Fred Martin Wimberley v. Bonnie Pritz Kav, et al

Filing 18

ORDER RE REQUEST TO PROCEED IN FORMA PAUPERIS by Judge Fernando M. Olguin that the request to Proceed In Forma Pauperis 3 is hereby DENIED. IT IS RECOMMENDED by Magistrate Judge for the following reasons: District Court lacks jurisdiction. See attachment. IT IS FURTHER ORDERED that this case is hereby DISMISSED immediately. (Made JS-6. Case Terminated.) (jp)

Download PDF
FILED CLERK, U.S. DISTRICT COURT OCT 11 2016 CENTRAL DISTRICT OF CALIFORNIA iTNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA FRED MARTIN WIMBERLEY, vdr BY: ___________________ DEPUTY CASE NUMBER CV 16-6008 FMO(FFM) PLAINTIFFS) v. BONNIE PRITZKAU,et al., ORDER RE REQUEST TO PROCEED IN FORMA PA UPERIS DEFENDANTS) IT IS ORDERED that the Request to Proceed In Forma Pauperis is hereby GRANTED. United States Magistrate Judge Date IT IS RECOMMENDED that the Request to Proceed In Forma Pauperis be DENIED for the following reason(s): ~ District Court lacks jurisdiction Inadequate showing ofindigency Immunity as to Legally and/or factually patently frivolous Other: Comments: See attachment. October 6, 2016 Unite States Magistrate Judge Date IT IS ORDERED that the Request to Proceed In Forma Pauperis is hereby: GRANTED ~ DENIED (see comments above). IT IS FURTHER ORDERED that: X 0 Plaintiff SHALL PAY THE FILING FEES IN FULL within 30 days or this case will be dismissed. X This case is hereby DISMISSED immediately. 0 This case is hereby REMANDED to state court. October 11, 2016 Date CV-73 (08/16) /s/ Fernando M. Olguin United States District Judge ORDER RE REQUEST TO PROCEED IN FORMA PAUPERIS 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 FRED MARTIN WIMBERLEY, No. CV 16-6008 FMO(FFM) Plaintiff, 11 ATTACHMENT TO DENIAL OF RE L1EST FOR LEAVE TO FILE AC ION IN FORMA PA UPERIS v. 12 13 BONNIE PRITZKAU,et al., Defendants. 14 15 16 I Proceedings . 17 On August 11, 2016, plaintiff, who proceeds pro se, filed a complaint and an 18 application to proceed informa pauperis ("IFP"). Under 28 U.S.C. § 1915(e)(2)(B)(ii), 19 the court must dismiss an informa pauperis action "at any time" if the court determines 2 0 that the action fails to state a claim upon which relief may be granted. Lopez v. Smith, 21 203 F.3d 1122, 1129(9th Cir. 2000). The Court denied the IFP application and 22 dismissed the accompanying complaint on the ground that plaintiff had failed to allege a 23 claim providing a basis for federal jurisdiction. (Docket No. 6; see 28 U.S.C. § 1331.) 2 4 The Court granted plaintiff leave to amend his pleading to allege, to the extent possible, 25 a claim under the Fair Debt Collection Practices Act(the "FDCPA"), 15 U.S.C. § 1692 et 2 6 seq., the federal law appearing most applicable to plaintiff's purported claims. (Docket 27 No. 6.) 28 /// 1 Plaintiff filed a first amended complaint(the "FAC")on August 24, 2016. 2 (Docket No. 7.) The Court denied plaintiff's IFP application and dismissed the FAC 3 with leave to amend, again on the ground that plaintiff had failed to allege a claim 4 providing federal jurisdiction. (Docket No. 8.) The Court again granted plaintiff leave 5 to amend his pleading to attempt to allege an FDCPA claim. (Id.) Plaintiff filed a 6 second amended complaint(the "SAC")on September 16, 2016. (Docket No. 10.) 7 The Court finds that plaintiff has again failed to allege a claim providing federal 8 jurisdiction. As it does not appear possible for plaintiff to cure the deficiencies in his 9 10 pleading, his IFP application should be denied and this action dismissed without leave to amend. 11 12 13 II. Analysis Plaintiff names Bonnie Pritzkau, Natalie Veley, and Theresa Rath as defendants. 14 (SAC at 1.) He alleges that a nonparty jewelry store in Baldwin Hills fraudulently 15 induced him to sign up fora $5000 line of credit with nonparty Synchrony Financial 16 Bank ("Synchrony"). (Id. at 2-3.) Plaintiff purchased three engagement rings using the 17 Synchrony line of credit. (Id. at 2.) Plaintiff owes only $883 on the line of credit, but 18 Synchrony contends the amount due is $2,883. (Id. at 2, 4.) Plaintiff's credit has been 19 "completely ruined" with three credit-rating agencies. (Id. at 2.) 20 Plaintiff's specific allegations against defendants are as follows: (1)they 21 wrongfully charged him an interest rate of29% on his purchase, which is over the 22 California limit of 14%; and(2)they have continually harassed plaintiff by phone at his 23 job and at home regarding the disputed amount owed on the line of credit. (SAC at 1-2, 24 4.) In addition, Pritzkau, Synchrony's Senior Corporate Specialist in Rapid City, has 25 26 failed to keep an accurate accounting of plaintiff's debt. (Id. at 4.) Plaintiff alleges that the foregoing conduct constitutes "fraud by inducement" and 27 "major federal credit card fraud." (SAC at 2.) Despite being twice advised of the 28 deficiencies in his pleading, plaintiff does not allege a federal statutory basis for his 2 1 claims. (See id. generally.) The Court thus assumes, for the third time, that plaintiff is 2 attempting to allege a claim under the FDCPA. That act prohibits, as relevant, certain 3 methods of communication with a consumer regarding the collection of a debt, e.g. 4 telephone calls intended to harass or annoy the consumer. See 15 U.S.C. §§ 1692c(a), 5 6 1692d(5), 1692f. The relevant FDCPA provisions apply only to "debt collectors." See id. The 7 FDCPA defines "debt collector" as any person "who regularly collects or attempts to 8 collect ...debts owed or due or asserted to be owed or due another" or who uses any 9 instrumentality of interstate commerce "in any business the principal puYpose ofwhich is 10 the collection ofany debts ...." 15 U.S.C.A. § 1692a(6)(emphasis added). Officers 11 and employees of a "creditor," while collecting debts for that creditor, are excluded from 12 the definition of"debt collector." 15 U.S.C.A. § 1692a(6)(A). In turn, a "creditor" is 13 "any person who offers or extends credit creating a debt or to whom a debt is owed," 14 excluding persons receiving assignment or transfer of a defaulted debt solely to collect 15 the debt for another. 15 U.S.C.A. § 1692a(4). 16 Here, plaintiff alleges that Synchrony originated, and services, the line of credit in 17 question. Accordingly, Synchrony is not a "debt collector," as it does not regularly 18 collect debts "due another"; its "principal purpose" is not the collection of any debts; 19 and it was not assigned the debt in question for collection purposes. Rather, under 20 plaintiff's allegations, Synchrony is a "creditor" within the FDCPA's meaning. In turn, 21 plaintiff explicitly alleges that Pritzkau is employed by Synchrony, and he alleges by 22 implication that Veley and Rath work for Synchrony as well. As officers or employees 23 of a "creditor," defendants are not "debt collectors," notwithstanding their alleged 24 attempts to collect the disputed amount from plaintiff. 25 As plaintiff fails to allege that defendants are "debt collectors," he fails to state a 26 claim under the FDCPA. The Court cannot discern any other possible basis for federal 27 question jurisdiction. See 28 U.S.C. § 1331. Moreover, it is clear that diversity 28 jurisdiction is lacking. Diversity jurisdiction requires, inter alia, that the matter in 3 1 controversy exceed $75,000. 28 U.S.C. § 1332(a). Plaintiff alleges, at most, damages of 2 a few thousand dollars. 3 4 5 6 III. Conclusion Plaintiff fails to allege federal question jurisdiction, and diversity jurisdiction is plainly lacking. He has had three opportunities to allege a sufficient basis for federal 7 jurisdiction. It does not appear possible for him to do so. Accordingly, petitioner's IFP 8 application should be denied and this action dismissed without leave to amend. See 9 Lopez, 203 F.3d at 1130-31. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?