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)

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