1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DUELL FAMILY TRUST and TODD Case No.: 3:24-cv-00654-RBM-DDL ALAN DUELL, Trustee, 12

ORDER:

Plaintiffs, 13 v. (1) GRANTING PLAINTIFF’S 14

MOTION TO PROCEED IN FORMA

DONNA MAY DUELL TRUST;

15 PAUPERIS DONNA MAY DUELL, Grantor and

16 Trustee; et al., (2) SCREENING COMPLAINT 17 Defendants. PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. § 18 1915A(b) 19

[Doc. 2] 20 21 22 On April 8, 2024, Plaintiffs Duell Family Trust and Todd Alan Duell, Trustee 23 (collectively, “Plaintiffs”), filed an Affidavit and Complaint for Fraud (“Complaint”). 24 (Doc. 1.) The Court notes, however, the proper trust plaintiff appears to be the Donna M 25 Duell Trust. (See id. at 1, 3.) 26 Plaintiffs allege that Todd Alan Duell is the trustee of the irrevocable Donna M Duell 27 Trust, which operates out of California. (Id. at 3.) Plaintiffs allege that Donna May Duell 28 1 is the grantor and trustee of the revocable living Donna May Duell Trust, which operates 2 out of Hawaii. (Id.) 3 Plaintiffs allege that, “[o]n December 15, 2020, Donna May Duell wrote check 4 number 478 from the irrevocable Donna M Duell Trust bank account at JP Morgan Chase 5 Bank to herself ‘Donna Duell’ in the amount of $200,000.00.”1 (Id. at 4.) Plaintiffs allege 6 that “[a]ccording to the memo it was a ‘[transfer] to UBS [account number] KW62246’” 7 and that the “account number KW62246 is for the revocable Donna May Duell Trust.” 8 (Id.) Plaintiff asserts that “Donna May Duell did not have the legal authority to take funds 9 from the irrevocable Donna M Duell Trust, as the Grantor, back to herself and place them 10 into her grantor revocable living trust Donna May Duell Trust.” (Id.) 11 Similarly, Plaintiffs allege that, on September 27, 2022, Donna May Duell sold real 12 property in Nevada owned by the irrevocable Donna M Duell Trust for $900,000. (Id. at 13 5.) Plaintiffs allege that the Donna M Duell Trust did not receive the profits or proceeds 14 from the sale. (Id.) Plaintiffs believe that the money was transferred to UBS or Tracy L. 15 Duell-Cazes “in the name of the revocable Donna May Duell Trust.” (Id.) Plaintiffs assert 16 that “Donna May Duell did not have the legal authority to take real property or funds from 17 the irrevocable Donna M Duell Trust, as the Grantor, back to herself and deposit it into her 18 grantor revocable living trust Donna May Duell Trust, nor place the funds under the 19 custodianship of any other person other than the Trustee for the Donna M Duell Trust.” 20 (Id. at 5–6.) 21 Plaintiffs also filed an Application to Proceed in District Court Without Prepaying 22 Fees or Costs (“IFP Application”). (Doc. 2.) In their IFP Application, Plaintiffs explain 23 that the Trust does not have a bank account or any property as a result of the embezzlement 24 and that the trustee is disabled and on SNAP and Medicaid. (Id. at 5.) Plaintiffs attached 25 an Affidavit in support of In Form Pauperis (“IFP Affidavit”). (See id. at 5–12.) In their 26

27 1 Plaintiffs purport to attach an exhibit in support of this allegation, but the exhibit is not 28 1 IFP Affidavit, Plaintiffs assert that “Donna May Duell bankrupted the Donna M Duell 2 Trust when she moved all the assets and money from the irrevocable Donna M Duell Trust 3 to the revocable Donna May Duell Trust.” (Id. at 8 (emphasis in original).) Plaintiffs also 4 assert that Todd Alan Duell was paralyzed in the hospital from September 2021 through 5 November 4, 2022. (Id.) Plaintiffs assert that he had nothing when he was released—no 6 clothes, no money, and no place to live—and for all intensive purposes was/is homeless. 7 (Id. at 9.) Plaintiffs assert that Todd Alan Duell receives $290 per month from SNAP. (Id.) 8 I. LEGAL STANDARD 9 A motion to proceed IFP presents two issues for the Court’s consideration. First, the 10 Court must determine whether an applicant properly shows an inability to pay the 11 $4052 civil filing fee required by this Court. See 28 U.S.C. §§ 1914(a), 1915(a). To that 12 end, an applicant must provide the Court with a signed affidavit “that includes a statement 13 of all assets[,] which shows inability to pay initial fees or give security.” Civ. L.R. 3.2(a). 14 Second, § 1915(e)(2)(B)(ii) requires the Court to evaluate whether an applicant’s complaint 15 sufficiently states a claim upon which relief may be granted. See Lopez v. Smith, 203 F.3d 16 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to 17 dismiss an [IFP] complaint that fails to state a claim.”). The Court addresses each issue in 18 turn. 19 II. DISCUSSION 20 A. Plaintiff’s IFP Application 21 An applicant need not be completely destitute to proceed IFP, but he must adequately 22 prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 23 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs 24

25 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $55. See 28 U.S.C. § 1914(a); United States Courts, District Court Miscellaneous 27 Fee Schedule § 14 (effective Dec. 1, 2023), https://www.uscourts.gov/services- forms/fees/district-court-miscellaneous-fee-schedule. The additional $55 administrative 28 1 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 2 Cir. 2015) (citing Adkins, 335 U.S. at 339); see also United States v. McQuade, 647 F.2d 3 938, 940 (9th Cir. 1981) (an adequate affidavit should state supporting facts “with some 4 particularity, definiteness and certainty”) (citation omitted). No exact formula is “set forth 5 by statute, regulation, or case law to determine when someone is poor enough to earn IFP 6 status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on 7 a case-by-case basis. See id. at 1235–36 (declining to implement a general benchmark of 8 “twenty percent of monthly household income”); see also Cal. Men’s Colony v. Rowland, 9 939 F.2d 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based 10 upon available facts and by exercise of their “sound discretion”), rev’d on other grounds, 11 506 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (“The 12 granting or denial of leave to proceed [IFP] in civil cases is within the sound discretion of 13 the district court.”). 14 Here, Plaintiffs assert that the “trust” (presumably, the Donna M Duell Trust) does 15 not have a bank account or any property. (Doc. 2 at 5, 8.) Plaintiffs also assert that Plaintiff 16 Todd Alan Duell has “nothing” and receives only $290 from SNAP each month. (Id. at 9.) 17 Based on these limited facts, the Court exercises its broad discretion and GRANTS 18 Plaintiff’s IFP Application. See Cal. Men’s Colony v. Rowland, 939 F.2d at 858 (requiring 19 that district courts exercise their “sound discretion”). 20 B. Screening Under 28 U.S.C. § 1915(e) 21 As discussed above, every complaint filed pursuant to the IFP provisions of 28 22 U.S.C. § 1915 is subject to mandatory screening by the Court under Section 1915(e)(2)(B). 23 Lopez, 203 F.3d at 1127. Under this provision, the Court must dismiss complaints that are 24 (1) frivolous or malicious, (2) fail to state a claim on which relief may be granted, or (3) 25 seek monetary relief from defendants who are immune from such relief. See 28 U.S.C. § 26 1915(e)(2)(B). 27 “[T]he rule requiring entity defendants to appear only through counsel applies to 28 trusts.” United States v. Molen, Case No. 2:10-cv-02591 MCE, 2011 WL 292150, at *5 1 (E.D. Cal. Jan. 31, 2011); see also Alpha Land Co. v. Little, 238 F.R.D. 497, 502 (E.D. Cal. 2 ||2006) (finding no standing because “a trust can only be represented by an attorney in 3 || federal court”) (emphasis in original) (citing C.E. Pope Equity Trust v. United States, 818 4 ||F.2d 696, 697 (9th Cir. 1987) and 28 U.S.C. § 1654). Relatedly, “[a] trustee may not 5 ||represent a trust pro se in federal court.” Sundby v. Marquee Funding Grp., Inc., No. 21- 6 55504, 2022 WL 4826445, at *1 (9th Cir. Oct. 3, 2022) (citing CLE. Pope Equity Trust, 818 7 || F.2d at 697). However, “there is an exception to the general rule: an individual who is the 8 ||trust’s ‘beneficial owner’ may appear pro se on the trust’s behalf.” Molen, 2011 WL 9 || 292150, at *6. 10 Here, Plaintiff Todd Alan Duell appears to be representing the Donna M Duell Trust 11 |/in his capacity as trustee. (See Doc. 1 at 1, 3.) Plaintiffs request that the stolen funds be 12 ||returned to the Donna M Duell Trust, not to Plaintiff Todd Alan Duell personally. □□□□ at 13 However, Plaintiffs’ Complaint does not allege any facts suggesting that Plaintiff Todd 14 || Alan Duell is the Donna M Duell Trust’s “beneficial owner.” Therefore, Plaintiff Todd 15 Duell is barred from representing the trust without retaining counsel. See Molen, 16 WL 292150, at *6. 17 il. CONCLUSION 18 Based on the foregoing, Plaintiff's IFP Application is GRANTED, but Plaintiffs 19 ||Complaint is DISMISSED. Given Plaintiffs pro se status, the Court will give Plaintiff 20 || one opportunity to retain counsel and amend his claims in accordance with the above. Any 21 ||amended complaint must be filed on or before October 14, 2024. 22 IT IS SO ORDERED. 23 |}|\DATE: October 1, 2024 04 Fath Earn De iltayps > 25 ON. RUTH BERM@BDEZ MONTENEGRO

UNITED STATES DISTRICT JUDGE

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