Erin Brittney Patrick v. Evan Tyler Feldstein, et al.

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 ERIN BRITTNEY PATRICK, Case No. 2:26-cv-01485-JAD-EJY

5 Plaintiff, ORDER

6 v.

7 EVAN TYLER FELDSTEIN, et al.,

8 Defendants.

9 10 Pending before the Court are Plaintiff’s application to proceed in forma pauperis (“IFP”) and 11 Complaint alleging various violations of federal and state law. ECF Nos. 1, 1-2. Plaintiff’s IFP 12 application is dismissed without prejudice and with leave to refile. Plaintiff’s Complaint is dismissed 13 without prejudice and with one opportunity to amend. 14 I. Screening Standard 15 Despite recommending denial of Plaintiff’s IFP, the Court screens Plaintiff’s Complaint 16 under 28 U.S.C. § 1915(e)(2). When conducting its review, the Court must identify any cognizable 17 claims and dismiss claims that are frivolous, malicious, fail to state a claim upon which relief may 18 be granted or seek monetary relief from a defendant who is immune from relief. 28 U.S.C. § 19 1915A(b)(1), (2). Hence, to survive dismissal a complaint must “contain sufficient factual matter, 20 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 21 662, 678 (2009). The Court liberally construes pro se complaints and may only dismiss them “if it 22 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would 23 entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 24 U.S. at 678). 25 Whether a complaint is sufficient to state a claim is determined by taking all allegations of 26 material fact as true and construing these facts in the light most favorable to the plaintiff. Wyler 27 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 1 factual allegations, a plaintiff must nonetheless provide more than mere labels and conclusions. Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a 3 cause of action is insufficient. Id. Unless it is clear a complaint’s deficiencies cannot be cured 4 through amendment, a pro se plaintiff should be given leave to amend the complaint with notice 5 regarding the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 6 Finally, a complaint may be dismissed as frivolous if it is premised on a nonexistent legal 7 interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). “[A] 8 finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational 9 or the wholly incredible, whether or not there are judicially noticeable facts available to contradict 10 them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). 11 II. Discussion 12 a. Plaintiff’s Complaint. 13 Plaintiff’s Complaint identifies eight defendants including Evan Tyler Feldstein, 14 Acquisition.com, Skool Inc., LLC, Real Broker LLC, Sharran Srivatsaa, Alexander Hormozi, Leila 15 Hormozi, and Christopher Patrick. ECF No 1-2 at 1-2. These eight defendants allegedly “cultivated 16 personal and business relationships” with Plaintiff, “under false pretenses,” which led to an invasion 17 of privacy, intrusion on seclusion, misappropriation of likeness, intentional infliction of emotional 18 distress, civil conspiracy, and a violation of the Computer Fraud and Abuse Act (“CFAA”). Other 19 than identifying Mr. Feldstein, whom Plaintiff met through Bumble (an online dating application), 20 Plaintiff alleges no facts identifying any action or inaction taken by any defendant that supports one 21 or more of her causes of action. ECF No. 1-2 at 3-7. Mr. Feldstein was dismissed from this action 22 and judgment was entered in his favor on June 25, 2026. ECF No. 7. 23 There is a document attached to Plaintiff’s Complaint titled “Cease and Desist Demand” sent 24 to two of the named defendants (Acquisition.com and Skool Inc., LLC). ECF No. 1-2 at 8-9. The 25 letter demands these defendants (and other entities not sued) stop using Plaintiff’s likeness and cease 26 interfering with her safety, privacy, and legal rights. Id. Plaintiff claims the entities to whom the 27 letter was sent monitored her personal electronic devices; surveilling her using “cameras associated 1 systems”; impersonated or manipulated individuals in her “personal network to monitor, intimidate, 2 or influence” her; engaged in coercive or exploitive “conduct relating to sexual activity” resulting 3 “in business ownership or brand equity that was never granted”; and engaged in “psychological 4 intimidation or messaging designed to discourage disclosure of these events ….” Id. at 8. Also 5 attached to Plaintiff’s Complaint is a letter stating that in December 2025, Plaintiff was residing at 6 Shade Tree. Id. at 10. 7 In her only claim clearly identified as arising under federal law—CFAA—Plaintiff alleges 8 “[d]efendants intentionally accessed protected computers, electronic accounts, devices, cloud 9 systems, and digital platforms without authorization or in excess of authorization”; “[d]efendants 10 obtained information, caused damage, interfered with systems, and [engaged in] further[] fraudulent 11 activity through such unauthorized access”; and caused Plaintiff damages “exceeding statutory 12 thresholds under 18 U.S.C. § 1030.” Id. at 5. To the extent Plaintiff seeks to assert her civil 13 conspiracy claim under federal law, she states: “Defendants agreed among themselves to engage in 14 unlawful acts and/or lawful acts through unlawful means, including unauthorized surveillance, 15 account access, impersonation, interference with business relationships, and misuse of Plaintiff’s 16 likeness and information.” Id. at 6.1 17 b. Jurisdiction. 18 The Court has a duty to ensure it has subject matter jurisdiction over a dispute on which it is 19 asked to act. See, e.g., Fed. R. Civ. P. 12(h)(3). Further, federal courts have the authority to 20 determine the scope of their jurisdiction. Special Investments, Inc. v. Aero Air, Inc., 360 F.3d 989, 21 992 (9th Cir. 2004). A court may raise the question of subject matter jurisdiction sua sponte, and it 22 must dismiss a case if it determines it lacks subject matter jurisdiction. Id.; Fed. R. Civ. P. 12(h)(3). 23 Federal courts are courts of limited jurisdiction and possess only that power authorized by 24 the Constitution and federal statutes. Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is 25 presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock 26 West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

27 1 The Court does not discuss Plaintiff’s state law claims because in the absence of a federal claim, the Court will 1 “The party asserting federal jurisdiction bears the burden of proving that the case is properly in 2 federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. 3 General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). If the Court lacks subject matter 4 jurisdiction, an action must be dismissed. Fed. R. Civ. P. 12(h)(3). 5 Federal district courts “have original [subject matter] jurisdiction of all civil actions arising 6 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal district 7 courts also have subject matter jurisdiction over civil actions in diversity cases “where the matter in 8 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 9 different States.” 28 U.S.C. § 1332(a). “Section 1332 requires complete diversity of citizenship; 10 each of the plaintiffs must be a citizen of a different state than each of the defendants.” Morris v. 11 Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). 12 Plaintiff, a Nevada resident, attempts to state claims against entities she claims are 13 conducting business in Nevada. ECF No. 1-2 at 2. Plaintiff does not identify what business these 14 entities are conducting, their respective principal places of business or their states of incorporation. 15 For this reason, Plaintiff does not plead subject matter jurisdiction based on diversity of citizenship. 16 Rosenwald v. Kimberly-Clark Corp., 152 F.4th 1167, 1173 (9th Cir. 2025) (citing 28 U.S.C. § 17 1332(a)); NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 613-14 (9th Cir. 2016) (“The party seeking 18 to invoke the district court’s diversity jurisdiction always bears the burden of both pleading and 19 proving diversity jurisdiction.”); Harris v. Rand, 682 F.3d 846, 850 (9th Cir. 2012) (“a complaint 20 must include allegations of both the state of incorporation and the principal place of business of 21 corporate parties.”). Moreover, Plaintiff currently fails to state a claim arising under CFAA or 22 federal civil conspiracy law. See below. For this reason, Plaintiff’s Complaint does not presently 23 state a basis for jurisdiction under 28 U.S.C. § 1331. In sum, Plaintiff cannot proceed in federal 24 court based on the allegations in her Complaint because there is no basis upon which the Court is 25 able to properly exercise subject matter jurisdiction. However, as stated below, leave to amend is 26 granted. 27 1 c. Plaintiff Does Not Plead Facts Sufficient to State a CFAA or Civil Conspiracy Claim. 2 The Court is mindful that “[a] claim is facially plausible when the plaintiff’s complaint 3 alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the 4 alleged misconduct.” EVIG, LLC v. Natures Nutra Co., 685 F.Supp.3d 991, 995 (D. Nev. 2023) 5 (internal citation omitted). Where a plaintiff’s allegations lead only to the inference of a mere 6 possibility of misconduct, the claim is deficient and must be dismissed. Iqbal, 556 U.S. at 679. 7 Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.” Id. at 678. Further, Rule 8 of the Federal Rules of Civil Procedure 9 requires a complaint to plead sufficient facts to give a defendant fair notice of the claims against him 10 and the grounds upon which such claims rest. Yamaguchi v. United States Department of Air Force, 11 109 F.3d 1475, 1481 (9th Cir. 1997) (citations omitted). 12 1. Federal Civil Conspiracy (RICO)2 13 To state a federal civil RICO claim Plaintiff must allege “(1) conduct (2) of an enterprise (3) 14 through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing injury to 15 plaintiff's business or property.” Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 16 353, 361 (9th Cir. 2005). The heightened pleadings standards applicable to fraud claims under 17 Federal Rule of Civil Procedure 9(b) apply to federal civil RICO actions. Lancaster Cmty. Hosp. v. 18 Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991). Rule 9(b) requires that the 19 circumstances constituting fraud are stated with particularity, including the time, place, and specific 20 content of the false representation. Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 21 F.2d 1393, 1400 (9th Cir. 1986)). Rule 9(b) does not allow a complaint to merely lump multiple 22

23 2 To the extent Plaintiff intended to bring a Nevada state law civil conspiracy claim, her claim fails for the same reasons her federal claim fails; that is, Plaintiff fails to plead sufficient facts to give each defendant fair notice of the 24 factual allegation that support the claim against them. “Under Nevada law, a civil conspiracy is a ‘combination of two or more persons who, by some concerted action, intend to accomplish some unlawful objective for the purpose of 25 harming another which results in damage.’” Uy v. Van, Case No. 2:24-cv-00599-GMN-DJA, 2025 WL 343130, at *4 (D. Nev. Jan. 29, 2025) (quoting Collins v. Union Federal Sav. & Loan Ass’n., 662 P.2d 610, 622 (Nev 1983)). “To 26 state a claim for civil conspiracy, plaintiffs must allege two elements: (1) the commission of an underlying tort; and (2) an agreement between the defendants to commit that tort.” Banerjee v. Cont’l Inc.., Case No. 2:16-CV-669 JCM (VCF), 27 2016 WL 5939748, at *7 (D. Nev. Oct. 11, 2016) (citing GES, Inc. v. Corbitt, 21 P.3d 11, 15 (Nev. 2001)). “Further, in pleading a claim for civil conspiracy, plaintiffs must plead with particular specificity as to ‘the manner in which a 1 defendants together but requires plaintiffs to differentiate their allegations when suing more than one 2 defendant. Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007); Doe v. Universal Music 3 Group, 3:25-cv-00333-ART-CLB, 2025 WL 3251433, at *3 (D. Nev. Nov. 21, 2025) (internal quote 4 marks omitted). Plaintiff’s allegations do not assert facts necessary to state a civil RICO claim. 5 First, a review of Plaintiff’s Complaint demonstrate she does not plead her federal civil 6 conspiracy claim with particularity. ECF NO. 1-2 at 2-4. Second, in order to show a “pattern of 7 racketeering activity” Plaintiff must allege “at least two acts of racketeering activity, which must be 8 ‘related’ and ‘amount to or pose a threat of continued criminal activity.’” Nutrition Distribution 9 LLC v. Custom Nutraceuticals LLC, 194 F.Supp.3d 952, 957 (D. Ariz. 2016) (cleaned up) (quoting 10 H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, (1989). “Where RICO is asserted against multiple 11 defendants, a plaintiff must allege at least two predicate acts by each defendant.” In re WellPoint, 12 Inc. Out-of-Network UCR Rates Litig., 865 F.Supp.2d 1002, 1035 (C.D. Cal. 2011) (citing United 13 States v. Persico, 832 F.2d 705, 714 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988)). And even 14 when a plaintiff plausibly alleges two predicate acts, a civil RICO claim may still fail where a 15 plaintiff fails to sufficiently demonstrate continuity. Puana v. Kealoha, 587 F.Supp.3d 1035, 1052- 16 53 (D. Haw. 2022). “‘[C]ontinuity’ is both a closed- and open-ended concept, referring either to a 17 closed period of repeated conduct, or to past conduct that by its nature projects into the future with 18 a threat of repetition.” H.J. Inc. , 492 U.S. at 241. 19 Throughout her Complaint Plaintiff states broad generalities of activity against the remaining 20 defendants never identifying which defendant engaged in what act or how that acts of each defendant 21 evidence a pattern of racketeering causing Plaintiff damage. Instead, Plaintiff states there was 22 wrongdoing in various forms, collectively by defendants. ECF No. 1-2 ¶¶ 1-5; 22-34. These 23 allegations fail to meet the pleading requirement of Federal Rule of Civil Procedure 8 by, at a 24 minimum, failing to identify two predicate acts by each defendant that are related to, amount to, or 25 pose a threat of continued criminal activity. Yamaguchi, 109 F.3d at 1481; Nutrition Distribution 26 LLC, 194 F.Supp.3d at 957. 27 1 Accordingly, Plaintiff’s civil conspiracy claim fails to state a claim upon which relief may 2 be granted. This claim is dismissed without prejudice and with one opportunity to amend.3 3 ii. CFAA 4 “CFAA prohibits a number of different computer crimes, the majority of which involve 5 accessing computers without authorization or in excess of authorization, and then taking specified 6 forbidden actions, ranging from obtaining information to damaging a computer or computer data.” 7 LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1131 (9th Cir. 2009). To state a CFAA claim, a 8 private plaintiff must prove that the defendant violated one provision of 18 U.S.C. § 1030(a)(1) (7), 9 and that violation must involve one of the factors listed in 18 U.S.C. § 1030(c)(4)(A)(i)(I)-(V). See 10 18 U.S.C. § 1030(g). 11 A review of 18 U.S.C. § 1030(a)(1) through (7) demonstrates this is a complicated and 12 detailed statute. Some provisions clearly do not apply to Plaintiff. 4 To this end, Plaintiff fails to (1) 13 identify under which, if any, of the statutory prohibitions found in the statute she proceeds and, (2) 14 plead facts supporting such CFAA claim. The Court cannot supply essential elements of a claim 15 that were not initially pled—even in the context of a pro se plaintiff. Richards v. Harper, 864 F.2d 16 85, 88 (9th Cir. 1988); Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 17 1982). Although the Federal Rules of Civil Procedure are very liberal as to pleading where a plaintiff 18 is proceeding pro se, even a pro se complaint is subject to dismissal if the pleading fails to reasonably 19 inform the adverse party of the asserted cause of action. Haines v. Kerner, 404 U.S. 519, 520 (1972).

20 3 The Court further notes if Plaintiff did not intend to assert civil RICO, she does not identify under what theory she asserts her civil conspiracy claim. ECF No. 1-2. 21 4 CFAA is an extremely dense and complicated statute containing numerous provisions that do not apply to Plaintiff. See, by way of example, United States v. Schulte, in which the Southern District of New York explained that 22 18 U.S.C. §§ 1030 (a)(1) and (a)(2)(B) require the federal government to prove that a defendant accessed a computer initially with authorization, and then exceeded the defendant’s authority by accessing and obtaining information that is 23 in question. 578 F.Supp.3d 596, 616-17 (S.D.N.Y. 2021). The court further explained that 18 U.S.C. “§ 1030(a)(5)(A) proscribes the intentional transmission of, among other things, any “code or command” that causes “damage” without 24 authorization to a “protected computer.” Id. at 617. Moreover, 18 U.S.C. § 1030(c)(4)(A)(i)(I)-(VI) addressing damage states: “(I) loss to 1 or more persons during 25 any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least 26 $5,000 in value; (II) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; (III) physical injury to any person; (IV) a threat to 27 public health or safety; (V) damage affecting a computer used by or for an entity of the United States Government in 1 Plaintiff’s CFAA pleaded claim is far too vague for the Court to analyze or any defendant to 2 identify and respond substantively to her allegations. While it may not be impossible for Plaintiff to 3 state a CFAA claim, she fails to do so in her current Complaint. Accordingly, this claim is dismissed 4 without prejudice and without leave to amend. 5 III. ORDER 6 IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma pauperis (ECF 7 No. 1) is DENIED without prejudice and with leave to amend. 8 IT IS FURTHER ORDERED that the Clerk of Court is to send Plaintiff a blank in forma 9 pauperis application for a non-prisoner, together with the instructions for completing the same. 10 Plaintiff must complete the information, including any sources of income and all expenses (including 11 those for the individual identified as J.P.), and file the same no later than July 29, 2026. Failure to 12 complete an IFP that explains Plaintiff’s financial status will result in a recommendation to dismiss 13 this action in its entirety without prejudice. 14 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1-2) is DISMISSED 15 without prejudice and with leave to amend. 16 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint she must 17 do so at the same time she files her revised in forma pauperis application—that is, no later than July 18 29, 2026. Plaintiff’s amended complaint must be titled “AMENDED COMPLAINT” and must 19 include sufficient facts to support the federal claims she seeks to bring or, if she pleads claims arising 20 only under state law, the facts necessary to establish diversity jurisdiction. Plaintiff’s amended 21 complaint must include all claims and facts to support such claims so that each defendant 22 understands that he, she, or it is able to respond to the factual allegations asserted against that 23 defendant. The Court will not refer back to Plaintiff’s original Complaint to review any allegations 24 when screening the amended complaint. 25 IT IS FURTHER ORDERED that the Clerk of Court is to send Plaintiff a blank form 26 complaint for a civil non-prisoner plaintiff. 27 IT IS FURTHER ORDERED that Plaintiff may not plead claims against Evan Tyler 1 IT IS FURTHER ORDERED that failure to file an amended complaint that complies with 2 the timing and substantive requirements of this Order may result in a recommendation to dismiss 3 this action in its entirety without prejudice. 4 Dated this 29th day of June, 2026. 5

6 ELAYNA J. YOUCHAH 7 UNITED STATES MAGISTRATE JUDGE

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