Tuck v. Credit One Bank et al
Filing
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ORDER Granting 2 Motion to Proceed In Forma Pauperis and Directing US Marshal shall effect service of complaint. Signed by Judge Janis L. Sammartino on 8/1/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (dxj)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DEBORAH TUCK,
Case No.: 17cv1363-JLS (WVG)
Plaintiff,
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ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DIRECTING U.S. MARSHAL
TO EFFECT SERVICE
v.
CREDIT ONE BANK, et al.,
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Defendants.
(ECF No. 2)
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Presently before the Court is Plaintiff Deborah Tuck’s Motion for Leave to Proceed
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In Forma Pauperis (“IFP Mot.”), (ECF No. 2), filed concurrently with her Complaint for
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damages and injunctive relief stemming from Defendants’ alleged violations of the
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Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.; Fair Debt
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Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.; Fair Credit Reporting Act
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(“FCRA”), 15 U.S.C. § 1681 et seq.; and Rosenthal Fair Debt Collection Practices Act
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(“RFDCPA”), California Civil Code § 1788 et seq., (ECF No. 1).
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IFP MOTION
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All parties instituting any civil action, suit, or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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17cv1363-JLS (WVG)
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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay
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the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 28 U.S.C.
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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court
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may authorize the commencement of an action without the prepayment of fees if the party
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submits an affidavit, including a statement of assets, showing that she is unable to pay the
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required filing fee. 28 U.S.C. § 1915(a).
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In the present case, Plaintiff has submitted an affidavit indicating that her sole
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sources of monthly income constitute $400 of monthly alimony payments and her spouse’s
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$476 of monthly disability benefits. (IFP Mot. 2–3.) Plaintiff is not employed, nor has she
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been for the past two years, and Plaintiff and her spouse each have only $250 in their
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respective checking accounts. (Id. at 2.) Plaintiff estimates her monthly expenses total
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$1,445, (see id. at 4), and, although Plaintiff owns two automobiles together worth $2,000,
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(id. at 3), Plaintiff in a supplemental statement notes many further financial complications,
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(Re: In Forma Pauperis Financial Explanation 1–2, ECF No. 2-1 (listing complications
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which include that (1) Plaintiff’s is injured such that she “will be unable to work the rest
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of [her] life[;]” (2) Plaintiff is the primary caregiver “for [her] husband[’]s 88[-]year[-]old
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mother and 64[-]year[-]old sister[;]” and (3) Plaintiff and her husband’s “joint bank
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account is presently overdrawn by . . . $235[,]” which “happens more often than not when
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[Plaintiff and her husband] need money desperately before the 1st of the month”). Given
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the foregoing, the Court concludes that Plaintiff’s application demonstrates she is unable
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to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiff’s Motion to
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Proceed IFP.
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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
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The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)
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and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief
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may be granted,” or “seeks monetary relief against a defendant who is immune from relief.”
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28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)
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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.
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17cv1363-JLS (WVG)
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Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e)
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“not only permits but requires a district court to dismiss an in forma pauperis complaint
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that fails to state a claim”).
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As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)
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mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915
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make and rule on its own motion to dismiss before directing the Marshal to effect service
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pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette
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v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal.
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Jan. 9, 2013).
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All complaints must contain a “short and plain statement of the claim showing that
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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
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Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a complaint
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states a plausible claim is context-specific, requiring the reviewing court to draw on its
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experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 U.S. at
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556).
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“When there are well-pleaded factual allegations, a court should assume their
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veracity, and then determine whether they plausibly give rise to an entitlement of relief.”
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Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court
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must accept as true all allegations of material fact and must construe those facts in the light
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most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see
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also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152
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F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the
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language of Federal Rule of Civil Procedure 12(b)(6).”).
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“While factual allegations are accepted as true, legal conclusions are not.” Hoagland
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v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012)
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(citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a
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17cv1363-JLS (WVG)
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complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal, 556
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U.S. at 679).
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In the present case, Plaintiff alleges sufficient factual matter to survive the sua sponte
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screening. For example, Plaintiff alleges “sixteen illegal consumer debt collection calls to
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her private emergency cell phone number[,]” even though Plaintiff allegedly “never
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g[a]v[e] Defendant[s] . . . express written permission to call Plaintiff[’]s . . . emergency
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cellular phone” and notified Defendants “numerous” times of Plaintiff’s “demand[] not to
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call Plaintiff’s cell phone after receiving the very first illegally placed call.” (Compl. ¶¶ 33,
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35, 41; see also Compl. Exs. A–D (written letters disputing debt).) This information, and
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the rest of the information contained in the Complaint, is sufficient to put Defendants on
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notice of the specific allegations against them and the relevant time period during which
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the allegedly liability-creating events occurred.
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However, the Court notes that this case appears very similar to at least seven other
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cases filed by this exact same litigant in our district. See, e.g., Tuck v. Midland Credit
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Mgm’t Inc. et al, 15cv2036-MMA (MDD); Tuck v. Am. Capitol Enters. et al, 15cv2042-
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CAB (RBB); Tuck v. HCC Surety Grp. et al., 16cv231-CAB (DHB); Tuck v. Portfolio
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Recovery Assocs., LLC et al., 16cv684-JAH (BGS); Tuck v. Merrick Bank Corp. et al.,
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16cv917-JAH (MDD); Tuck v. Cavalry Portfolio Servs. et al., 16cv918-AJB (MDD); Tuck
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v. Merchants Credit Ass’n, 17cv626-BAS (MDD). And Plaintiff is cautioned that the
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Court’s sua sponte screening is not a substitute for any dispositive motion any Defendant
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may elect to file, including one under Federal Rule of Civil Procedure 12(b)(6).
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CONCLUSION
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Given the foregoing, the Court:
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(1)
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(ECF Nos. 1, 2).
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(2)
GRANTS Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)
DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No.
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1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 (“USM Form
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285s”) for each named Defendant. In addition, the Clerk will provide Plaintiff with a
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17cv1363-JLS (WVG)
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certified copy of this Order, a certified copy of her Complaint, and the summons so that
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she may serve the Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete
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the USM Form 285s as completely and accurately as possible, include an address where
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each named Defendant may be found and/or subject to service, and return them to the
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United States Marshal according to the instructions the Clerk provides in the letter
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accompanying her IFP package.
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(3)
ORDERS the U.S. Marshal to serve a copy of the Complaint and summons
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upon Defendants as directed by Plaintiff on the USM Form 285s provided to her. All costs
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of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ.
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P. 4(c)(3).
(4)
ORDERS Defendants, once they have been served, to reply to Plaintiff’s
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Complaint within the time provided by the applicable provisions of Federal Rule of Civil
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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2).
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(5)
ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
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serve upon each Defendant, or if appearance has been entered by counsel, upon
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Defendants’ counsel, a copy of every further pleading, motion, or other document
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submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must
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include with every original document she seeks to file with the Clerk of the Court, a
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certificate stating the manner in which a true and correct copy of that document has been
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was served on Defendants or their counsel, and the date of that service. See S.D. Cal. Civ.
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L.R. 5.2. Any document received by the Court which has not been properly filed with the
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Clerk or which fails to include a Certificate of Service upon the Defendants, or their
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counsel, may be disregarded.
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IT IS SO ORDERED.
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Dated: August 1, 2017
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17cv1363-JLS (WVG)
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