Pingrey v. Liberty Life Assurance Company of Boston

Filing 9

ORDER signed by District Judge Kimberly J. Mueller on 5/18/16 ORDERING the court's 5/9/16 order to show cause is DISCHARGED; Plaintiff's motion to proceed in forma pauperis is GRANTED; Plaintiff is directed to supply the U.S. Marshal, within fifteen (15) days, all information needed by the Marshal to effect service of process, and shall file a statement with the court that said documents have been submitted to the United States Marshal. (cc USM)(Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNA PINGREY,

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No. 2:16-cv-00254-KJM-CKD

Plaintiff,
v.

ORDER

LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,
Defendant.

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On May 9, 2016, the court ordered plaintiff Donna Pingrey to show cause why the

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case should not be dismissed for lack of subject matter jurisdiction. ECF No. 6. The court

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deferred consideration of Ms. Pingrey’s motion to proceed in forma pauperis (IFP) (ECF No. 2)

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pending her response to the court’s order. ECF No. 6. On May 13, 2016, Ms. Pingrey responded

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to the court’s order and filed a first amended complaint, which included additional allegations

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regarding jurisdiction. ECF Nos. 6 & 7. Specifically, the first amended complaint alleges the

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benefit amount at issue exceeds $114,000, First Am. Compl. ¶¶ 23 & 38, defendant is

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incorporated in Massachusetts with its principal place of business in New Hampshire, id. ¶ 2, and

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plaintiff is a resident of California, id. ¶ 1. The court finds plaintiff has sufficiently pleaded

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diversity-of-citizenship jurisdiction under 28 U.S.C. § 1332. Accordingly, the court

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DISCHARGES its May 9, 2016 order to show cause.
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The court next considers plaintiff’s motion to proceed IFP (ECF No. 2). A party

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instituting a civil action in a United States district court, except for an application for a writ of

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habeas corpus, must pay a filing fee of $400.00. 28 U.S.C. § 1914. If a party, however, is

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granted leave to proceed IFP, an action may proceed without prepaying the entire fee. See

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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). To qualify for IFP status, a party need

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not show that he or she is entirely destitute. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.

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331, 339–40 (1948). Yet, “the same even-handed care must be employed to assure that federal

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funds are not squandered to underwrite, at public expense, either frivolous claims or the

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remonstrances of a suitor who is financially able, in whole or in material part, to pull his own

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oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

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Here, plaintiff is entitled to IFP status. In the application to proceed without

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prepayment of fees and affidavit, form number AO 240, plaintiff, under penalty of perjury, states

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she receives only $431.00 in retirement income each month, and has been using her $4,000 in

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savings to supplement her income. ECF No. 2; see also ECF No. 5. Her only other assets are a

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2006 Ford Focus and an individual retirement account of $17,761. ECF No. 2. Accordingly,

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based on these circumstances, the court finds plaintiff qualifies for IFP status.

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For the foregoing reasons, the court orders as follows:

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1. The court’s May 9, 2016 order to show cause is DISCHARGED.

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2. Plaintiff’s motion to proceed in forma pauperis is GRANTED.

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3. Service is appropriate for the named defendant.

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4. The Clerk of the Court is directed to issue forthwith, and the U.S. Marshal is

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directed to serve within ninety (90) days of the date of this order, all process

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pursuant to Federal Rule of Civil Procedure 4, including a copy of this court’s

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status order, without prepayment of costs.

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5. The Clerk of the Court shall send plaintiff one USM-285 form for each named

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defendant, one summons, a copy of the complaint, an appropriate form for

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consent to trial by a magistrate judge, and this court’s status order.

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/////
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6. Plaintiff is directed to supply the U.S. Marshal, within fifteen (15) days from

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the date this order is filed, all information needed by the Marshal to effect

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service of process, and shall file a statement with the court that said documents

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have been submitted to the United States Marshal. The court anticipates that,

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to effect service, the U.S. Marshal will require at least:

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a. One completed summons for each defendant;

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b. One completed USM-285 form for each defendant;

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c. One copy of the endorsed filed complaint for each defendant, with an

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extra copy for the U.S. Marshal;

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d. One copy of this court’s status order for each defendant; and

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e. One copy of the instant order for each defendant.

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6. In the event the U.S. Marshal is unable, for any reason whatsoever, to

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effectuate service on any defendant within ninety (90) days from the date of

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this order, the Marshal is directed to report that fact, and the reasons for it, to

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the undersigned.

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7. The Clerk of the Court is directed to serve a copy of this order on the U.S.
Marshal, 501 “I” Street, Sacramento, CA, 95814, Tel. No. [phone].
IT IS SO ORDERED.
DATED: May 18, 2016

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UNITED STATES DISTRICT JUDGE

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