Jones v Shellpoint Mortgage Servicing, LLC

Filing 3

ORDER signed by District Judge Kimberly J. Mueller on 04/12/17 ORDERING that the 2 Motion to Proceed IFP is GRANTED. (Benson, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES JONES, an individual, 12 Plaintiff, 13 14 15 16 17 No. 2:17-cv-00689-KJM-AC v. ORDER SHELLPOINT MORTGAGE SERVICING, LLC, a corporation; EXPERIAN INFORMATION SOLUTIONS, INC, a corporation; EQUIFAX INFORMATION SERVICES LLC, a limited liability company; TRANS UNION LLC, a limited liability company, 18 Defendants. 19 20 Plaintiff Charles Jones filed this action against defendants on March 30, 2017. 21 22 ECF No. 1. Plaintiff requests permission to proceed in forma pauperis (IFP). ECF No. 2. As 23 explained below, the court GRANTS plaintiff’s request. 24 I. 25 26 DISCUSSION A party instituting a civil action in a United States district court, except for an application for a writ of habeas corpus, must pay a filing fee of $350.00. 28 U.S.C. § 1914. 27 28 1 1 Under 28 U.S.C. § 1915(a), a person1 may commence an action without paying the filing fees 2 where she submits an affidavit stating that she lacks sufficient funds and where her suit is not 3 frivolous or malicious. Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The IFP 4 statute does not itself define what constitutes insufficient assets. Escobedo v. Applebees, 787 5 F.3d 1226, 1234 (9th Cir. 2015). To qualify for IFP status, a party need not show she is entirely 6 destitute. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948); Jefferson v. 7 United States, 277 F.2d 723, 725 (9th Cir. 1960). An affidavit in support of an IFP application is 8 sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities 9 of life. Adkins, 335 U.S. at 339. But “[i]f an applicant has the wherewithal to pay court costs, or 10 some part thereof, without depriving himself and his dependents (if any there be) of the 11 necessities of life, then he should be required . . . to put his money where his mouth is.” Williams 12 v. Latins, 877 F.2d 65 (9th Cir. 1989) (internal quotations omitted). A plaintiff seeking IFP status 13 must allege poverty “with some particularity, definiteness and certainty.” United States v. 14 McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (internal quotation marks omitted). 15 Here, plaintiff is entitled to IFP status. In the application to proceed without 16 prepayment of fees and affidavit, form number AO 240, plaintiff, under penalty of perjury, 17 explains he has a total of $30 in savings; has no income; has no employment; and has no other 18 property of value. ECF No. 2. Although he has counsel, the IFP statute nowhere requires a 19 litigant to proceed pro se to qualify for IFP status. See 28 U.S.C. § 1915(a); Kwan v. Schlein, 246 20 F.R.D. 447, 453 (S.D.N.Y. 2007) (“[A]uthorization to commence litigation without the 21 prepayment of fees is based on the resources of the litigant and not on whether she has obtained 22 counsel.”); see also Cottingham for Washington v. Bd. of Educ. of Emery Uniified Sch. Dist., C- 23 93-0824-DLJ, 1993 WL 79698, at *1 (N.D. Cal. Mar. 15, 1993) (considering plaintiffs’ request, 24 although represented by counsel, to proceed IFP). Absent evidence that plaintiff paid counsel to 25 represent him here, the court assumes the veracity of plaintiff’s declaration that he lacks the funds 26 27 28 1 All persons, not just prisoners, may seek IFP status. Andrews v. Cervantes, 493 F.3d 1047, 1051 n.1 (9th Cir. 2007) (citing Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (explaining that the statute applies to all persons notwithstanding its “prisoner possesses” language, and collecting cases so holding). 2 1 to pay filing fees to proceed. See Kwan, 246 F.R.D. at 453 (“[Unless] payments by Kwan to her 2 attorney demonstrate that she is no longer indigent, there is no basis for reconsidering her in 3 forma pauperis status.”). Accordingly, based on these circumstances, the court finds plaintiff 4 qualifies for IFP status. 5 II. 6 7 8 9 CONCLUSION For the foregoing reasons, the court GRANTS plaintiff’s motion to proceed in forma pauperis. IT IS SO ORDERED DATED: April 12, 2017. 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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