1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 David E Kelly, No. CV-25-02376-PHX-MTL
10 Plaintiff, ORDER
11 v.
12 Raymond Cedric Young, et al.,
13 Defendants. 14 15 Before the Court is pro se Plaintiff David Kelly’s Amended Complaint (Doc. 19), 16 Motion to Retransfer Venue (Doc. 32), Motion to Direct the U.S. Marshals Service to Serve 17 All Defendants (Doc. 40), and several miscellaneous motions (Docs. 24, 28, 37, 39). 18 I. FACTUAL BACKGROUND 19 This case centers around a photograph titled, “Remembering September 11, 2001.” 20 (Doc. 19 ¶ 18.) Mr. Kelly alleges he is the sole creator of this image and provides its 21 registration with the United States Copyright Office, which lists Mr. Kelly as the claimant. 22 (Id. ¶ 32.) According to the complaint, Defendant Raymond Young “[i]n or around 2002, 23 . . . unlawfully created an altered digital copy of the image and began printing and 24 distributing counterfeit version for personal profit.” (Id. ¶ 19.) Mr. Kelly alleges that 25 “[o]ver 300,000 counterfeit units were sold between 2002 and 2025, including through 26 eBay, Field of Dreams retail outlets, military base commissaries, and Sheriff Joe Arpaio’s 27 charity auctions in Arizona.” (Id. ¶ 20) 28 Mr. Kelly made efforts to report Mr. Young’s “fraud, criminal activity, and threats” 1 to various authorities. (Id. ¶ 27.) Mr. Kelly alleges that these authorities, including various 2 police departments, the Federal Bureau of Investigation, the Federal Trade Commission, 3 the Arizona Attorney General, and the Phoenix District Attorney, provided no meaningful 4 protection. (Id.) 5 II. PROCEDURAL HISTORY 6 Prior to explaining what has happened in this case, it is worth noting what happened 7 before it. Mr. Kelly previously brought two cases related to the photograph. The first was 8 a Maricopa County Superior Court case, case number CV2006-091932, addressing a 9 breach of contract claim “based specifically on the approximately 50,000 counterfeit prints 10 and 250 counterfeit banners initially printed and distributed by Defendant Raymond Cedric 11 Young.” (Id. ¶ 29.) Plaintiff argues the alleged counterfeit units forming the basis of the 12 Amended Complaint “were not included in the damages award under the breach of contract 13 claim . . . [and] represent separate and distinct acts of infringement and fraud.” (Id. ¶ 30.) 14 The second was brought in federal court in the District of Arizona. See Kelly v. 15 Maricopa Cnty. Sheriff’s Off., No. CV-15-02572-PHX-GMS, 2017 WL 6054675 (D. Ariz. 16 Dec. 7, 2017). In that case, Plaintiff alleged copyright infringement against the Maricopa 17 County Sheriff’s Office and then-Sheriff Joseph Arpaio. Id. at *1. Defendant Maricopa 18 County Sheriff’s Office filed a Motion for Summary Judgment. Id. The court granted the 19 Motion for Summary judgment, finding the alleged infringement prior to December 2012 20 was barred under the statute of limitations and any infringement alleged after December 21 2012 was not “sufficient to withstand summary judgment” as Plaintiff “fail[ed] to create 22 an issue of fact.” Id. at *3. 23 On June 10, 2025, Mr. Kelly initiated the present suit in the Southern District of 24 Indiana. (Doc. 1.) The case was transferred to the District of Arizona. (Doc. 8.) This Court 25 granted Plaintiff’s application to proceed in forma pauperis. (Doc. 14.) Pursuant to 28 26 U.S.C. § 1915(e)(2), this Court screened Mr. Kelly’s complaint and found that it failed to 27 state a legal claim. (Id. at 1, 6.) The Court gave Plaintiff leave to file an amended complaint 28 as to the balance of the claims not dismissed with prejudice. (Id. at 6-7.) Plaintiff filed this 1 Amended Complaint. (Doc. 19.) 2 Mr. Kelly raises three claims in his amended complaint. (Id. ¶¶ 31-45.) Count One 3 alleges copyright infringement under 17 U.S.C. § 501 for the reproduction and sale of the 4 photograph. (Id. ¶¶ 31-35.) Count Two alleges a violation under the Racketeer Influenced 5 and Corrupt Organizations Act (“RICO”) under 18 U.S.C. § 1962(c). (Id. ¶¶ 36-40.) Count 6 Three alleges fraud based on false representations regarding the ownership, licensing, and 7 distribution of the photograph. (Id. at 41-45.) 8 In addition to Mr. Young, the main subject of Mr. Kelly’s allegations, the complaint 9 brings these claims against numerous defendants. (Doc. 19 ¶¶ 10-16.) Mr. Kelly names 10 Defendant Zandrea Young (Woods), Mr. Young’s former spouse and alleged co- 11 participant. (Id. ¶ 10.) Defendant Deja Hicks, Mr. and Ms. Young’s daughter, allegedly 12 received funds from Mr. Young. (Id. ¶ 11.) Mr. Kelly claims Defendant Joe Arpaio, the 13 former Sheriff of Maricopa County, participated in the distribution of counterfeit prints. 14 (Id. ¶ 12.) Defendant Maricopa County Sheriff’s Department allegedly enabled, failed to 15 investigate, or actively obstructed inquiries into the alleged counterfeiting. (Id. ¶ 13.) 16 Defendant Ebay Inc. allegedly facilitated and profited from the sale of counterfeit prints. 17 (Id. ¶ 14.) Defendant United States Army Procurement Division allegedly purchased or 18 authorized purchase of counterfeits. (Id. ¶ 15.) The complaint also contains Doe defendants 19 involved in the distribution, storage, sale, or concealment of counterfeit prints. (Id. ¶ 16.) 20 All counts are brought against all Defendants. (Id. ¶¶ 31-45.) 21 After filing his amended complaint (Doc. 19), Mr. Kelly filed two motions for 22 summary judgment. (Docs. 24, 28.) The first is incomprehensible because of what appears 23 to be an issue with how the typed text appears in the document (Doc. 24), so the Court 24 assumes that the second motion (Doc. 28) is a corrected copy of the motion originally filed. 25 Mr. Kelly filed a Motion for Recusal. (Doc. 18.) While serving in the U.S. 26 Attorney’s Office, the then-presiding Judge Tuchi had received a letter requesting 27 prosecution of Mr. Young. (Id.) When Mr. Kelly produced that letter, Judge Tuchi recused 28 himself, and this case was reassigned to the presiding judge, where the case remains. 1 (Doc. 31.) 2 Mr. Kelly then filed an omnibus motion containing a Motion to Retransfer Venue, 3 Motion for Summary Judgment, and Motion for Order for Forensic Financial and Travel 4 Investigation. (Doc. 32.) Also pending are Mr. Kelly’s Motion for Clerk’s Entry of Default 5 as to All Defendants (Doc. 37), Motion for Default Judgment (Doc. 39), and Motion to 6 Direct the U.S. Marshals Service to Serve All Defendants (Doc. 40). 7 III. VENUE 8 As a threshold matter, this Court first satisfies itself that venue is proper in the 9 District of Arizona. The District Court for the Southern District of Indiana transferred this 10 case to the District of Arizona because the vast majority of events and parties are located 11 in Arizona. (Doc. 8 at 3.) Although the prior court transferred this case based on allegations 12 made in the complaint Mr. Kelly originally filed (Doc. 1), Mr. Kelly’s amended complaint 13 similarly alleges events that took place in Arizona and brings claims against defendants 14 primarily based in Arizona (Doc. 19). This Court therefore adopts the reasoning in the prior 15 order that found venue to be proper in the District of Arizona. (Doc. 8.) 16 The pertinent statute provides as follows: 17 A civil action may be brought in— 18 (1) a judicial district in which any defendant resides, if all defendants 19 are residents of the State in which any defendant resides, if all defendants are residents of the State in which the district is located. 20 21 (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of 22 property that is the subject of the action is situated; or 23 (3) if there is no district in which an action may otherwise be brought 24 as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such 25 action. 26 28 U.S.C. § 1391(b). “The district court of a district in which is filed a case laying venue 27 in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer 28 such case to any district or division in which it could have been brought.” 28 U.S.C. § 1 1406(a). 2 In Mr. Kelly’s Motion to Retransfer Venue, he argues that “[t]he recusal of Judge 3 John J. Tuchi confirms the existence of judicial bias and prejudice in this venue.” (Doc. 32 4 at 2.) He also points to “a documented pattern of judicial misconduct, willful infringement, 5 asset concealment, law enforcement refusals, and direct intimidation.” (Id.) 6 This matter is now before a neutral judge. “Any justice, judge, or magistrate judge 7 of the United States shall disqualify himself in any proceeding in which his impartiality 8 might reasonably be questioned.” 28 U.S. § 455(a). Mr. Kelly makes no showing that calls 9 into question the presiding judge’s impartiality. And in any case, the proper vehicle for 10 raising such questions and requesting appropriate relief from judicial bias would be a 11 motion for recusal pursuant to 28 U.S.C. § 455(a), the provision that addresses a judge’s 12 impartiality. A motion to transfer venue is brought under 28 U.S.C. §§ 1391 and 455(a). 13 As previously stated, Section 1391 explicitly spells out the requirements for proper venue, 14 none of which involve judicial bias. 28 U.S.C. § 1391 Mr. Kelly’s assertions about Judge 15 Tuchi do not justify transferring this case. 16 The Court also finds no “documented pattern of judicial misconduct, willful 17 infringement, asset concealment, law enforcement refusals, and direct intimidation” (Doc. 18 32 at 2). Attached to Mr. Kelly’s motion are screen captures of Mr. Kelly’s uploading of 19 photos from Mr. Young’s Facebook profile to ChatGPT. (Id. at 8-10.) Those screenshots 20 also contain the AI platform’s automated responses, which state, “[w]e can present this as 21 part of a motion or supplement, showing,” among other things, “Concealment of 22 Assets/Income” and “Pattern of Misappropriation.” (Id.) Mr. Kelly’s motion also contains 23 screenshots of the login portal for PACER. (Doc. 32 at 11-14.) These are not sufficient to 24 support Mr. Kelly’s contended “documented pattern,” and these allegations do not bear on 25 whether venue is proper anyway. The Court will deny Mr. Kelly’s Motion to Retransfer 26 Venue (Doc. 32). 27 IV. SCREENING PER 28 U.S.C. § 1915(e)(2) 28 The Court may screen complaints brought in forma pauperis. 28 U.S.C. 1 § 1915(e)(2). The Court must dismiss an action if it is frivolous or malicious, fails to state 2 a claim on which relief may be granted, or seeks monetary relief against a defendant who 3 is immune from such relief. Id. § 1915(e)(2)(B). 4 A pleading must contain a “short and plain statement of the claim showing that the 5 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed 6 factual allegations, “it demands more than an unadorned, the-defendant-unlawfully- 7 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals 8 of the elements of a cause of action, supported by mere conclusory statements, do not 9 suffice.” Id. 10 Further, “a complaint must contain sufficient factual matter, accepted as true, to 11 state a claim to relief that is plausible on its face.” Id (citation modified). A claim is 12 plausible “when the plaintiff pleads factual content that allows the court to draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 14 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 15 specific task that requires the reviewing court to draw on its judicial experience and 16 common sense.” Id. at 679. Thus, although a plaintiff’s specific factual allegations may be 17 consistent with a claim, a court must assess whether there are other “more likely” 18 explanations for a defendant’s conduct. Id. at 681. 19 “A document filed pro se is to be liberally construed, and a pro se complaint, 20 however inartfully pleaded, must be held to less stringent standards than formal pleadings 21 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations 22 omitted); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (directing courts to 23 “continue to construe pro se filings liberally”). If the Court determines that a pleading could 24 be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to 25 amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 26 1127-29 (9th Cir. 2000) (en banc). 27 A. Parties 28 The amended complaint names the People of the United States as an additional 1 plaintiff. (Doc. 19 ¶ 7.) Mr. Kelly has provided no indication he is a lawyer licensed to 2 practice law in any jurisdiction. “A non-lawyer has no authority to appear as an attorney 3 for others than himself.” Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). 4 Mr. Kelly cannot represent the People of the United States. See, e.g., Pectol v. Waikiki 5 Police Dep’t, CIVIL NO. 22-00229 JAO-RT, 2022 WL 1749117, at *2 (D. Haw. May 31, 6 2022) (“Plaintiff also identifies as plaintiffs ‘PEOPLE OF THE UNITED STATES.’ 7 Plaintiff has not indicated that he is an attorney who is licensed to practice law in Hawai’i 8 so he cannot represent others.” (internal citation omitted)). Pursuant to its authority under 9 Federal Rule of Civil Procedure 21, the Court dismisses Plaintiff People of the United 10 States from the amended complaint. 11 In a prior order, this Court dismissed, with prejudice, Mr. Kelly’s claim against 12 Maricopa County Sheriff’s Department because it is not a jural entity subject to suit under 13 Arizona law. (Doc. 14 at 3.) Notwithstanding that order, Plaintiff again names the 14 department as a defendant. (Doc. 19 ¶ 13.) The department is still not a jural entity, so it is 15 dismissed. 16 Similarly, Defendant United States Army Procurement Division may not be sued. 17 “[T]he United States cannot be lawfully sued without its consent.” U.S. v. Lee, 106 U.S. 18 196, 204 (1882). “A waiver of the Federal Government’s sovereign immunity must be 19 unequivocally expressed in statutory text.” U.S. v. Nordic Vill., Inc., 503 U.S. 30, 33-34 20 (1990). The Court is unaware of any statute authorizing the U.S. Army Procurement 21 Division to be sued under the laws applicable to Mr. Kelly’s claims, and Mr. Kelly does 22 not point to such a statute. The United States Army Procurement Division is dismissed. 23 Finally, Mr. Kelly improperly named fictitious defendants, Does 1-116. (Doc. 19 24 ¶ 16.) “There is no provision in the Federal Statutes or Federal Rules of Civil Procedure 25 for use of fictitious parties.” Fifty Associates v. Prudential Ins. Co. of America, 446 F.2d 26 1187, 1191 (9th Cir. 1970) (citation omitted). That is why “‘Doe’ pleading is improper in 27 federal court.” Bogan v. Keene Corp., 852 F.2d 1238, 1239 (9th Cir. 1988). The named 28 Doe defendants are dismissed. 1 B. Count One: Copyright Infringement 2 Mr. Kelly’s copyright infringement claim is subject to the pleading standard under 3 Federal Rule of Civil Procedure 8(a)(2). Chihuly, Inc. v. Kaindl, No. C05-1801-JPD, 2006 4 WL 83462, at *2 (W.D. Wash. Jan. 11, 2006). To state a claim for copyright infringement, 5 a plaintiff must allege “(1) ownership of a valid copyright, and (2) copying of constituent 6 elements of the work that are original.” Woodland v. Hill, 136 F.4th 1199, 1206 (9th Cir. 7 2025) (citation omitted). Mr. Kelly adequately pleads the first prong, ownership of the 8 photograph, since the amended complaint contains his registration with the United States 9 Copyright Office and states that he is the sole creator of the photograph. (Doc. 19 ¶ 32); 17 10 U.S.C. § 410(c) (stating that “[i]n any judicial proceedings the certificate of a registration 11 . . . shall constitute prima facie evidence of the validity of the copyright and of the facts 12 stated in the certificate”). As for the second prong, “[c]opying may be established by 13 showing that the infringer had access to plaintiff’s copyrighted work and that the works at 14 issue are substantially similar in their protected elements.” Cavalier v. Random House, 15 Inc., 297 F.3d 815, 822 (9th Cir. 2002). As explained below, Mr. Kelly has sufficiently 16 plead facts stating a copyright infringement claim against Defendant Raymond Young 17 only. 18 1. Access 19 Proof of access requires “an opportunity to view or to copy plaintiff’s work.” Sid & 20 Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 1172 (C.D. Cal. 2017) 21 (citation omitted). For example, a plaintiff can show access by “(1) establishing a chain of 22 events linking the plaintiff’s work and the defendant’s access, or (2) showing that the 23 plaintiff’s work has been widely disseminated.” Art Attacks Ink, LLC v. MGA Entm’t Inc., 24 581 F.3d 1138, 1143 (9th Cir. 2009). The amended complaint states that Mr. Young 25 “unlawfully created an altered digital copy,” that the original photograph “was later 26 reported stolen from [Mr. Kelly’s] 300-pound safe,” and that “the 300-pound safe stolen 27 by Young’s agents in 2010 from Plaintiff’s parents home [also] contained . . . family 28 heirlooms, financial records, and irreplaceable documents.” (Doc. 19 ¶¶ 19, 20, 22.) 1 Because these allegations, construed liberally, state facts that plausibly allege that Mr. 2 Young obtained access to the copyrighted photograph that was stolen from Mr. Kelly’s 3 safe, Mr. Kelly adequately pleads that Mr. Young had access to the photograph. 4 Beyond Mr. Young, Mr. Kelly does not assert facts demonstrating that the other 5 defendants had access to the copyrighted work. Specifically, Mr. Arpaio is said to have 6 participated in auctions and the distribution of counterfeit prints, but there are no 7 allegations that speak to how Mr. Arpaio obtained the photograph or counterfeits. 8 (Id. ¶ 12.) Mr. Kelly’s allegations are lacking with respect to the other defendants too. Mr. 9 Kelly alleges only that Ms. Young is a “co-participant in the operation and conceal[ed] 10 proceeds from the counterfeit sales,” that Ms. Hicks “received funds from Raymond 11 Cedrick Young,” and Ebay Inc. “facilitated and profited from the sale of counterfeit prints.” 12 (Id. ¶ 10-11, 14.) Conclusory statements are not sufficient to state a claim. Ashcroft, 556 13 U.S. at 678. Mr. Kelly’s bare allegations about these defendants’ involvement do not “(1) 14 establish[] a chain of events linking the plaintiff’s work and the defendant’s access, or (2) 15 show[] that the plaintiff’s work has been widely disseminated.” Art Attacks Ink, 581 F.3d 16 at 1143. Absent more, Mr. Kelly fails to plead sufficient facts to establish these defendants 17 had access to his copyrighted work, so he cannot maintain a copyright infringement claim 18 against them. 19 2. Substantial Similarity 20 Mr. Kelly also has to plead “that the works at issue are substantially similar in their 21 protected elements.” Cavalier, 297 F.3d at 822. Mr. Kelly alleges that Mr. Young 22 “unlawfully created an altered digital copy of the image.” (Doc. 19 ¶ 19.) Although Mr. 23 Kelly provides little detail, it is enough for Mr. Kelly to establish substantial similarity at 24 this stage of litigation. Courts will dismiss cases on the pleadings for lack of substantial 25 similarity only “when the copyrighted work and the alleged infringement are both before 26 the court, capable of examination and comparison.” Christianson v. West Pub. Co., 149 27 F.2d 202, 203 (9th Cir. 1945). Because Mr. Kelly has alleged facts that, taken as true, 28 would establish access and substantial similarity, he has adequately pled that Mr. Young 1 copied the copyrighted work. Mr. Kelly may proceed with his copyright infringement claim 2 against Mr. Young. 3 3. Statute of Limitations 4 The Court admonishes Mr. Kelly that he may not proceed with his copyright 5 infringement claim to the extent any alleged infringement was discovered by Mr. Kelly 6 more than three years prior to June 10, 2025, the date that Mr. Kelly initiated this case. A 7 plaintiff must bring a civil suit for copyright infringement within three years after the claim 8 accrues. 17 U.S.C. § 507(b). Each cause of action for copyright infringement accrues when 9 the plaintiff knows or should know about the infringement. Roley v. New World Picture, 10 Ltd., 19 F.3d 479, 481 (9th Cir. 1994). Mr. Kelly alleges that “counterfeit units were sold 11 between 2002 and 2025.” (Doc. 19 ¶ 20.) This case may proceed because the statute of 12 limitations runs separately for each copyright violation, Petrella v. Metro-Goldwyn-Mayer, 13 Inc., 572 U.S. 663 (2014), and a Court may dismiss a copyright infringement claim based 14 on the running of the statute of limitations “only if the assertions of the complaint, read 15 with the required liberality, would not permit the plaintiff to prove that the statute was 16 tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). Mr. Kelly may 17 proceed with his copyright infringement against Mr. Young only for continued acts of 18 infringement that Mr. Kelly became aware of on or after June 10, 2022. 19 C. Count Two: Civil RICO 20 “To state a civil RICO claim, plaintiffs must allege (1) conduct (2) of an enterprise 21 (3) through a pattern (4) of racketeering activity (5) causing injury to plaintiffs’ business 22 or property.” Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir. 2001) (citation modified). Mr. 23 Kelly alleges “Defendants constituted an enterprise engaged in racketeering activity, 24 including mail and wire fraud, identity theft, perjury, obstruction of justice, and money 25 laundering.” (Doc. 19 ¶ 37.) The activity involved “hundreds of thousands of counterfeit 26 sales using fraudulent identities and concealed banking.” (Id. ¶ 38.) Also, “[t]he refusal of 27 Arizona courts and law enforcement to protect [Mr. Kelly] . . . forms the basis of this civil 28 RICO . . . action.” (Id. ¶ 28.) 1 A RICO claim is subject to the heightened pleading standard imposed by Federal 2 Rule of Civil Procedure 9(b) when the alleged predicate act is fraud. Comm. to Protect our 3 Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp. 3d 1132, 1172-73 (E.D. Cal. 4 2017) (citing Wagh v. Metris Direct, Inc., 363 F.3d 821, 828 (9th Cir. 2003), overruled on 5 other grounds by, Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007) (en banc)). 6 Out of the predicate offenses, four sound in fraud: mail fraud, wire fraud, and identity theft. 7 (Doc. 19 ¶ 37.) Those are subject to the heightened pleading standard, while the other 8 predicate acts are not. Under Federal Rule of Civil Procedure 9(b)’s pleading standard for 9 fraud, “a party must state with particularity the circumstances constituting fraud or 10 mistake.” Fed. R. Civ. P. 9(b). To satisfy Rule 9(b)’s particularity requirement, the 11 complaint must “state the time, place, and specific content of the false representations as 12 well as the identities of the parties to the misrepresentation.” Alan Neuman Prods., Inc. v. 13 Albright, 862 F.2d 1388, 1392-93 (9th Cir. 1988) (quoting Schreiber Distrib. Co. v. Serv- 14 Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). The plaintiff must also indicate 15 “what is false or misleading about a statement, and why it is false.” Riehle v. Bank of Am., 16 N.A., No. CV-13-00251-PHX-NVW, 2013 WL 1694442, at *2 (D. Ariz. 2013) (citation 17 omitted). 18 The amended complaint does not plead facts that, taken as true, would establish the 19 required elements to sustain a RICO claim. First, Mr. Kelly does not adequately allege the 20 existence of an “enterprise,” defined as “any individual, partnership, corporation, 21 association, or other legal entity, and any union or group of individuals associated in fact 22 although not a legal entity.” 18 U.S.C. § 1961(4). A plaintiff must plead three elements to 23 show an association-in-fact enterprise exists. Comm. to Protect our Agric. Water, 235 F. 24 Supp. 3d at 1173. As another district court explained: 25 First, plaintiffs must plead a common purpose. To show a common purpose, plaintiffs must allege that the group engaged 26 in enterprise conduct distinct from their own affairs. Second, plaintiffs must plead an ongoing structure or organization to 27 the enterprise, which may be either formal or informal. Plaintiffs must also allege facts showing some participation in 28 the operation or management of the enterprise by members. Third, plaintiffs must plead that the enterprise had the 1 longevity necessary to accomplish its purpose. Finally, they must allege facts indicating that the alleged associates in the 2 enterprise, over time, functioned as a continuing unit. 3 Id. at 1173-74 (citation modified). 4 Plaintiff simply states that “Defendants constituted an enterprise.” (Doc. 19 ¶ 37.) 5 Other allegations in the complaint do little to supplement that naked allegation. Mr. Kelly 6 alleges that “Sheriff Joe Arpaio had direct ties with Raymond Young” and that there were 7 “money transfers from Raymond Young to Deja Hicks,” Mr. Young’s daughter. (Id. 8 ¶¶ 22-23.) The complaint also alleges that various police departments, state agencies, and 9 federal agencies provided “no meaningful protection or enforcement.” (Id. ¶ 27.) 10 Conclusory statements that there are “ties” between two defendants and money transfers 11 from a defendant to his daughter do not rise to the level of “an ongoing structure or 12 organization.” Comm. to Protect Our Agric. Water, 235 F.Supp.3d at 1173. Nor do several 13 authorities’ failure to act. Even if these authorities acted unlawfully, Mr. Kelly would have 14 to plead that these authorities acted together with a “common purpose . . . engaged in 15 enterprise conduct distinct from their own affairs.” Id. (internal citation omitted). There is 16 nothing to that effect in the complaint with respect to any defendant. (Doc. 19.) This 17 deficiency is particularly clear with respect to Defendant Ebay Inc., who is alleged to have 18 “facilitated and profited from the sale of counterfeit prints . . . through its online platform.” 19 (Doc. 19 ¶ 14.) A routine commercial relationship is not a common purpose sufficient to 20 establish an enterprise. Kammerer v. PennyMac Loan Servs. LLC, No. CV-24-00437-TUC- 21 RM, 2025 WL 3041894, at *7 (D. Ariz. Oct. 31, 2025) (finding that “Plaintiff has failed to 22 adequately plead the existence of an enterprise because there is an absence of facts showing 23 that any common purpose—distinct from a routine commercial relationship”—exists). Mr. 24 Kelly does not adequately plead the existence of an enterprise, so his RICO claim cannot 25 be sustained. The Court need not analyze Mr. Kelly’s alleged RICO claim under the other 26 required elements. 27 The Court will also note that Mr. Kelly’s RICO claim is also time barred. The statute 28 of limitations for a RICO claim is four years. Pincay v. Andrews, 238 F.3d 1106, 1108 (9th 1 Cir. 2001); see also Camboni v. MGM Grand Hotel, LLC, No. CV11-1784-PHX-DGC, 2 2012 WL 2915080, at *3 (D. Ariz. July 16, 2012). This “limitations period begins to run 3 when a plaintiff knows or should know of the injury that underlies his cause of action.” 4 Pincay, 238 F.3d at 1109 (quoting Grimmett v. Brown, 75 F.3d 506, 511 (9th Cir. 1996) 5 (citation modified)). “[A] plaintiff is deemed to have had constructive knowledge if it had 6 enough information to warrant an investigation which, if reasonably diligent, would have 7 led to discovery of the fraud.” Chang v. Farmers Ins. Co., Inc., 648 F. Supp. 3d 1174, 1178 8 (C.D. Cal. 2022) (internal quotation marks omitted). With respect to the allegations that 9 speak to unlawful conduct and the “ties” between Defendants, Mr. Kelly indicates that he 10 was made aware of these facts through three private investigators hired between 2006 and 11 2015. (Doc. 19 ¶¶ 22-23.) That is more than four years ago, so it is too late to bring a RICO 12 claim based on those acts. 13 D. Count Three: State Law Fraud 14 Mr. Kelly’s state law fraud claims are not sufficiently pled. Those claims are subject 15 to the heightened pleading standard under Rule 9(b). See Fed. R. Civ. P. 9(b). Mr. Kelly 16 alleges “Defendants made false representations and concealed material facts regarding the 17 ownership, licensing, and distribution of the photograph.” (Doc. 19 ¶ 42.) In the factual 18 allegations, Mr. Kelly fails to state the “circumstances constituting fraud . . . with 19 particularity.” Alan Neuman Prods., Inc., 862 F.2d at 1392. Mr. Kelly does not state where 20 and when such actions occurred, nor does Mr. Kelly elaborate on the contents of the false 21 misrepresentations and why they were false. See Swartz v. KPMG LLP, 476 F.3d 756, 764 22 (9th Cir. 2007) (noting that “Federal Rule of Civil Procedure 9(b) requires more specificity 23 including an account of the time, place, and specific content of the false representations as 24 well as the identities of the parties to the misrepresentations”) (citation modified). This 25 claim must be dismissed. 26 V. MOTION FOR SERVICE BY U.S. MARSHALS SERVICE 27 Mr. Kelly filed a Motion to Direct the U.S. Marshals Service to Serve All 28 Defendants. (Doc. 40.) The motion requests that the Court direct the U.S. Marshals Service 1 “immediately serve all ten defendants” with “every motion in this bundle,” “the Default 2 Judgment Order (once signed),” “the Final Judgment,” “collection writs,” “enforcement 3 actions,” and “notices to banks, employers, agencies, and all recipients of fraudulent 4 proceeds.” (Id. at 2, 4.) The Court previously granted Mr. Kelly’s request to proceed in 5 forma pauperis. (Doc. 14.) Under Rule 4(c)(3) of the Federal Rules of Civil Procedure, 6 service by U.S. Marshal is required when a “plaintiff is authorized to proceed in forma 7 pauperis” and requests such service. The Court will grant Mr. Kelly’s demand for service 8 by U.S. Marshal but deny the motion (Doc. 40) to the extent Mr. Kelly request differs from 9 the instructions provided below. 10 VI. OTHER MOTIONS 11 There are five other pending motions, including three Motions for Summary 12 Judgment (Docs. 24, 28, 32), a Motion for Order for Forensic Financial and Travel 13 Investigation (Doc. 32), a Motion for Clerk’s Entry of Default (Doc. 37), and a Motion for 14 Default Judgment (Doc. 39). The motions must be dismissed. 15 The motions for summary judgment (Docs. 24, 28, 32) are premature. “Although 16 [Federal Rule of Civil Procedure 56] allows a motion for summary judgment to be filed at 17 the commencement of an action, in many cases the motion will be premature until the 18 nonmovant has had time to file a responsive pleading or other pretrial proceedings have 19 been had.” Fed. R. Civ. P. 56, Advisory Committee’s Notes (2010 Amendments, Note to 20 Subdivision (b)). Courts deny pre-answer and pre-discovery motions for summary 21 judgment. See, e.g., Anthony v. Cnty. Of San Diego, No. 25-CV-0310-BAS-MMP, 2025 22 WL 1134611 (S.D. Cal. Apr. 16, 2025). Without discovery or a responsive pleading, the 23 Court cannot yet determine whether there is a genuine issue of material fact, so the Court 24 must deny the motions for summary judgment (Docs. 24, 28, 32) as premature. 25 The motion for entry of default (Doc. 37) and motion for default judgment (Doc. 39) 26 are also ill-timed. Mr. Kelly has not effectuated service under Rule 4 of the Federal Rules 27 of Civil Procedure. When a “[p]laintiff fail[s] to effectuate service under Rule 4, a clerk’s 28 entry of default is not appropriate.” Spann v. Cox Comm., No. 23-CV-00093-GMN-EJY, 1 2023 WL 7287495, at (D. Nev. Oct. 16, 2023) (citation omitted). That is because, without 2 service, the court does not have personal jurisdiction over a defendant. Mann v. Castiel, 3 681 F.3d 368, 372 (D.C. Cir. 2012). The Court therefore does not have the authority to 4 enter default at this time. And because seeking a default judgment is a two-step process 5 that first requires an entry of default, the Court cannot enter a default judgment. The Court 6 denies Mr. Kelly’s motion for entry of default (Doc. 37) and motion for default judgment 7 (Doc. 39). 8 Finally, the Court must deny Mr. Kelly’s Motion for Forensic Financial and Travel 9 Investigation (Doc. 32). Mr. Kelly states only that Federal Rules of Civil Procedure 26 and 10 34 “permit discovery of financial and travel records.” (Doc. 32 at 5.) While it is true Rule 11 26 permits discovery, that discovery must be conducted in accordance with the means 12 prescribed by Rules 30 through 36, and 45. Fed. R. Civ. P. 26, 30-36, 45. For example, Mr. 13 Kelly could request a production of documents from a non-party by serving a subpoena 14 under Federal Rule of Civil Procedure 45. A court order is not appropriate at this time, so 15 the Motion for Forensic Financial and Travel Investigation (Doc. 32) must be denied. 16 VII. CONCLUSION 17 While the Court appreciates Mr. Kelly is proceeding pro se and construes Mr. 18 Kelly’s complaint liberally, the Court must dismiss all of Mr. Kelly’s claims, except his 19 claim against Mr. Young for copyright infringement. The other claims do not satisfy the 20 pleading standards under Federal Rules of Civil Procedure 8 and 9(b). Because the Court 21 has already afforded Mr. Kelly an opportunity to cure the defects in his complaint, and Mr. 22 Kelly does not request leave to amend his complaint again, the case will proceed on the 23 current operative pleading (Doc. 19). See 28 U.S.C. § 1915(e)(2)(B). 24 IT IS THEREFORE ORDERED that Plaintiff’s Motion to Retransfer Venue 25 (Doc. 32) is DENIED. 26 IT IS FURTHER ORDERED that Counts Two and Three of Plaintiff’s Amended 27 Complaint (Doc. 19) are dismissed for failure to state a claim. 28 IT IS FURTHER ORDERED that Count One of Plaintiff’s Amended Complaint 1 (Doc. 19) is dismissed as to all Defendants except Defendant Raymond Young. 2 IT IS FURTHER ODERED that Plaintiff’s motions for summary judgment 3 (Docs. 24, 28, 32), Motion to Retransfer Venue (Doc. 32), Motion for Clerk’s Entry of 4 Default (Doc. 37), and Motion for Default Judgment (Doc. 39) are DENIED. 5 IT IS FINALLY ORDERED that Plaintiff’s Motion for Service by U.S. Marshals 6 (Doc. 40) is GRANTED IN PART and DENIED IN PART. The Court directs the 7 following: 8 (1) The Clerk of Court must send Plaintiff a service packet including the 9 Amended Complaint (Doc. 19), this Order, and both a summons and request for waiver 10 form for Defendant. 11 (2) Plaintiff must complete and return the service packet to the Clerk of 12 Court within 21 days of the date of filing of this Order. The United States Marshals Service 13 (“USMS”) will not provide service of process if Plaintiff fails to comply with this Order. 14 (3) The USMS must retain the Summons, a copy of the Complaint, and a 15 copy of this Order for future use. 16 (4) The USMS must notify Defendant of the commencement of this 17 action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal 18 Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The 19 USMS must immediately file requests for waivers that were returned as undeliverable and 20 waivers of service of the summons. If a waiver of service of summons is not returned by 21 Defendant within 30 days from the date the request for waiver was sent by the USMS, the 22 USMS must: 23 (a) Personally serve copies of the Summons, Complaint, and this 24 Order upon Defendant. 25 (b) Within 10 days after personal service is effected, file the 26 returns of service for Defendant along with evidence of the attempt to secure a waiver of 27 service of the summons and of the costs subsequently incurred in effecting service upon 28 Defendant. The costs of service must be enumerated on the return of service form (USM- 1 |} 285) and must include the costs incurred by the USMS for photocopying additional copies 2|| of the Summons, Complaint, or this Order and for preparing new process receipts and || return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless 5 || otherwise ordered by the Court. 6 (5) A Defendant who agrees to waive service of the Summons and || Complaint must return the signed waiver forms to the USMS, not the Plaintiff. 8 Dated this Ist day of December, 2025. 9 Wicked T. diburde Michael T. Liburdi 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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