DXRAMS v. JH PORTFOLIO DEBT EQUITIES
OPINION AND ORDER: Plaintiff's application to proceed in forma pauperis is GRANTED; Plaintiff's Complaint is DISMISSED without prejudice, with leave tofile an amended complaint within thirty (30) days from entry of this Order. If Plaintiff fails to file an Amended Complaint within 30 days of the entry of this Order, this Court will direct the Clerk of the Court to dismiss the Complaint with prejudice; The Clerk of the Court mail a copy of the Opinion and Order to Plaintiff by regular mail and by certified mail return receipt, etc. Signed by Judge John Michael Vazquez on 04/12/2018. (ek)
Not for Publication
UNITED STATES DISTRICT COURT,
DISTRICT OF NEW JERSEY
Civil Action No. 17-12038
JH PORTFOLIO DEBT EQUITIES,
OPINION & ORDER
John Michael Vazguez, U.S.D.J.
Plaintiff seeks to bring this action informapaitperis pursuant to 2$ U.S.C.
§ 1915. D.E.
1. for the reasons discussed below, the Court GRANTS Plaintiffs application to proceed informa
pauperis but the Complaint is DISMISSED without prejudice pursuant to 2$ U.S.C.
1915(e)(2)(B) for failing to state a claim upon which relief can be granted. Specifically, Plaintiff
fails to plausibly plead a claim.
§ 1915, this Court may excuse a litigant from prepayment of fees when the litigant
“establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express Airlines,
Inc., 886 F.2d 59$, 601 (3d Cir. 1989). Plaintiff sufficiently establishes his inability to pay, and
the Court grants his application to proceed inforrnapaztperis without prepayment of fees and costs.
However, when allowing a plaintiff to proceed in forma pauperis, the Court must review
the complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 28 U.S.C.
§ l915(e)(2). When considering dismissal under § 1915(e)(2)(B)(ii) for
failure to state a claim on which relief can be granted, the Court must apply the same standard of
review as that for dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6).
Schreane v. Seana, 506 Fed. App’x 120, 122 (3d Cir. 2012). To state a claim that survives a Rule
1 2(b)(6) motion to dismiss, a complaint must contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Because Plaintiff is proceedingpro Se, the Court construes the pleadings
liberally and holds them to a less stringent standard than those filed by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972).
“The Court need not, however, credit a pro se plaintiffs ‘bald
assertions’ or ‘legal conclusions.” D ‘Agostino v. CECOM RDEC, 2010 WL 3719623, at *1
(D.N.J. Sept. 10, 2010).
“Federal courts have subject matter jurisdiction over a case if it satisfies federal question
jurisdiction under 2$ U.S.C.
§ 1331, or diversity jurisdiction under 2$ U.S.C. § 1332.” Hines v.
Irvington Cottnseling Ctr., 933 F. Supp. 382, 387 (D.N.J. 1996). Pursuant to 2$ U.S.C.
“[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” “[A] claim arises under federal law if
federal law creates the cause of action.” Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S.
677, 706 (2006) (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. $04, 80$ (1986)). To
establish diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a), “the party asserting jurisdiction
must show that there is complete diversity of citizenship among the parties” as well as an amount
in controversy exceeding the stattitory threshold. Schneller ex rd Schneller
Med. Ctr., 387 Fed. App’x 289, 292 (3d Cir. 2010).
Here, Plaintiff alleges violations of 15 U.S.C. §1692 and 15 U.S.C. §1681, the fair Debt
Collection Practices Act (“fDCPA”) and the Fair Credit Reporting Act (“FCRA”). Both are
federal statutes; thus the Court has federal subject matter jurisdiction over his claims. To state a
claim under the FDCPA, a plaintiff must show: “(I) [he] is a consumer, (2) the defendant is a debt
collector, (3) the defendant’s challenged practice involves an attempt to collect a ‘debt’ as the Act
defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the
debt.” Douglass v. Convergent Oittsourcing, 765 F.3d 299, 303 (3d Cir. 2014). The FCRA
“imposes a variety of obligations on both furnishers [banks and other lenders] and [credit reporting
agencies]”. $eamans v. Temple University, 744 F.3d 853, 860 (3d Cir. 2014).
Plaintiff alleges that Defendant has violated the FDCPA by “harassing [him] via phone
calls and letters,” and that Defendant has wrongfully reported the debt of $18,196 on his credit
report. D.E. 1, hereinafter “Complaint” or “Compl.” at 4. Plaintiff claims to have disputed the
debt and has asked Defendant several times for “competent evidence that the plaintiff have [sic]
legal obligation to the debt.” Id.
It is clear to the Court that Plaintiff is attempting to charge Defendant with violations of
the FDCPA, but he includes no detail about the alleged phone calls and letters, including a lack
of dates, times, and descriptions of the alleged harassment. Plaintiff does annex a copy of his
credit report to the Complaint, but he does not explain it. See Ex. A to Compl. As to a letter he
sent to Defendant, Plaintiff states that the credit report indicates that he owes “a debt to an
original creditor whom is unknown,” but the credit report states that the original debt was with
“Citibank N.A.” Id. Without more plausible and specific allegations, the Court cannot draw
reasonable inferences that Defendant has violated either the FDCPA or the FCRA.
When dismissing a case brought by apro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, which affords a plaintiff leave to amend.
Grayson v. Mayview State Hosp., 293 f.3d 103, 110-11 (3d Cir. 2002). The district court may
deny leave to amend only if (a) the moving party’s delay in seeking amendment is undue,
motivated by bad faith, or prejudicial to the non-moving party or (b) the amendment would be
futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). At this point, the Court cannot
conclude that Plaintiffs claims are futile. Therefore, the Court shall provide Plaintiff thirty (30)
days to file an amended complaint1 that cures the deficiencies set forth herein. If Plaintiff does
not submit an amended complaint curing these deficiencies within thirty days, the dismissal will
then be with prejudice. A dismissal with prejudice means that Plaintiff will be precluded from
filing any future suit against Defendant concerning the allegations in the Complaint.
Accordingly, and for good cause shown,
IT IS on this
day of April, 2018,
ORDERED that Plaintiffs application to proceed informapauperis is GRANTED; and
it is further
ORDERED that Plaintiffs Complaint is DISMISSED without prejudice, with leave to
file an amended complaint within thirty (30) days from entry of this Order. If Plaintiff fails to
file an Amended Complaint within 30 days of the entry of this Order, this Court will direct the
Clerk of the Court to dismiss the Complaint with prejudice; and it is further
If Plaintiff does file an amended complaint which the Court finds sufficient, Defendant is not
precluded from filing a motion to dismiss pursuant to Rule 12(b)(6). The Court’s role at this stage
is to perform a screening function. The Court’s ruling does not prejudice Defendant from litigating
the matter as it sees fit.
ORDERED that the Clerk of the Court mail a copy of the Opinion and Order to Plaintiff
by regular mail and by certified mail return receipt.
John Michael Vazque U.S.D.J.
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