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