Tuck v. Collection at Law, Inc. et al

Filing 6

ORDER Denying Renewed Application to Proceed In Forma Pauperis [Doc. No. 5 ]. Signed by Judge Cathy Ann Bencivengo on 10/26/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 SOUTHERN DISTRICT OF CALIFORNIA ZACH TUCK, Case No.: 3:17-cv-1556-CAB-(BLM) Plaintiff, 9 10 v. 11 ORDER DENYING RENEWED APPLICATION TO PROCEED IN FORMA PAUPERIS COLLECTION AT LAW, INC., et al., Defendants. 12 [Doc. No. 5] 13 14 15 This matter is before the Court on Plaintiff’s renewed application to proceed in forma 16 pauperis (the “Renewed IFP Application”). [Doc. No. 5.] For the following reasons, the 17 application is denied. 18 Generally, all parties instituting a civil action in this court must pay a filing fee. See 19 28 U.S.C. § 1914(a); CivLR 4.5(a). However, pursuant to 28 U.S.C. § 1915(a), the court 20 may authorize the commencement, prosecution or defense of any suit without payment of 21 fees if the plaintiff submits an affidavit, including a statement of all his or her assets, 22 showing that he or she is unable to pay filing fees or costs. “An affidavit in support of an 23 IFP application is sufficient where it alleges that the affiant cannot pay the court costs and 24 still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 25 2015). “[A] plaintiff seeking IFP status must allege poverty with some particularity, 26 definiteness and certainty.” Id. (internal quotation marks omitted). The granting or denial 27 of leave to proceed IFP in civil cases is within the sound discretion of the district court. 28 Venerable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 1 3:17-cv-1556-CAB-(BLM) 1 On August 1, 2017, Plaintiff, a non-prisoner, filed the complaint in this case for 2 violations of the Telephone Consumer Practices Act, Fair Debt Collection Practices Act, 3 Fair Credit Reporting Act, and California Rosenthal Fair Debt Collection Practices Act. 4 [Doc. No. 1.] Plaintiff also filed an application to proceed IFP (the “Original IFP 5 Application”). [Doc. No. 2.] The Original IFP Application stated that Plaintiff had no 6 income, no assets, and $450 in monthly expenses, including $250 in rent, and also stated 7 that Plaintiff lives with his mother who loans him money every month to “get by” and 8 “survive.” [Id. at 5.] In an order denying the Original IFP Application, the Court noted 9 that it was unclear why and how Plaintiff paid his mother rent if he relied on her money to 10 survive. Thus, the Court denied Plaintiff’s request to proceed IFP for lack of “particularity, 11 definiteness and certainty” in the information provided and because the Court was not 12 persuaded that Plaintiff lacks the funds to pay the filing fee and “still afford the necessities 13 of life.” Escobedo, 787 F.3d at 1234. 14 Now, in his Renewed IFP Application, Plaintiff provides a declaration with a lengthy 15 account of his current family situation. Although Plaintiff appears to believe that his 16 declaration clarifies why he cannot afford to pay the filing fee, the Court finds that the 17 declaration at best muddies the waters about Plaintiff’s financial status, and at worst 18 demonstrates that Plaintiff perjured himself on his original application and in fact has the 19 means to pay the filing fee. The new information in the Renewed IFP Application that 20 conflicts with the Original IFP Application includes: 21  Plaintiff owns two classic cars [Doc. No. 5 at 4], neither of which was listed in the 22 Original IFP Application. Although Plaintiff explains that these cars are not running 23 and that it would not “be cost effective” to sell them in the condition they are 24 currently in, he also states that he has sold one of his classic cars in the past and has 25 experience restoring such cars. [Id. at 5] 26  Plaintiff does not pay rent to his mother or, presumably, to anyone else. [Id. at 5] 27  Plaintiff declares that he trades “care giving for [his] mom for cash and credit card 28 purchases, gas, food and other things [he] need[s] throughout the month.” [Id.] The 2 3:17-cv-1556-CAB-(BLM) 1 Original IFP Application made no mention of this income that Plaintiff receives from 2 his mother. Meanwhile, according to her declaration accompanying the Renewed 3 IFP Application, Plaintiff’s mother, Janice Tuck, “loans” him between $600 and 4 $900 per month, provides him housing, and loans him her vehicle. [Id. at 7.]  Plaintiff also does odd jobs for neighbors and is paid in cash. [Id. at 7.] 5 6 In addition to the foregoing, Plaintiff’s declaration includes vague references to “one 7 or more” consumer credit cases filed in this Court. This is an understatement to say the 8 least. As Judge Bashant recently noted, Plaintiff’s family “appear to have developed a 9 cottage industry suing their creditors for violations of the TCPA, the FDCPA and the 10 FCRA. In each case, the parties request to proceed IFP, listing liabilities that far exceed 11 assets. Curiously, however, despite the fact that they have received settlements from 12 approximately a dozen different defendants, their assets and cash in their bank accounts 13 remained unchanged.” Tuck v. Pacer Service Ctr. U.S. Courts, Case No. 17cv1720-BAS- 14 KSC, 2017 WL 4050356, at *1 (S.D. Cal. Sept. 12, 2017). Judge Bashant then listed eleven 15 cases in this district where Roy Tuck, Deborah Tuck, and their son Richard Caruso settled 16 with defendants during the past two years. The address Plaintiff listed in his complaint 17 here is the same address used by the plaintiffs in each of the eleven cases, and at least ten 18 additional cases have been filed in this district over the past two years by the same plaintiffs 19 at this address.1 20 21 22 23 24 25 26 27 28 These cases include: Caruso v. Nat’l Recovery Agency, No. 16cv534-WQH-JMA (Complaint filed on March 2, 2016, and notice of voluntary dismissal with prejudice filed on August 22, 2016.); Caruso v. California Business Bureau, No. 16cv587-WQH-JMA (Complaint filed on March 8, 2016, and case closed on September 22, 2016 after joint motions to dismiss filed as to each defendant.); Caruso v. California Recovery Bureau, No. 16cv902-BTM-DHB (Complaint filed on April 14, 2016, and case settled at early neutral evaluation conference.); Caruso v. Nat’l Recovery Agency, No. 16cv1679-BAS-WVG (Complaint filed on June 29, 2016, and motion for judgment on pleadings granted on April 28, 2017.); Tuck v. HCC Surety Group et al., No. 16cv230-CAB-DHB (S.D. Cal.) (Complaint filed on January 29, 2016, and unopposed motion to dismiss granted on October 19, 2016); Tuck v. HCC Surety Group et al., No. 16cv231-CAB-DHB (S.D. Cal.) (Complaint filed on January 29, 2016, and unopposed motion to dismiss granted on October 19, 2016); Tuck v. Merchants Credit Association, No. 17cv626-BAS-MDD (S.D. Cal.) (Complaint filed on March 28, 2016, and case settled on August 22, 2017.); Tuck v. Credit One Bank, No. 17cv1346-WQH-BLM (S.D. Cal.) (Complaint filed on July 3, 2017, and case sua sponte dismissed for 1 3 3:17-cv-1556-CAB-(BLM) 1 For his part, including the instant case, Plaintiff has filed at least five additional 2 lawsuits against creditors in the past seven months.2 Notably, in each of these cases, 3 Plaintiff applied to proceed IFP while stating various amounts of monthly expenses in his 4 IFP applications, ranging from $450 in this case, to $550 in Case No. 17cv1595 and Case 5 No. 17cv1577, to $600 in Case No. 17cv884 and Case No. 17cv1555. Three of Plaintiff’s 6 other IFP applications remain pending; one has been denied. 7 In light of the foregoing, the Court remains unpersuaded that Plaintiff lacks the funds 8 to pay the filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. 9 Considering the discrepancies between Plaintiff’s two IFP applications in this case and the 10 quantity of cases filed (and settled) in this Court by Plaintiff along with others using the 11 address used by Plaintiff in his complaint, the Court does not find Plaintiff to be credible 12 in his claims of poverty and assertions that he is unable to afford the filing fee. Moreover, 13 Plaintiff’s admissions as to income received from his mother, combined with what appear 14 to be minimal living expenses, indicates that Plaintiff is in fact able to afford the filing fee. 15 Regardless, even if Plaintiff’s IFP application, viewed in isolation, might otherwise 16 justify allowing him to proceed IFP, IFP “status is a privilege which may be denied when 17 abused.” Toodle v. Jones, No. 02:09-CV-0944, 2009 WL 2230704, at *1 (W.D. Pa. July 18 23, 2009); cf. In re Sindram, 498 U.S. 177, 179–80 (1991) (“In order to prevent frivolous 19 petitions for extraordinary relief from unsettling the fair administration of justice, the Court 20 21 22 23 24 25 26 27 failure to sign the complaint.); Tuck v. Credit One Bank, No. 17cv1363-JLS-WVG (S.D. Cal.) (Complaint filed on July 3, 2017, and case has settled with settlement disposition conference set for November 29, 2017.); Tuck v. States Recovery Sys., Inc., No. 17cv1813-GPC-NLS (S.D. Cal.) (Complaint filed on September 7, 2017, and IFP denied on October 5, 2017.) 2 The other four cases are: Tuck v. Nat’l Credit Adjusters et al., No. 17cv884-DMS-BGS (S.D. Cal.) (Complaint filed on May 1, 2017, and application to proceed IFP remains pending.); Tuck v. Capitol One Bank et al., No. 17cv1555-BEN-AGS (S.D. Cal.) (Complaint filed on August 1, 2017, and application to proceed IFP remains pending); Tuck v. Paypal Credit, No. 17cv1577-AJB-JMA (S.D. Cal.) (Complaint filed on August 4, 2017, and application to proceed IFP remains pending); Tuck v. Wells Fargo Bank et al., No. 17cv1595-JAH-JLB (S.D. Cal.) (Complaint filed on August 8, 2017, and application to proceed IFP was denied on October 20, 2017). 28 4 3:17-cv-1556-CAB-(BLM) 1 has a duty to deny in forma pauperis status to those individuals who have abused the 2 system.”); Demos v. U.S. Dist. Court For E. Dist. of Washington, 925 F.2d 1160, 1160 (9th 3 Cir. 1991) (denying IFP applications because the petitioner had “abused the privilege of 4 filing petitions in forma pauperis in this court”); Johnson v. Irby, No. 1:09-CV-00003-MP- 5 AK, 2009 WL 1973510, at *3 (N.D. Fla. July 8, 2009) (“A court may deny IFP status 6 prospectively when ‘the number, content, frequency, and disposition’ of a litigant’s filings 7 show an abusive pattern.”) (quoting Hurt v. Social Security Administration, 544 F.3d 308, 8 310 (D.C. Cir. 2008)). The more than two dozen consumer credit cases filed by Plaintiff 9 and others at the same address in the past two years along with requests to proceed IFP is 10 an abuse of the IFP process. Accordingly, for all of these reasons, Plaintiff’s Renewed IFP 11 Application is DENIED. 12 It is therefore ORDERED that to proceed with this lawsuit, Plaintiff must pay the 13 filing fee no later than November 17, 2017. If the filing fee is not paid by that date, this 14 case will be closed without further order from the Court. 15 It is further ORDERED that if Plaintiff applies to proceed IFP in another case in 16 this district, he must attach a copy of this order to his IFP application. Failure to include 17 this order with any IFP application filed after the date of this order will be considered 18 contempt of this order and subject Plaintiff to sanctions. Plaintiff is further reminded that 19 an IFP application is made under penalty of perjury, and any false statements may result 20 in dismissal of claims, imprisonment, or a fine. See 18 U.S.C. §§ 1621, 3571. 21 22 It is SO ORDERED. Dated: October 26, 2017 23 24 25 26 27 28 5 3:17-cv-1556-CAB-(BLM)

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