Mercado et al v. National Relations Labor Board et al

Filing 12

ORDER Denying Without Prejudice Motion to Proceed in Forma Pauperis 5 ; Dismissing Without Prejudice the Amended Complaint 5 ; Denying Without Prejudice Motion to Appoint Counsel 3 ; and Denying as Moot Motion to Dismiss 6 .. Signed by Judge Gonzalo P. Curiel on 5/24/18.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALICIA MERCADO, et al.,

Case No.: 3:18-cv-00324-GPC-KSC
Plaintiffs,

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v.

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ORDER (1) DENYING WITHOUT
PREJUDICE MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 5];

NATIONAL LABOR RELATIONS
BOARD, et al.,

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Defendants.

(2) DISMISSING WITHOUT
PREJUDICE THE AMENDED
COMPLAINT;

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(3) DENYING WITHOUT
PRJEUDICE MOTION TO APPOINT
COUNSEL [ECF No. 3]; and

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(4) DENYING AS MOOT MOTION
TO DISMISS [ECF No. 6]

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Plaintiffs filed this case without paying the filing fee. (See ECF No. 1.) The same
day the case was filed, Plaintiff Mercado filed a motion to proceed in forma pauperis
(ECF No. 2) and a motion to appoint counsel (ECF No. 3). One of the many defendants
in this case has filed a motion to dismiss. (ECF No. 6.)
All parties instituting any non-habeas “civil action, suit, or proceeding” in a federal

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3:18-cv-00324-GPC-KSC

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district court must pay a filing fee of $400. See 28 U.S.C. § 1914(a).1 An action may

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proceed despite a plaintiff’s failure to prepay the entire fee only if the plaintiff is granted

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leave to proceed IFP under § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051

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(9th Cir. 2007). The plaintiff must submit an affidavit demonstrating her inability to pay

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the filing fee and including a complete statement of the plaintiff’s assets. 28 U.S.C.

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§ 1915(a)(1). When a plaintiff moves to proceed IFP, the court first “grants or denies IFP

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status based on the plaintiff’s financial resources alone and then independently

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determines whether to dismiss the complaint” pursuant to 28 U.S.C. § 1915(e)(2).

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Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984).

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In the motion to proceed in forma pauperis, Plaintiff Mercado indicates that she is

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employed by the Oceanside Unified School District. (ECF No. 2 at 2.) She does not,

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however, indicate her gross monthly pay from that employment. (Id.) Without knowing

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Plaintiff Mercado’s income amount, the Court cannot assess whether she can afford to

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pay the filing fee. The motion to proceed IFP is therefore DENIED WITHOUT

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PREJUDICE. Because no filing fee has been paid, and because no other plaintiff has

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filed a motion to proceed IFP, the operative amended complaint is DISMISSED

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WITHOUT PREJUDICE. The motion to appoint counsel is DISMISSED WITHOUT

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PREJUDICE. The motion to dismiss is DENIED AS MOOT.

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IT IS SO ORDERED.
Dated: May 24, 2018

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50.
See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
(eff. Dec. 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to
proceed IFP. Id.
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3:18-cv-00324-GPC-KSC