian ad litem can be appointed, if necessary. . . . [A] 26 district court has broad discretion to fashion an appropriate safeguard that will protect an incompetent person’s interests.” Harris v. Mangum, 863 F.3d 1133, 1138 (9th Cir. 2017). 27 “Although the district court has discretion to craft an appropriate remedy to protect the incompetent person, the court may not use the Rule as a vehicle for dismissing claims or 28 for allowing the interests of an incompetent litigant to go completely unprotected.” Davis v. Walker, 745 F.3d 1303, 1310 (9th Cir. 2014). 1 “This rule applies even when a non-lawyer seeks to represent a family member who 2 is a minor or incompetent.” Rosales v. Idaho Dep’t of Health & Welfare, 2022 WL 3 17749262, *1 (9th Cir. 2022). See also Johns v. Cnty. of San Diego, 114 F.3d 874, 876-77 4 (9th Cir. 1997) (“It goes without saying that it is not in the interest of minors or 5 incompetents that they be represented by non-attorneys. Where they have claims that 6 require adjudication, they are entitled to trained legal assistance so their rights may be fully 7 protected.”) (citation omitted). Thus, in an action in which the sole plaintiff is incapacitated 8 and cannot proceed pro se, the plaintiff must be represented by competent counsel, or 9 alternatively, the action must be dismissed without prejudice. Johns, 114 F.3d at 877. 10 Because Ms. Tolamaa cannot be represented by her husband, who is a non-attorney, 11 the complaint filed by Complot must be struck, along with all of Complot’s other filings in 12 this action. The Court will not consider any of Chase’s other arguments regarding 13 dismissal at this time because a complaint filed by a person who had no authority to file it 14 should not be considered in any regard, and Ms. Tolamaa is entitled to “trained legal 15 assistance” before any further determination can be made on any point of legal 16 significance. Id. at 877. Because the complaint shall be struck pursuant to this order, 17 nothing remains to be “dismissed,” and therefore Chase’s motion to dismiss is denied as 18 moot. 19 Ms. Tolamaa may file an amended complaint by January 5, 2024. Because it is 20 appears that Ms. Tolamaa lacks the capacity to proceed pro se, the amended complaint 21 must be filed by competent counsel. If Ms. Tolamaa fails to retain competent counsel and 22 file an amended complaint by this deadline, Ms. Tolamaa’s claims will be dismissed 23 without prejudice without further notice.2
24 2 Under the circumstances here, where the (now struck) complaint contains no allegations regarding Ms. Tolamaa’s incapacity and the only indication that she might be 25 incapacitated is Complot’s assertion in his (now struck) response to Chase’s motion to dismiss that she “suffers mental ailments which hinder her ability to access and prosecute 26 the claims” (Doc. 10 at 1), and considering Complot’s status as a serial litigant who has brought some wild claims (see, e.g., Complot v. Absolute Resolution Investments LLC et 27 al, 2:23-cv-01945-DWL, Doc. 10, sua sponte dismissing action without leave to amend because Complot’s “displeasure regarding his experience as a defendant in a state civil 28 proceeding does not provide grounds for him to sue, in federal court, his opponent, opposing counsel, the presiding judge, and the State of Arizona”), the Court will not order 1 Accordingly, 2 IT IS ORDERED that the complaint (Doc. 1), Complot’s three pending motions 3|| (Docs. 11, 13, 16), and all other filings by Complot are struck. 4 IT IS FURTHER ORDERED that Chase’s motion to dismiss (Doc. 5) is denied 5 || as moot. 6 IT IS FURTHER ORDERED that Ms. Tolamaa (via a next friend, if she is incompetent and this can be demonstrated) may file an amended complaint via competent 8 || counsel by January 5, 2024. 9 IT IS FURTHER ORDERED that if Ms. Tolamaa fails to file an amended || complaint in her own name via competent counsel by January 5, 2024, the Clerk of Court shall terminate this action. 12 Dated this 28th day of November, 2023. 13 14 Lm ee” 15 f CC —— Dominic W. Lanza 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 further inquiry into Ms. Tolamaa’s competency at this time. If Ms. Tolamaa retains counsel 28 (with the assistance of a next friend) and files’a complaint that alleges her incompetence, a hearing may be necessary at that time.
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