Ellis et al v. Madoff et al

Filing 4

ORDER (1) Denying (Doc. 2 ) Motion for Leave to Proceed in Forma Pauperis Without Prejudice; (2) Directing Plaintiff to Pay the Filing Fee; Denying (Doc. 3 ) Motion to Appoint Counsel Without Prejudice. If Plaintiff seeks to continue with this act ion, he must, no later than 30 days from the date this Order is filed, pay the $350.00 filing fee. If Plaintiff fails to comply with this Order, the Court will dismiss the case. Signed by Judge Marilyn L. Huff on 6/21/2010. (All non-registered users served via U.S. Mail Service)(cap)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BERNARD L. MADOFF; INVESTMENT SECURITIES LLC; PIONEER INVESTMENT FIRM; AMSOUTH BANK; REGIONS BANK; DEPOSIT GUARANTY NATIONAL BANK; UNITED STATES SECURITIES AND EXCHANGE COMMISSION; THADARINE MCINTOSH; MOODY RATING AGENCY; FITCH RATING LTD; STANDARD AND POOR'S RATING AGENCY, Defendants. On June 17, 2010, Plaintiff Lamar Ellis, proceeding pro se, filed a complaint in this action against Defendants Bernard Madoff, Investment Securities LLC, Pioneer Investment LAMAR ELLIS; DR. LAMAR ELLIS CHARITABLE REMAINDER TRUST; LAMAR ELLIS' TRUST; LAMAR ELLIS REVOCABLE TRUST; LAMELLI LTD PARTNERSHIP; and ENERGETIC PSYCHOANALYTIC INSTITUTE AND TRAINING SCHOOL INC, vs. Plaintiffs, CASE NO. 10-CV-1295-H (JMA) ORDER (1) DENYING WITHOUT PREJUDICE MOTION TO PROCEED IN FORMA PAUPERIS; (2) DIRECTING PLAINTIFF TO PAY THE FILING FEE; AND (3) DENYING WITHOUT PREJUDICE MOTION TO APPOINT COUNSEL

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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10cv1295

1 Firm, Amsouth Bank, Regions Bank, Deposit Guaranty National Bank, United States 2 Securities and Exchange Commission, Thadarine McIntosh, Moody Rating Agency, Fitch 3 Rating Ltd., and Standard and Poor's Rating Agency, alleging that Defendants traded 4 Plaintiffs' assets without permission, which resulted in a $13,000,000,000 loss to Plaintiffs.1 5 (Doc. No. 1.) Plaintiff Lamar Ellis also filed a motion for leave to proceed in forma pauperis 6 and a motion to appoint counsel. (Doc. Nos. 2 & 3.) For the following reasons, the Court 7 DENIES Plaintiff's motion to proceed in forma pauperis, DENIES the motion for appointment 8 of counsel, and directs Plaintiff to pay the court filing fee. 9 Discussion

10 I. Motion to Proceed in Forma Pauperis 11 All parties instituting any civil action, suit or proceeding in a district court of the United

12 States, except an application for writ of habeas corpus, must pay a filing fee of $350.00 See 13 28 U.S.C. § 1915(a). An action may proceed despite a plaintiff's failure to prepay the entire 14 fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 15 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The benefit of 16 proceeding in forma pauperis is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 17 1231 (9th Cir. 1984). As 28 U.S.C. § 1915(a)(1) states, in part: Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an 19 affidavit that includes a statement of all assets such person possesses that the person is unable to pay such fees or give security therefor. 20 28 U.S.C. § 1915(a)(1). 21 A petitioner need not "be absolutely destitute to enjoy the benefit of this statute." 22 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); Jefferson v. United 23 States, 277 F.2d 723, 725 (9th Cir. 1960), cert. denied, 364 U.S. 896 (1960). He must, 24 however, demonstrate his poverty with "some particularity, definiteness, and certainty." 25 18 26 The complaint also names as co-Plaintiffs Dr. Lamar Ellis Charitable Remainder Trust, Lamar Ellis' Trust, Lamar Ellis Revocable Trust, Lamelli LTD Partnership, and Energetic 27 Psychoanalytic Institute and Training School Inc., however, these entities are not represented 28 by counsel.
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1 United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (per curiam). 2 The Court notes that the complaint names as Defendants, among others, Bernard

3 Madoff and various investment entities. (Doc. No. 1.) Plaintiff has alleged that he and his co4 Plaintiffs suffered a loss in the amount of $13 billion dollars. (Id.) However, in this case, after 5 reviewing Plaintiff Lamar Ellis's affidavit, the Court concludes that Plaintiff has not made an 6 adequate showing that he is unable to pay the filing fee.2 (Doc. No. 2.) Plaintiff Lamar Ellis 7 is not incarcerated, and currently receives a total of $4,262.00 per month in the form of social 8 security, civil service disability, and VA disability payments. (Id. at 1-2.) Plaintiff's affidavit 9 also indicates that his checking account balance is approximately $1100.00. (Id. at 2.) Under 10 these facts, the Court is not persuaded that Plaintiff Lamar Ellis is unable to pay the filing fee 11 from his available funds. Accordingly, the Court DENIES without prejudice Plaintiff's motion 12 for leave to proceed in forma pauperis, and directs Plaintiff to pay the $350.00 filing fee. 13 II. Motion to Appoint Counsel 14 In an in forma pauperis action, a district court "may request an attorney to represent any

15 person unable to afford counsel." 28 U.S.C. § 1915(e)(1). The decision whether to appoint 16 counsel is within the discretion of the court and is "granted only in exceptional circumstances." 17 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting 18 Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). In exercising its discretion, the 19 court must consider three factors: "(1) the plaintiff's financial resources, (2) the efforts made 20 by plaintiff to secure counsel, and (3) whether the plaintiff's claim has merit." Bradshaw 21 v. Zoological Soc. of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981). Because the Court 22 denies Plaintiff's motion to proceed in forma pauperis, the Court also DENIES without 23 prejudice Plaintiff's motion for appointment of counsel. 24 III. Appearance by Non-Individuals 25 In additional to the individual Plaintiff Lamar Ellis, the complaint also names as co-

26 Plaintiffs several non-individuals entities, including Dr. Lamar Ellis Charitable Remainder 27 28
2

None of the non-individual Plaintiffs submitted IFP affidavits.
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1 Trust, Lamar Ellis' Trust, Lamar Ellis Revocable Trust, Lamelli LTD Partnership, and 2 Energetic Psychoanalytic Institute and Training School Inc. (Doc. No. 1.) Civil Local Rule 3 83.3 states, in pertinent part, that 4 5 6 7 8 Only natural persons representing their individual interests in propria persona may appear in court without representation by an attorney permitted to practice pursuant to Civil Local Rule 83.3. All other parties, including corporations, partnerships and other legal entities, may appear in court only through an attorney permitted to practice pursuant to Civil Local Rule 83.3. CivLR 83.3(k). Local Rules also provide that a person appearing pro se must appear

9 personally for such purpose and may not delegate that duty to any other person, including 10 husband or wife, or another party on the same side appearing without an attorney. CivLR 11 83.11(a). The Court notes that the named non-individual Plaintiffs are not represented by an 12 attorney, and that the individual Plaintiff, Lamar Ellis, is not allowed to appear on behalf of 13 these entities. 14 15 Conclusion For the reasons above, the Court DENIES without prejudice Plaintiff's motion for leave

16 to proceed in forma pauperis, and DENIES without prejudice Plaintiff's motion for 17 appointment of counsel. If Plaintiff seeks to continue with this action, he must, no later than 18 30 days from the date this Order is filed, pay the $350.00 court filing fee. If Plaintiff fails to 19 comply with this Order, the Court will dismiss the case. 20 IT IS SO ORDERED. 21 DATED: June 21, 2010 22 23 24 25 26 27 28
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______________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT