Ray v. Musaelian et al

Filing 3

ORDER (1) Granting 2 Motion to Proceed in forma pauperis and (2) Dismissing Complaint without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court sua sponte dismisses the Complaint. igned by Judge Dana M. Sabraw on 12/7/2017. (All non-registered users served via U.S. Mail Service)(aef)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

FRANK G. RAY,
Plaintiff,

13
14
15
16

v.
ANDREW MUSAELIAN, LISA
GIACOMINI, and DOES 1-10,
inclusive,
Defendants.

17

Case No. 17-cv-2377 DMS (MDD)
ORDER (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS AND (2) DISMISSING
COMPLAINT WITHOUT
PREJUDICE FOR FAILING TO
STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED
PURSUANT TO 28 U.S.C. §
1915(e)(2)(B)(ii)

18
19

Plaintiff Frank G. Ray, proceeding pro se, has filed a Complaint against

20

Defendants Andrew Musaelian and Lisa Giacomini, alleging the following four

21

claims for relief: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”),

22

15 U.S.C. § 1692 et seq., (2) violation of the Federal Trade Commission Act

23

(“FTCA”), 15 U.S.C. § 45, (3) injunctive relief under the FTCA, 15 U.S.C. § 53(b),

24

and (4) equitable relief under the FTCA, 15 U.S.C. §§ 53(b) & 57b. Plaintiff has

25

not paid the $400 civil filing fee required to commence this action, but rather, has

26

filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. §

27

1915(a).

28
–1–

17-cv-2377 DMS (MDD)

1

A.

Motion to Proceed IFP

2

Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of

3

a suit without prepayment of fees if a plaintiff submits an affidavit, including a

4

statement of all his assets, showing that he is unable to pay filing fees. See 28 U.S.C.

5

§ 1915(a). Here, Plaintiff has submitted an affidavit which sufficiently shows that

6

he lacks the financial resources to pay filing fees. Accordingly, Plaintiff’s motion

7

to proceed IFP is granted.

8

B.

Sua Sponte Screening

9

Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is

10

subject to a mandatory and sua sponte review and dismissal by the Court, if it finds

11

the Complaint is “frivolous, malicious, failing to state a claim upon which relief may

12

be granted, or seeking monetary relief from a defendant immune from such relief.”

13

28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

14

(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).

15

Plaintiff’s first claim for relief is for violation of the FDCPA. The FDCPA

16

prohibits debt collectors from engaging in abusive, deceptive, and unfair practices

17

in the collection of consumer debts. 15 U.S.C. § 1692. To state a claim under the

18

FDCPA, a plaintiff must allege the following: “(1) the plaintiff has been the object

19

of collection activity arising from a consumer debt, (2) the defendant attempting to

20

collect the debt qualifies as a debt collector under the FDCPA, and (3) the defendant

21

has engaged in a prohibited act or has failed to perform a requirement imposed by

22

the FDCPA.” Miner v. Baker, No. 15-CV-2765-JAH (RBB), 2016 WL 6804440, at

23

*2 (S.D. Cal. Aug. 26, 2016) (citation omitted). Here, Plaintiff has not pleaded

24

sufficient facts to allege any of the requisite elements to state a claim under the

25

FDCPA. For example, Plaintiff has failed to plead Defendants are “debt collectors”

26

and the existence of a “consumer debt” within the meaning of the FDCPA. Plaintiff

27

merely alleges in a conclusory manner that Defendants violated the FDCPA by

28

making false, deceptive, or misleading representations in connection with the
–2–

17-cv-2377 DMS (MDD)

1

collection of a debt. Plaintiff, however, does not sufficiently allege any facts

2

supporting these assertions. Accordingly, this claim is dismissed without prejudice.

3

Plaintiff’s second claim is for violation of the FTCA, and the third and fourth

4

claims are for injunctive and equitable reliefs under the FTCA. The FTCA prohibits

5

“[u]nfair methods of competition in or affecting commerce, and unfair or deceptive

6

acts or practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C.

7

§ 45(a)(1). Private litigants, however, “may not invoke the jurisdiction of the federal

8

district courts by alleging that defendants engaged in business practices proscribed

9

by [the FTCA]. The Act rests initial remedial power solely in the Federal Trade

10

Commission.” Dreisbach v. Murphy, 658 F.2d 720, 730 (9th Cir. 1981); see Kerr v.

11

Am. Home Mortg. Serv’g, Inc., No. 10-cv-1612 BEN (AJB), 2010 U.S. Dist. LEXIS

12

100076, at *7, 2010 WL 3743879 (S.D. Cal. Sep. 22, 2010) (stating that “[i]t is well-

13

established that there is no private right of action for violation of the FTCA; only the

14

Federal Trade Commission has standing to enforce it”). Because there is no private

15

right of action under the FTCA, these claims are dismissed with prejudice.

16

Accordingly, the Court sua sponte dismisses the Complaint.

17
18

IT IS SO ORDERED.
Dated: December 7, 2017

19
20
21
22
23
24
25
26
27
28
–3–

17-cv-2377 DMS (MDD)