Foster v. Public Storage Inc. et al

Filing 12

OPINION AND ORDER Vacating the 10 Order Entered on May 14, 2014, Granting Plaintiff's 9 Application to Proceed Without Prepayment of Fees or Costs and Dismissing the Case Without Prejudice. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARZEL L. FOSTER,
Plaintiff,

Civil Action No.
14-11396

vs.
HON. MARK A. GOLDSMITH
PUBLIC STORAGE INC., et al.,

Defendants.
____________________________/
OPINION AND ORDER (1) VACATING THE ORDER ENTERED ON MAY 14, 2014
(DKT. 10), (2) GRANTING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS (DKT. 9), and (3) DISMISSING THE CASE
WITHOUT PREJUDICE
The matter is before the Court on the Court’s review of the amended complaint (Dkt. 11)
and the application to proceed without prepayment of fees or costs (Dkt. 9). On April 9, 2014,
the Court entered an Order (Dkt. 6) noting that the application to proceed without prepayment of
fees or costs (Dkt. 2) was not fully completed and that the complaint was only partially legible;
the Order stated that the Court was unable “to discern the grounds on which Plaintiff seeks relief
or the asserted basis for federal court jurisdiction.” Order at 2. The Order directed Plaintiff
Arzel L. Foster to (i) file a completed application to proceed without prepayment of fees or costs
and (ii) file an amended complaint “that is either typed or written clearly and legibly and . . . sets
forth the basis for federal court jurisdiction.” Id. The Court directed Plaintiff to submit these
corrected documents on or before May 12, 2014; the Court stated, “If Plaintiff fails to timely
submit a corrected complaint that sets forth the basis for federal court jurisdiction, the Court will
dismiss the case without prejudice for lack of federal subject-matter jurisdiction under Federal

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Rule of Civil Procedure 12(h)(3).” Order Granting Plaintiff’s Motion to Extend (Dkt. 8).
As of May 13, 2014, no amended complaint was entered on the docket. On May 14,
2014, the Court entered an order (Dkt. 10) dismissing the matter without prejudice for lack of
federal subject-matter jurisdiction. After the Court entered the Order, an amended complaint
was filed on the docket (Dkt. 11). Although the amended complaint was not entered on the
docket until May 14, the time stamp on the complaint establishes that it was delivered to the
Clerk’s Office on May 12, 2014. Because the amended complaint was timely filed, the Court
vacates the Order (Dkt. 10) dismissing the case without prejudice.
The Court turns first to Plaintiff’s completed application to proceed without prepayment
of fees or costs (Dkt. 9), which was filed on April 28, 2014. Applications to proceed without
prepayment of fees or costs are governed by 28 U.S.C. § 1915(a)(1), which provides that a
federal court “may authorize the commencement . . . of any suit, action, or proceeding . . . by a
person who submits an affidavit that includes a statement of all assets . . . that the person is
unable to pay such fees . . . .” The Court has reviewed Plaintiff’s application, which states that
Plaintiff received a total of $2,500 in the last year, that he has no money in bank accounts, and
that he has a deferred school loan. Application at 1-2 (CMECF pagination) (Dkt. 9). The Court
is satisfied that Plaintiff is indigent and that prepayment of the filing fee would cause an undue
financial hardship. The Court grants Plaintiff’s application and permits Plaintiff to file his
complaint without prepaying the filing fee.
The Court is also required to screen all complaints filed by plaintiffs proceeding without
prepayment of fees or costs and dismiss those that (i) are frivolous or malicious, (ii) fail to state a
claim upon which relief may be granted, and/or (iii) seek monetary relief against a defendant
who is immune from such relief. See 28 U.S.C. § 1915(e)(2). To survive dismissal for failure

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to state a claim, a complaint must plead sufficient specific factual allegations, and not just legal
conclusions, in support of each claim. Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009); Hill v.
Lappin, 630 F.3d 468, 470-471 (6th Cir. 2010) (holding that the dismissal standard of Iqbal
applies to a Court’s review of a complaint under § 1915(e)(2) for failure to state a claim). A
complaint will be dismissed unless, when all well-pled factual allegations are accepted as true,
the complaint states a “plausible claim for relief.” Iqbal, 556 U.S. at 679.
The amended complaint (Dkt. 11) states that the Court has jurisdiction over this matter
under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and
“supplemental jurisdiction over the state law claims because they arise from the same nucleus of
operative facts, RICO Act [sic] . . . .” Am. Compl. at 2. The complaint alleges that Plaintiff
stored property, such as furniture and stereo equipment, in storage units provided by Defendant
Public Storage, Inc. Id. at 2-3. Plaintiff asserts that he was not allowed inside his storage unit to
check on his property. Id. at 2. He claims that Defendant has been stealing his property “under
conversion” and that his property was being auctioned off. Id. at 3. Although the assertions in
the complaint are not a model of clarity, it appears that Plaintiff fell behind on rental payments
for the storage units. Id. at 4-5. The complaint brings claims of “[c]ivil conspiracy to Fraud,
RICO, conversion and specific performance.” Id. at 6.
The complaint invokes two federal statutes that Plaintiff claims Defendants violated: the
FDCPA and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §
1961 et seq. The Court concludes that the amended complaint fails to state a claim of violation
of either statute.
First, Plaintiff has not shown that the FDCPA is applicable, because Plaintiff does not
allege that Defendant is a “debt collector” within the meaning of the statute. The FDCPA

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prohibits debt collectors from taking certain actions in connection with the collection of a debt.1
A “debt collector” is defined as “any person who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be
owed or due another.” 15 U.S.C. § 1692a(6). As a general matter, a creditor attempting to
collect its own debts is not a “debt collector” under the FDCPA. Montgomery v. Huntington
Bank, 346 F.3d 693, 699 (6th Cir. 2003). The amended complaint does not allege any facts
indicating that Defendant may be a “debt collector” within the meaning of the FDCPA;
accordingly, the Court will dismiss the FDCPA claim under 28 U.S.C. § 1915(e)(2) for failure to
state a claim.
Second, the amended complaint does not allege any elements of a civil RICO claim. The
civil remedies section of RICO, 18 U.S.C. § 1964(c), provides in part, “Any person injured in his
business or property by reason of a violation of section 1962 of this chapter may sue therefor in
any appropriate United States district court . . . .” To demonstrate a violation of § 1962, Plaintiff
must show Defendant engaged in “(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.”

Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985).

“Racketeering activity” is defined as “any act which is indictable under [enumerated federal
statutes].” 18 U.S.C. § 1961(1)(B). The amended complaint does not assert, or attempt to
establish, any of the elements of a civil RICO claim. The Court, therefore, will dismiss the
RICO claim under 28 U.S.C. § 1915(e)(2) for failure to state a claim. See, e.g., Otworth v.

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For example, 15 U.S.C. § 1692d prohibits a debt collector from “engag[ing] in any conduct the
natural consequence of which is to harass, oppress, or abuse any person in connection with the
collection of debt.” See also 15 U.S.C. § 1692e (prohibiting a debt collector from “us[ing] any
false, deceptive, or misleading representation or means in connection with the collection of any
debt”). 
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Williams, Hughes & Cook, PLLC, No. 11-206, 2011 WL 1542114, at *2 (W.D. Mich. Apr. 21,
2011) (dismissing a complaint under § 1915(e)(2) and noting that the plaintiff’s “bare reference
to the RICO statute is insufficient to state a claim”).
The Court, therefore, dismisses without prejudice the claims of violations of the FDCPA
and RICO under § 1915(e)(2). See, e.g., Gill v. Englehardt, No. 14-10538, 2014 WL 1608698,
at *3 (E.D. Mich. Apr. 22, 2014) (dismissing a complaint without prejudice under 28 U.S.C. §
1915(e)(2)). The remaining claims in the amended complaint are state-law claims of fraud and
conversion. The Court declines to exercise supplemental jurisdiction over the state-law claims.
See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise supplemental jurisdiction
over a claim . . . if . . . the district court has dismissed all claims over which it has original
jurisdiction.”). Accordingly, the state-law claims are dismissed without prejudice.
SO ORDERED.
Dated: May 22, 2014
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on May 22, 2014.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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