Chriswell v. Big Score Entertainment LLC

Filing 91

MEMORANDUM OPINION AND ORDER signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motion to dismiss 76 is denied, but the Court enters a monetary sanction against Chriswell as discussed. The Court will also recruit pro bono counsel from the Trial Bar to represent Chriswell. Status hearing of 07/18/2013 is reset to 08/22/2013 at 11:15 a.m.Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERICA CHRISWELL,
Plaintiff,
v.
BIG SCORE ENTERTAINMENT, LLC,
Defendant.

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No. 11 C 00861
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Erica Chriswell brought this pro se lawsuit against Defendant Big Score
Entertainment, alleging that she is a rap artist and that Big Score infringed upon her
trademark, “Eryka Kane,” by promoting another rapper, Arika Kane.1 Big Score now
moves to dismiss Chriswell’s complaint under 28 U.S.C. § 1915(e)(2)(A), claiming that
Chriswell failed to disclose certain assets and income on her in forma pauperis petition
and thus made an untrue allegation of poverty. R. 76, Def.’s 2d. Mot. Dismiss ¶ 53.2
For the reasons explained below, Big Score’s motion to dismiss [R. 76] is denied.
I. Background
Erica Chriswell is a performance artist who has allegedly used the trademarks
“Ms. Kane,” “Erika Kane,” “Eryka Kane,” and “Ms. Eryka Kane” since 1999. R. 11,
Compl. at 2; R. 49, Pl.’s 1st Resp. Br. ¶ 6. On April 26, 2010, she applied for the
trademark “Eryka Kane” with the U.S. Patent and Trademark Office (USPTO). Pl.’s

1

In this federal-question case, this Court has subject matter jurisdiction under 28 U.S.C.

§ 1331.
2

Citations to the docket are indicated by “R.” followed by the docket entry.

1st Resp. Br. ¶ 8. The USPTO approved the registration, because there were “no
conflicting marks,” on August 7, 2010. Id. But one month after that, the PTO notified
Chriswell that Big Score Entertainment had filed a prior pending application to
register the mark “Arika Kane.” Id. In December 2010, Big Score commenced a
trademark infringement action against Chriswell in the United States District Court
for the District of Connecticut (“Connecticut Action”). R. 44-1, Def.’s 1st Mot. Dismiss
at 5.
In February 2011, Chriswell filed a mirror-image lawsuit in this Court against
Big Score for allegedly infringing on the same mark in question in the Connecticut
Action. R. 1. She also filed an in forma pauperis application, requesting that she be
permitted to proceed without full payment of fees and that counsel be appointed for
her. R. 4, 5. The application required her to disclose, on an affidavit, certain financial
information, including any income or property she, or anyone living with her, received
or owned. R. 4. Chriswell reported in her financial affidavit that (1) she was
unemployed; (2) her father Dejean Chriswell received a monthly pension of $1600; (3)
she received $300/month in rental income; (4) she owned real property located at 29040
M140 Highway in Covert, Michigan;3 and (5) she and her father owned a 2009 Toyota
Camry. R. 76-1, Def.’s Exh. 1 (IFP Application).

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Chriswell initially listed this property’s address in her IFP application as 2090 M140
Highway, R. 76-1, Def.’s Exh. 1, which was later corrected as 29040 M140 Highway. R. 76-1,
Def.’s Group Exh. B.

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Before ruling on Chriswell’s petition to proceed in forma pauperis, the Court
ordered her to file a supplemental financial affidavit explaining whether she received
any income from her record sales. R. 8, Apr. 13, 2011 Minute Entry. Chriswell
submitted a supplemental affidavit reporting that she had no proceeds from record
sales and indeed had $104,784.22 in debt. R. 9, Pl.’s Supp. Aff. Although Chriswell
re-listed her father’s monthly pension income, the jointly owned 2009 Camry, and
ownership of 29040 M140 Highway on the supplemental affidavit, she did not re-report
the $300 rental income listed in her original in forma pauperis application. Id. And, for
the first time, she listed ownership of a property at 3834 Walnut Path in Lithonia,
Georgia. Id.
In light of the additional financial information, the Court granted Chriswell’s
motion to proceed in forma pauperis, waived the $350 filing fee, and allowed her to use
the United States Marshals Service to serve summons on Big Score. R. 10, Jan. 30,
2012 Minute Entry. For the time being, however, the Court denied Chriswell’s request
for recruitment of counsel, finding Chriswell competent to litigate the lawsuit by
herself at that stage of the litigation. Id.
In July 2012, Big Score moved to dismiss Chriswell’s complaint, alleging, among
other things, that Chriswell had failed to disclose certain assets in her IFP application.
Def.’s 1st Mot. Dismiss at 3-4. The Court denied this first motion (the current motion
is the second), finding that the record at that time did not demonstrate that Chriswell
had actually lied about her financial status. R. 57, Jan. 28, 2013 Order at 5. But

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because enough questions had been raised about the financial affidavit’s completeness,
the Court authorized Big Score to take additional discovery on the issue. Id. at 5-6.
Now, Big Score again moves to dismiss Chriswell’s complaint, this time alleging
that further discovery has revealed that Chriswell failed to disclose real estate
properties, corporate assets, vehicles, and income in her original IFP application and
supplemental financial affidavit. Def.’s 2d Mot. Dismiss ¶¶ 48-51. Specifically, Big
Score contends that Chriswell failed to disclose her ownership interest in the following
properties:
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75361 28th Avenue, Covert, Michigan;

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75633 C.R. 378, Covert, Michigan;

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32397 76th Street, Covert, Michigan;

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831 Washington Street, Bangor, Michigan;

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33400 Orchard Street, Covert, Michigan; and

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34800 M140 Highway, Covert, Michigan.

Id. ¶¶ 13-18. Big Score also alleges that Chriswell failed to disclose several sources of
income, including $285/month in Social Security payments, at least $430/month in
benefits from the State of Illinois, and $230/month in unemployment payments.
Id. ¶¶ 19-22; R. 76-1, Def.’s Exh. 6. Finally, Big Score asserts that Chriswell omitted
her ownership interest in a 1999 Chevrolet Tahoe, as well as $15,000 in corporate
assets belonging to a company, “Brickgame Entertainment, Inc.” Def.’s 2d Mot. Dismiss
¶¶ 23-29. In light of these omissions, Big Score argues that Chriswell’s complaint
should be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(A). Id. ¶ 31.
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II. Analysis
Litigants who cannot afford the filing fee for a federal case may still file a
lawsuit, so long as they submit an affidavit swearing to their inability to pay. See 28
U.S.C. § 1915(a)(1). The affidavit serves an important purpose: “The opportunity to
proceed in forma pauperis is a privilege provided for the benefit of indigent persons and
the court system depends upon the honesty and forthrightness of applicants to ensure
that the privilege is not abused.” Chung v. Dushane, 2003 WL 22902561, at *2 (N.D.
Ill. Dec. 9, 2003) (citing Denton v. Hernandez, 504 U.S. 25, 27 (1992)); see also Denton,
504 U.S. at 27 (§ 1915 “protects against abuses of this privilege” by providing for
dismissal where allegation of poverty is untrue). Thus, under § 1915(e)(2)(A), “the court
shall dismiss the case at any time if the court determines that the allegation of poverty
is untrue.” 28 U.S.C. § 1915(e)(2)(A) (emphasis added). Courts have interpreted this
statutory language to require dismissal whenever an allegation of poverty is found to
be untrue. See, e.g., McRoyal v. Commonwealth Edison Co., 263 F. App’x 500, 502 (7th
Cir. 2008); Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002);
Mathis v. New York Life Ins. Co., 133 F.3d 546, 547 (7th Cir. 1998) (per curiam). Thus,
if the Court were to find that Chriswell’s allegation of poverty is false, it would have
“no choice” but to dismiss her complaint; the only question would be whether to dismiss
with or without prejudice. Thomas, 288 F.3d at 306; Mullins v. Hallmark Data Sys.,
LLC, 511 F. Supp. 2d 928, 930 (N.D. Ill. 2007).
To determine ability to pay, the in forma pauperis application asks whether the
applicant is incarcerated, employed, or married; whether the applicant or anyone living
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in her residence has received more than $200 from any of various sources in the
previous twelve months, or if the applicant or a cohabitant has more than $200 in cash
or in a bank account, or any stocks, bonds, or securities; whether the applicant or
anyone living with the applicant owns any real estate, automobile, boat/trailer/mobile
home; and whether the applicant has any dependents. See IFP Application.
Here, Chriswell does not dispute that she did not list certain assets on her IFP
application and supplemental affidavit, nor does she contend that she did not
understand the IFP application. Rather, she offers a bevy of reasons why she believes
disclosure was not necessary: (1) the properties located at 75361 28th Avenue and
33400 Orchard Street were supposedly quit-claimed to her in error; (2) the properties
located at 75633 C.R. 378 and 32397 76th Street were foreclosed on for nonpayment
of taxes, and thus had been forfeited back to the State of Michigan; (3) the property
located at 831 Washington Street was condemned and forfeited back to the State of
Michigan; (4) the Social Security payments and State of Illinois payments belonged to
her father, who is not a party to this suit, and therefore she had no duty to disclose
these assets; (5) the unemployment benefits she received were so minimal that they do
not affect her indigence; (6) any ownership interest she had in Brickgame
Entertainment’s corporate assets ceased to exist when the corporation was voluntarily
dissolved in late 2010; and (7) the Chevrolet Tahoe was solely owned by her father,
Dejean Chriswell, as determined by the Cook County Circuit Court in an adverse claim
proceeding. R. 84, Pl.’s 2d Resp. Br. ¶¶ 11-26. In short, Chriswell concedes that certain

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information was left off of her IFP application, but asserts that the omissions were
immaterial because, despite these assets, she remains impoverished.
Although Chriswell is correct that she is, in fact, indigent (more on this below),
it was not her prerogative to decide what is or is not relevant information to disclose
on her IFP application. Moorish Nat. Republic v. City of Chicago, 2011 WL 1485574,
at *4 (N.D. Ill. Apr. 18, 2011). An application to proceed in forma pauperis demands
complete honesty, Chung, 2003 WL 22902561, at *2 (citation omitted), and courts must
make an independent assessment of whether a plaintiff should be required to pay the
filing fee. Moorish, 2011 WL 1485574, at *4. In some instances, the information
disclosed by a plaintiff prompts further inquiry from the reviewing court, so Chriswell’s
attempt to filter information through her own perception of what is and is not relevant
might have prevented the Court from assessing an adequate record. By censoring what
financial information to present, Chriswell risked thwarting the purpose of the IFP
application.
Notwithstanding Chriswell’s omissions, however, dismissal is only mandatory
under § 1915(e)(2)(A) when a plaintiff’s “allegation of poverty is untrue.” 28 U.S.C.
§ 1915(e)(2)(A). Under the statute’s text, the trigger for mandatory dismissal is the
falsity of the “allegation” of “poverty,” not the falsity of any one particular statement
on the financial affidavit. Indeed, another subsection of § 1915 refers to the affidavit
as including a “statement of all assets,” § 1915(a)(1), which suggests that if Congress
wanted to require dismissal for any misstatement of any asset, then the more specific
terms in § 1915(a)(1) would have been used to say that. So, when a plaintiff misstates
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assets (or omits them) on her IFP application, and those misstatements (or omissions)
do not affect her overall allegation of poverty, dismissal is not mandatory. See Moorish,
2011 WL 1485574, at *5. The Seventh Circuit’s decisions do not demand otherwise, and
have only addressed situations where a plaintiff’s omissions turned out to be material
to her financial status. See, e.g., Thomas, 288 F.3d at 306 (requiring dismissal where
plaintiff failed to disclose $58,990 in retirement benefits); Mathis, 133 F.3d at 547-48
(requiring dismissal where unemployed plaintiff omitted $14,000 in home equity).4
Other circuit courts have similarly concluded that immaterial omissions on an IFP
application do not require dismissal. See, e.g., Vann v. Comm’r of N.Y. City Dep’t of
Corr., 496 F. App’x 113, 115 (2d Cir. 2012) (emphasizing that § 1915 serves to weed out
litigants who falsely understate their net worth in order to obtain IFP status, but does
not require dismissal for inaccuracies, misstatements, or minor misrepresentations
made in good faith (citations omitted)); Lee v. McDonald’s Corp., 231 F.3d 456, 459 (8th
Cir. 2000) (noting that the IFP statute “does not mandate that the district court
dismiss [plaintiff’s] claim if it finds that certain assertions in his affidavit are untrue;

4

Although the Seventh Circuit has not explicitly drawn a distinction between material
and immaterial omissions on an IFP application, some non-precedential decisions suggest that
immaterial omissions would not require dismissal. See, e.g., Holly v. Wexford Health Servs.,
Inc., 339 F. App’x 633, 636 (7th Cir. 2009) (stating that the district court, even after learning
that plaintiff may have made false statements in his IFP petition, still had a responsibility to
first determine the truth of plaintiff’s allegation of poverty before dismissing his case); Torain
v. Ameritech Advanced Data Servs. of Ill., Inc., 319 F. App’x 433, 435 (7th Cir. 2009) (“Section
1915(e)(2)(A) requires dismissal if these omissions were material.” (emphasis added) (citations
omitted)).

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instead, it requires the district court to dismiss the claim if it finds that [he] is not
sufficiently poor to qualify for in forma pauperis status given the facts that are true”).5
Here, even when considering her newly revealed assets, Chriswell is still
indisputably indigent. All of the additional real properties have been subject to
foreclosure or condemned due to nonpayment of taxes, Pl.’s 2d Resp. Br. ¶ 12, and
public records suggest that none of these properties have substantial value. And bear
in mind that the values do not represent cash-on-hand and are not easily borrowedagainst properties. For example, the property located at 75633 C.R. 378 is worth $3000,
and the property located at 32397 76th Street is worth only $2100. R. 76-1, Def.’s Exh.
3, Group Exh. B. Moreover, Chriswell’s unemployment income of $230 a month, even
when combined with her monthly rental income of $300 and her father’s various
retirement benefits, does not change the fact that she could not afford the then-$350
filing fee. Because what Chriswell left off her application does not render untrue her
overall allegation of poverty, dismissal under § 1915(e)(2)(A) is not mandatory.6

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It is worth considering too that if the statute required dismissal of even immaterial
misstatements, then chances are many claims would be lost, even if dismissals were made
without prejudice. That is because the refiling of a suit dismissed without prejudice may be
barred by the statute of limitations, effectively transforming the dismissal into a dismissal
with prejudice, see Cardenas v. City of Chicago, 646 F.3d 1001, 1008 (7th Cir. 2011). And many
in forma pauperis applicants would not have the help of a lawyer in fending off a limitations
problem in the refiled case.
6

Big Score cites to Mullins v. Hallmark Data Sys., LLC, 511 F. Supp. 2d. 928, 941 (N.D.
Ill. 2007), for the proposition that dismissal with prejudice is mandatory if a plaintiff makes
any untrue statement in her IFP application. Def.’s 2d Mot. Dismiss ¶¶ 34-39. In Mullins, the
court dismissed the plaintiff’s complaint after learning that the plaintiff had omitted almost
$20,000 in income and interest on two properties. Id. at 930. These omissions rendered her
allegation of poverty untrue, and so the statute did require dismissal. Id. at 936. Thus, Mullins
is in line with the general rule that dismissal is required when a plaintiff makes an untrue

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Although dismissal is not required, the Court still has discretion to determine
whether dismissal, or some other form of sanction, is appropriate. This is because a
“district court has inherent authority to sanction conduct that abuses the judicial
process.” Montano v. City of Chicago, 535 F.3d 558, 563 (7th Cir. 2008) (citations
omitted). Here, the IFP form required Chriswell to disclose all her financial assets
under penalty of perjury, and her failure to include certain real properties, sources of
income, and other assets does warrant some sanction short of dismissal. Although
Chriswell’s omissions turned out to be immaterial to her financial status, the Court
still finds that some form of sanction is appropriate because the following omissions
were intentional:
First, Chriswell intentionally omitted her ownership interest in real properties
located at 75633 C.R. 378, 32397 76th Street, and 831 Washington Street.7 Chriswell
overall allegation of poverty, and is distinguishable from the facts here. It is true that Mullins
did state, in dicta, that “[i]f [plaintiff’s] argument is that dismissal with prejudice cannot occur
even in cases of intentional misrepresentations on the IFP form, so long as in the end the
applicant is actually impoverished, it is an argument that has no support either in the text, the
legislative history, or the cases construing § 1915,” id. at 941, but that was not essential to the
court’s main holding. And more to the point, that statement in Mullins simply restates the
principle that a court does have the discretion to dismiss a case with prejudice when a plaintiff
makes intentional misrepresentations on the application, even if the plaintiff is in fact
impoverished. Id. at 930.
7

Big Score also argues that Chriswell increased the value of the property located at
29040 M140 Highway, Covert, Michigan from $2000 in her initial IFP application to $5000 in
her supplemental affidavit. Def.’s 2d Mot. Dismiss ¶ 7. The Court does not consider this
increase to be an intentional misrepresentation because Chriswell is a pro se litigant and not
expected to be well-versed in real estate appraisal, and because the increase in reported value
actually rendered her application more, not less, accurate.
Similarly, Big Score mentioned in its opening brief that Chriswell failed to disclose a
property located at 34800 M140 Highway, Covert, Michigan. Id. ¶ 13(h). Because the record
does not clearly demonstrate that Chriswell owned this property, and neither party addresses

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contends that she did not own the properties located at 75633 C.R. 378 and 32397 76th
Street because they had been lost to foreclosure, Pl.’s 2d Resp. Br. ¶ 12-13, but the
forfeiture report she herself provided reveals that the foreclosures did not occur until
March 1, 2012, more than a year after she filed for in forma pauperis status. R. 84, Pl.’s
Exh. 3. Similarly, Chriswell argues that the property located at 831 Washington Street
was condemned and forfeited back to the State of Michigan, Pl.’s 2d Resp. Br. ¶ 13, but
the record shows that the foreclosure did not occur until August 2011, six months after
Chriswell filed her initial IFP application. R. 76-1, Def.’s Exh. 3, Dougherty Aff. ¶ 4.
The untitled, undated foreclosure report submitted by Chriswell does not contradict
this fact. See R. 84, Pl.’s Exh. 2. Thus, the Court finds that Chriswell owned the
properties located at 75633 C.R. 378, 32397 76th Street, and 831 Washington Street
at the time she filed her IFP application, and that Chriswell intentionally omitted
them from her financial affidavit.
Second, Chriswell offers no explanation for why her unemployment benefits
were left off her IFP application. Chriswell admits that she began receiving bi-monthly
unemployment payments of $115 in 2009. Pl.’s 2d Resp. Br. ¶ 22. Big Score produced
evidence showing that Chriswell was still receiving unemployment benefits as of
August 2012, which Chriswell does not deny. Def.’s Exh. 6. Because Chriswell does not
deny receiving unemployment benefits during this time and only argues that the

this property in their briefs, the Court will also disregard this property for purposes of this
motion. The properties located at 75361 28th Avenue and 33400 Orchard Street, in Covert,
Michigan, which Chriswell claims were quit-claimed to her in error, are likewise disregarded.
Pl.’s 2d Resp. Br. ¶ 12.

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payment amounts were too insignificant to warrant disclosure, the Court finds that
Chriswell intentionally omitted her unemployment benefits.8
Third, Chriswell intentionally failed to disclose the monthly payments of $285
from Social Security and $430 from the State of Illinois that were being deposited in
her father’s bank account. Def.’s 2d Mot. Dismiss ¶ 20. Chriswell contends that she had
no duty to disclose this income, even though she is named jointly to his checking
account, because her father is not a party to this suit and she was only added to the
account to help administer his business affairs. Pl.’s 2d Resp. Br. ¶ 21. But the IFP
form clearly requires the disclosure of any income over $200 received by the applicant
or “anyone else living at the same residence,” Def.’s 2d Mot. Dismiss Exh. 1 (emphasis
in original), and Chriswell demonstrated her understanding of this requirement by
listing her father’s pension income. Thus, the Court finds that Chriswell intentionally
omitted her father’s income.9
8

Big Score also contends that Chriswell lied about her employment status because she
listed herself as a 100% shareholder of Brickgame Entertainment in her 2010 federal tax
return. Def.’s 2d Mot. Dismiss ¶ 51. It is true that Chriswell was the business owner of
Brickgame Entertainment, which reportedly had $15,000 in depreciable assets in 2010, id., but
the Court will not consider either the corporate assets or Chriswell’s purported unemployment
for purposes of this motion, because the record is inconclusive as to when and under what
circumstances Brickgame was dissolved.
Big Score notes that Chriswell failed to report her $300 monthly rental income a second
time in her supplemental affidavit, after disclosing it in her original IFP application. Id. ¶ 7.
Given that Chriswell is a pro se litigant, the Court finds this to be an inadvertent mistake, and
will not consider it in this motion.
9

Big Score contends that Chriswell also failed to disclose her ownership interest in a
1999 Chevrolet Tahoe, which she owned jointly with her father. Def.’s 2d Mot. Dismiss ¶¶ 2631. Chriswell argues that the Cook County Circuit Court determined in an adverse claim
proceeding that the Tahoe belonged only to her father. Pl.’s Resp. Br. ¶ 26. Because the record
is inconclusive as to who properly owns the vehicle, the Court will disregard this asset for

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In light of these intentional omissions, the Court must craft a sanction that is
proportionate to the gravity of the offense. Montano, 535 F.3d at 563 (citing Allen v.
Chicago Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003)). It is true that Chriswell’s
omissions proved ultimately immaterial to her financial status, but imposing no
sanction would condone behavior that intentionally fell short of complete disclosure.
The evidence shows that Chriswell failed to disclose certain real properties and sources
of income—both to herself and her father—on her IFP application. Chriswell was
required to disclose these assets, whether material to her ultimate indigence or not. At
the same time, however, Chriswell did not act with bad faith, or with intent to deceive
the Court. At worst, she acted carelessly in her financial disclosures, but not in a badfaith attempt at affecting the indigency finding.10 Thus, the Court concludes that
dismissal with prejudice is too harsh a sanction.
Nor is dismissal without prejudice an appropriate sanction. If the Court were to
dismiss Chriswell’s complaint without prejudice, she may face a statute of limitations
bar when she re-files her lawsuit. And, practically speaking, she could still re-file
another trademark infringement complaint because Big Score’s allegedly infringing
conduct is still ongoing, and thus damages would still be accruing. So even if the Court
were to dismiss her current complaint, it would only preclude her from recovering any
damages she incurred up to the present; Chriswell could still sue for damages she

purposes of this motion.
10

Had Chriswell acted in bad faith—that is, with the intent to deceive the
Court—dismissal with prejudice would be warranted. See Mullins, 511 F. Supp. 2d at 940.

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allegedly incurs moving forward. There is yet a third reason why dismissal without
prejudice does not make sense: if the Court permitted Chriswell to re-file her
complaint, she would again seek to proceed in forma pauperis (since she is still
indisputably poor), and again enlist the services of the United States Marshals Service
to re-serve her complaint, which would amount to a waste of government resources.
In light of these circumstances, dismissal is simply not an appropriate sanction
to address Chriswell’s conduct. Instead, the Court orders Chriswell to pay a $55
sanction, which is the cost associated with the United States Marshals Service’s service
of the summons. See R. 17, Process Receipt and Return. Payment of the $55 sanction
must be made through the Clerk of Court. In light of her indigency, the sanction will
be made in 5 installments of $11 by the 15th of each month, starting with August 2013.

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III. Conclusion
For the reasons stated above, Big Score’s motion to dismiss [R. 76] is denied, but
Chriswell is ordered to pay a sanction of $55 to the Clerk of Court. In the meantime,
because the Court finds that Chriswell is, in fact, indigent, and because this case is
now progressing to the point of the taking of her deposition, the Court will recruit
counsel for Chriswell before discovery goes any further. The status hearing of July 18,
2013 is reset for August 22, 2013, at 11:15 a.m., to give recruited counsel time to learn
the case.

ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: July 12, 2013

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