Ray v. Musaelian et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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FRANK G. RAY,
Plaintiff,
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v.
ANDREW MUSAELIAN, LISA
GIACOMINI, and DOES 1-10,
inclusive,
Defendants.
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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)
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Plaintiff Frank G. Ray, proceeding pro se, has filed a Complaint against
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Defendants Andrew Musaelian and Lisa Giacomini, alleging the following four
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claims for relief: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”),
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15 U.S.C. § 1692 et seq., (2) violation of the Federal Trade Commission Act
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(“FTCA”), 15 U.S.C. § 45, (3) injunctive relief under the FTCA, 15 U.S.C. § 53(b),
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and (4) equitable relief under the FTCA, 15 U.S.C. §§ 53(b) & 57b. Plaintiff has
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not paid the $400 civil filing fee required to commence this action, but rather, has
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filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. §
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1915(a).
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17-cv-2377 DMS (MDD)
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A.
Motion to Proceed IFP
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Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of
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a suit without prepayment of fees if a plaintiff submits an affidavit, including a
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statement of all his assets, showing that he is unable to pay filing fees. See 28 U.S.C.
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§ 1915(a). Here, Plaintiff has submitted an affidavit which sufficiently shows that
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he lacks the financial resources to pay filing fees. Accordingly, Plaintiff’s motion
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to proceed IFP is granted.
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B.
Sua Sponte Screening
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Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is
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subject to a mandatory and sua sponte review and dismissal by the Court, if it finds
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the Complaint is “frivolous, malicious, failing to state a claim upon which relief may
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be granted, or seeking monetary relief from a defendant immune from such relief.”
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28 U.S.C. § 1915(e)(2)(B); 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.”).
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Plaintiff’s first claim for relief is for violation of the FDCPA. The FDCPA
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prohibits debt collectors from engaging in abusive, deceptive, and unfair practices
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in the collection of consumer debts. 15 U.S.C. § 1692. To state a claim under the
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FDCPA, a plaintiff must allege the following: “(1) the plaintiff has been the object
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of collection activity arising from a consumer debt, (2) the defendant attempting to
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collect the debt qualifies as a debt collector under the FDCPA, and (3) the defendant
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has engaged in a prohibited act or has failed to perform a requirement imposed by
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the FDCPA.” Miner v. Baker, No. 15-CV-2765-JAH (RBB), 2016 WL 6804440, at
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*2 (S.D. Cal. Aug. 26, 2016) (citation omitted). Here, Plaintiff has not pleaded
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sufficient facts to allege any of the requisite elements to state a claim under the
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FDCPA. For example, Plaintiff has failed to plead Defendants are “debt collectors”
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and the existence of a “consumer debt” within the meaning of the FDCPA. Plaintiff
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merely alleges in a conclusory manner that Defendants violated the FDCPA by
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making false, deceptive, or misleading representations in connection with the
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17-cv-2377 DMS (MDD)
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collection of a debt. Plaintiff, however, does not sufficiently allege any facts
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supporting these assertions. Accordingly, this claim is dismissed without prejudice.
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Plaintiff’s second claim is for violation of the FTCA, and the third and fourth
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claims are for injunctive and equitable reliefs under the FTCA. The FTCA prohibits
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“[u]nfair methods of competition in or affecting commerce, and unfair or deceptive
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acts or practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C.
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§ 45(a)(1). Private litigants, however, “may not invoke the jurisdiction of the federal
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district courts by alleging that defendants engaged in business practices proscribed
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by [the FTCA]. The Act rests initial remedial power solely in the Federal Trade
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Commission.” Dreisbach v. Murphy, 658 F.2d 720, 730 (9th Cir. 1981); see Kerr v.
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Am. Home Mortg. Serv’g, Inc., No. 10-cv-1612 BEN (AJB), 2010 U.S. Dist. LEXIS
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100076, at *7, 2010 WL 3743879 (S.D. Cal. Sep. 22, 2010) (stating that “[i]t is well-
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established that there is no private right of action for violation of the FTCA; only the
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Federal Trade Commission has standing to enforce it”). Because there is no private
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right of action under the FTCA, these claims are dismissed with prejudice.
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Accordingly, the Court sua sponte dismisses the Complaint.
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IT IS SO ORDERED.
Dated: December 7, 2017
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17-cv-2377 DMS (MDD)
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