a. Legal Standard
A motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6) does not test
whether the plaintiff will prevail on the merits, but instead
whether the claimant has properly stated a claim. See Scheuer
v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974). The court may dismiss a complaint for failure to state
a claim only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73,
104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In
deciding such a motion, the court must accept as true all
well-pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff. See Antonelli v. Sheahan,
81 F.3d 1422, 1427 (7th Cir. 1996). However, the court need not
accept as true the plaintiff's legal conclusions. See Papasan
v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209
The plaintiff in this matter is proceeding pro se. A pro se
complaint is held to a less stringent standard than formal
pleadings drafted by lawyers. See King v. Meekins, 593 F. Supp. 59,
60 (D.D.C. 1984) (quoting Haines, 404 U.S. at 520, 92 S.Ct.
594). For example, the court is required to read pro se
complaints liberally and broadly. See Haines, 404 U.S. at 519,
92 S.Ct. 594. Also, a pro se complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support
of his claim that would entitle him to relief. See id. at 520,
92 S.Ct. 594. Still, Wilson v. Civil Town of Clayton,
839 F.2d 375, 378-79 (7th Cir. 1988), stands for the proposition that
although a court will read a pro se plaintiff's complaint
liberally, a pro se plaintiff must at least meet a minimal
standard of pleading in the complaint.
The defendants assert that the plaintiff has not specified
how they violated the plaintiff's civil rights or what civil
rights law they violated. In Wilson, the court held that the
pro se plaintiff's complaint alleging equal protection
violations failed to state a claim upon which relief could be
granted because the plaintiff failed to allege facts to support
the claim, and the plaintiff did not use any words or phrases
invoking the Equal Protection Clause of the Fourteenth
Amendment, such as equal protection, discrimination,
differential treatment, preference, or prejudice. See id. at
379. The plaintiff in Wilson stated only, "the above said
actions violate plaintiff's civil rights under the United
States Constitution." Id. The Wilson court held that the pro se
plaintiff failed to state an equal protection claim upon which
relief could be granted, and the court dismissed the claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Id.
Similarly, the plaintiff in the case at bar makes only a
conclusory statement regarding a civil rights violation. In
this respect, the plaintiff states "Plaintiff Demand One
Hundred Thousand Dollar each Defendant Civil Rights Charge
[sic]." (Compl. at p. 5.) The court has reviewed the complaint
and finds that it fails to mention any type of discrimination,
differential treatment, preference, prejudice or any other
phrase invoking language of a civil rights violation. The
plaintiff states no specific law on which he bases this claim
other than "Rule 440 Under the Civil Statute." (Compl. at p. 3;
see also Pl.'s First Mot. to Amend the Compl. at p. 1 (citing
"US Statute 440 Civil Rights Law").) The court was unable to
find such a rule relating to civil rights. A conclusory
statement without any facts alleged to support it is simply
insufficient. See Wilson, 839 F.2d at 379.
Accordingly, the court concludes that the plaintiff's civil
rights claim is conclusory, and therefore the plaintiff does
state a claim upon which relief can be granted. Consequently,
the court grants Defendants NASD, Thompson, Lindsay, Crestar
and Kane's motions to dismiss the plaintiff's civil rights
violation claim pursuant to Federal Rule of Civil Procedure
2. Fraud and Negligence
The defendants argue that the complaint should be dismissed
pursuant to Federal Rule of Civil Procedure 17(a) because the
plaintiff is not the real party in interest.
a. Legal Standard
Federal Rule of Civil Procedure 17(a) requires that:
Every action shall be prosecuted in the name of
the real party in interest. An executor,
administrator, guardian, bailee, trustee of an
express trust, a party with whom or in whose name
a contract has been made for the benefit of
another, or a party authorized by statute may sue
in that person's own name without joining the
party for whose benefit the action is brought; and
when a statute of the United States so provides,
an action for the use or benefit of another shall
be brought in the name of the United States.
No action shall be dismissed on the ground that it
is not prosecuted in the name of the real party in
interest until a reasonable time has been allowed
after objection for ratification of commencement of
the action by, or joinder or substitution of, the
real party in interest; and such ratification,
joinder, or substitution shall have the same effect
as if the action had been commenced in the name of
the real party in interest.
Fed.R.Civ.P. 17(a) (emphasis added). The function of this rule
is to "protect the defendant against a subsequent action by the
party actually entitled to recover, and to ensure generally
that the judgment will have its proper effect as res judicata."
See Fed.R.Civ.P. 17(a) advisory committee's note.
The real party in interest is the person holding the
substantive right sought to be enforced, and not necessarily
the person who will ultimately benefit from the recovery.
See United States v. 936.71 Acres of Land, 418 F.2d 551, 556
(5th Cir. 1969). Alice Price, not Willie James Price, possesses
the substantive right sought to be enforced. Alice Price is the
only person who has an ownership interest in the shares of the
Fund that are the subject of this complaint. Shares of the Fund
were purchased in her name. Alice Price completed and signed a
New Account Information form indicating that she was opening an
individual account. She did not write a name in the box for a
co-applicant, and only her signature appears on the New Account
Information form. (Defs. Crestar and Kane's Mot. to Dismiss Ex.
A.) The name and social security number on the account
statement is that of Alice Price. (Compl.Ex. 3.)
Alice Price completed and signed the "Trading Authorization
Limited to Purchase and Sales of Securities" that named the
plaintiff as attorney-in-fact and agent for Alice Price
regarding transactions on her account with Crestar.
This authorization enabled the plaintiff to:
sell, . . . purchase, exchange, convert, tender,
trade, or otherwise acquire or dispose of stocks,
bonds, and any other securities including the
purchase and/or sale of option contracts . . . to
open new option positions or close existing
positions, to exercise option contracts and to
sell option contracts as either a covered or
uncovered writer, and/or contracts relating to the
same on margin or otherwise in accordance with
(the) terms and conditions for (Alice Price's)
account and risk in (Alice Price's) name and/or
number on (the) books.
(Defs. Crestar and Kane's Mot. to Dismiss Ex. B.)
The plaintiff has no ownership interest in the shares of the
Fund, but is simply authorized to conduct transactions on
behalf of Alice Price. For these reasons, the court concludes
that Alice Price is the real party in interest. Finally, the
court observes that the complaint itself, a handwritten
document, originally had Alice Price's name in the caption as
a plaintiff. Prior to filing the complaint, however, someone
crossed her name off. This action is not determinative, but it
may indicate a reluctance on her part to bring this action.
Having concluded that Alice Price is the real party in
interest, the court exercises its authority under Federal Rule
of Civil Procedure 17(a) and in the interest of justice will
allow a reasonable time for the real party in interest to be
joined or substituted or to ratify the commencement of the
action. If, on or before April 30, 1999, Alice Price is not
joined or substituted, or has not ratified this action, the
court will dismiss this suit for failure to name the real party
B. The Plaintiff's Motions to Amend Complaint
1. Legal Standard
Under certain circumstances, a plaintiff may rescue an
otherwise deficient complaint by amending it. Once a responsive
pleading is served, a party may amend the party's pleading by
leave of the court or by written consent of the adverse party,
and leave shall be freely given when justice so requires.
See Fed.R.Civ.P. 15(a). If the underlying facts or
circumstances relied upon by a plaintiff may be a proper
subject of relief, the plaintiff ought to be afforded an
opportunity to test his claim on the merits. See Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
However, when the plaintiff attempts to add a futile amendment
to the complaint, the court does not abuse its discretion when
it denies leave to amend the complaint. See Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996); Foman, 371 U.S.
at 182, 83 S.Ct. 227. An amendment is futile if the complaint
as amended would not survive a motion to dismiss. See Monroe v.
Williams, 705 F. Supp. 621, 623 (D.D.C. 1988); James Madison
Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996).
In the present case, the plaintiff's two motions to amend the
complaint assert a breach of contract claim and increase the
counts of fraud to twelve for each defendant. Defendants NASD,
Thompson and Lindsay oppose these motions.
The plaintiff's amendments are futile because the claims
encompassed by it will not cure the deficiencies of the
original complaint, namely failure to name the real party in
interest. As discussed above, the real party in interest is the
person holding the substantive right sought to be enforced, and
not necessarily the person who will ultimately benefit from the
recovery. See 936.71 Acres of Land, 418 F.2d at 556. In the
case at bar, the plaintiff seeks to add claims for breach of
contract and fraud. These amendments do not change the fact
that the real party in interest is not named as a party to this
Accordingly, amending the complaint would be futile.
Therefore, the court denies without prejudice the plaintiff's
motions to amend the complaint. Should the real party in
interest be joined or substituted or ratify this action on or
before April 30, 1999, the plaintiff may again file a motion to
amend the complaint.
For the reasons stated above, the court grants Defendants
NASD, Thompson, Lindsay, Crestar and Kane's motions to dismiss
the plaintiff's civil rights violation claim. In addition, the
court concludes that the plaintiff has failed to name the real
party in interest, Alice Price. In the interest of justice, the
court will allow the plaintiff until April 30, 1999 to join or
substitute Alice Price, or to have Alice Price ratify the
commencement of this action.
If one of these options does not occur on or before April 30,
1999, the court will dismiss the suit. Finally, the court
concludes that the plaintiff's proposed amendments to the
complaint do not cure the deficiencies of the original
complaint. Consequently, the court denies without prejudice the
plaintiff's motions to amend the complaint.