James Evan Mendes v. Capital One Auto Finance et al

Filing 4

FINDINGS and RECOMMENDATIONS Denying Plaintiff's Motion to Proceed In Forma Pauperis and Dismissing the Action Without Prejudice, signed by Magistrate Judge Jennifer L. Thurston on 4/26/2021. Referred to District Judge. Objections to F&R due within 30 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES EVAN MENDES,
Plaintiff,

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v.

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CAPITAL ONE AUTO FINANCE, et al.,

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Defendants.

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Case No.: 1:21-cv-00664-NONE-JLT
FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS AND DISMISSING THE
ACTION WITHOUT PREJUDICE
[THIRTY-DAY OBJECTION DEADLINE]

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James Evan Mendes seeks to proceed pro se and in forma pauperis in this action alleging

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violations of the Fair Debt Collection Practices Act. (See Doc. 1.) The Court finds the plaintiff is

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unable to state a claim upon which relief may be granted, therefore, the Court recommends the

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plaintiff’s motion to proceed in forma pauperis be DENIED and the complaint be DISMISSED

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without prejudice as the Court lacks jurisdiction.

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I.

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Request to proceed in forma pauperis
As a general rule, all parties instituting any civil action, suit or proceeding in a United States

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District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the

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commencement of an action “without prepayment of fees or security therefor, by a person who

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submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” 28 U.S.C.

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§ 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if leave

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to proceed in forma pauperis is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1178, 1177
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(9th Cir. 1999).
The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of

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privilege and not a right; denial of an in forma pauperis status does not violate the applicant’s right to

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due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314

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F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to

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proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In

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making a determination, the court “must be careful to avoid construing the statute so narrowly that a

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litigant is presented with a Hobson’s choice between eschewing a potentially meritorious claim or

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foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).
The Court recommends the plaintiff’s application to proceed in forma pauperis be denied

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because, as discussed below, the complaint fails to state a meritorious claim upon which relief may be

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granted. See, e.g., Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (“A district court

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may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

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complaint that the action is frivolous or without merit”); Tripati v. First Nat’l Bank & Trust, 821 F.2d

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1368, 1369 (9th Cir. 1987) (same).

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II.

Screening Requirement
When an individual seeks to proceed in forma pauperis, the Court is required to review the

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complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious, or

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fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant

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who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2).
A plaintiff’s claim is frivolous “when the facts alleged rise to the level of the irrational or the

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wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”

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Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In other words, a complaint is frivolous where the

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litigant sets “not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke

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v. Williams, 490 U.S. 319, 325 (1989).

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III.

Pleading Standards

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General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A

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pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the
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claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may

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include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).
A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and

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succinct manner. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The

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purpose of the complaint is to inform the defendant of the grounds upon which the complaint stands.

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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

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Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.

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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague

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and conclusory allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982). The Court clarified further,

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[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is
not akin to a “probability requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’

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Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should

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assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal

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conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a

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complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith,

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203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

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IV.

Factual Allegations

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The dispute in this action relates to a debt owed on a vehicle. According to the plaintiff, around

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February 2016, an adhesion contract was entered with Capital One Auto Finance who allegedly falsely

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claimed they were the original creditor and loaned plaintiff money to purchase a vehicle. (Doc. 1 at 9.)

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Plaintiff reports that Capital One Auto Finance is a debt collector as stated in 15 U.S.C. § 1692a(6), and

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plaintiff claims that the alleged debt that is said to be owed has been paid in full. (Id.)
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Plaintiff alleges that Capital One Auto Finance is at fault for invading his “privacy as a

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consumer by using abusive debt practices and calling at inconvenient hours with the intent to annoy

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even after being told to not communicate by phone.” (Doc. 1 at 9.) Plaintiff alleges that Capital One

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Auto Finance was never given direct consent from him “to report profane, obscene and misleading

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information to all three major credit bureaus.” (Id. at 10.) Plaintiff claims that Capital One Auto

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Finance is at fault for breaking multiple federal violations pursuant to the Fair Debt Collection

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Practices Act. (Id.)
Based on documentation provided by the plaintiff, it appears that TransUnion conducted an

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investigation of the disputed item related to Capital One Auto Finance, and the results indicate that it

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was verified as accurate. (Doc. 1 at 30-35.) Specifically, the report states that “[w]e investigated the

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information you disputed and the disputed information was VERIFIED AS ACCURATE.” (Id. at 34.)

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V.

Discussion and Analysis

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A.

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Under the FDCPA, debt collectors are prohibited “from making false or misleading

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representations and from engaging in various abusive and unfair practices.” Heintz v. Jenkins, 514

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U.S. 291, 292 (1995); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010). To

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establish a violation of the FDCPA, plaintiff must show: (1) he was a consumer (2) who was the object

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of a collection activity arising from a consumer debt, and (3) the defendant is a “debt collector” as

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defined by the FDCPA, (4) who engaged in an act or omission prohibited by the FDCPA. Miranda v.

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Law Office of D. Scott Carruthers, 2011 U.S. Dist. LEXIS 55180, at *11 (E.D. Cal. May 23,

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2011), citing Turner v. Cook, 362 F.3d 1219, 1227-28 (9th Cir. 2004).

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Fair Debt Collection Practices Act

Based on the allegations in the complaint, it appears that the plaintiff adequately alleges that he

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is a consumer within the meaning of the FDCPA and that he was the object of a collection activity

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arising from a consumer debt. Related to the next element, plaintiff asserts that Capital One Auto

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Finance was a “debt collector” as defined by the act. (Doc. 1 at 9.) Capital One Auto Finance appears

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to fit the definition of this term as it appears at 15 U.S.C. § 1692a(6) (“any person who uses any

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instrumentality of interstate commerce or the mails in any business the principal purpose of which is

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the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts
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owed or due or asserted to be owed or due another”). However, the complaint fails to demonstrate that

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Capital One Auto Finance engaged in acts or omissions prohibited by the FDCPA. Based on

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documentation provided by the plaintiff, it appears that TransUnion conducted an investigation of the

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disputed item related to Capital One Auto Finance, and the report states that “[w]e investigated the

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information you disputed and the disputed information was VERIFIED AS ACCURATE.” (Doc. 1 at

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34.)
The plaintiff asserts that Capital One Auto Finance allegedly reported misleading information

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to the credit bureaus (Doc. 1 at 10), however, the credit bureau’s investigation results verified as

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accurate the disputed item related to Capital One Auto Finance. Taking into consideration the results

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of the credit bureau’s investigation and the other allegations provided in the complaint, the plaintiff

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fails to state a cognizable claim under the FDCPA. Therefore, the Court recommends that plaintiff’s

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complaint be DISMISSED.

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VI.

Findings and Recommendations

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Based upon the facts alleged, it does not appear the deficiencies can be cured by amendment,

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and granting leave to amend would be futile. See Lopez, 203 F.3d at 1130; See Noll v. Carlson, 809

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F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly, the Court RECOMMENDS:

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Plaintiff’s complaint be DISMISSED without prejudice;

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Plaintiff’s motion to proceed in forma pauperis (Doc. 3) be DENIED;

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The Clerk of Court be DIRECTED to close this action.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within thirty

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days after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.”

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Plaintiff is advised failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v.

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Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

April 26, 2021

_ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE

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