Carton v. Brunetto et al

Filing 4

ORDER addressing In Forma Pauperis Motions by Chief Judge M. Christina Armijo granting 2 Motion for Leave to Proceed in forma pauperis as further described herein (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ALYSSA CARTON,
Plaintiff,
v.

CIV 17-0037 KK/SCY

CARROLL VENTURES, INC.,
Defendant.

ORDER ADDRESSING IN FORMA PAUPERIS MOTIONS
THIS MATTER comes before the Court on Plaintiff’s Applications to Proceed in
District Court Without Prepaying Fees or Costs (“IFP Motions”) filed in the following cases:
1:17-cv-00037-KK-SCY

Carton v. Carroll Ventures Inc.

1:17-cv-00038-KBM-WPL

Carton v. Cole MT Albuquerque (San Mateo) NM LLC

1:17-cv-00039-SCY-LF

Carton v. Courtyard NM LLC

1:17-cv-00040-KK-SCY

Carton v. HDY LLC

1:17-cv-00041-SCY-WPL

Carton v. Roshni

1:17-cv-00042-SCY-WPL

Carton v. Karasek, et al.

1:17-cv-00043-SCY-KBM

Carton v. Laxmi Management LLC

1:17-cv-00044-LF-KK

Carton v. LBC Company, LLC

1:17-cv-00045-KBM-LF

Carton v. Mega Pie, LLC

1:17-cv-00046-SCY-KBM

Carton v. San Mateo/Indian School, Inc.

1:17-cv-00047-KK-WPL

Carton v. Spilca Nicolae & Mariana

1:17-cv-00048-WPL-SCY

Carton v. Spirit Master Funding, LLC

1:17-cv-00049-KK-KBM

Carton v. TMX 5200 Central LLC

1:17-cv-00057-WPL-KK

Carton v. 6501 Lomas LLC

1:17-cv-00058-SCY-KK

Carton v. Autozone Stores LLC

1:17-cv-00059-WPL-KBM

Carton v. Bio-Medical Applications of N.M., Inc.

1:17-cv-00060-KK-WPL

Carton v. Blakes Lotaburger, LLC

1:17-cv-00061-KBM-LF

Carton v. Cimarron Holdings, LLC

1:17-cv-00063-WPL-SCY

Carton v. Cole AB Albuquerque NM, LLC

1:17-cv-00064-LF-WPL

Carton v. Cox and Allen, LLC

1:17-cv-00065-GBW-KK

Carton v. Diamond Shamrock Stations, Inc.

1:17-cv-00066-KK-KBM

Carton v. East Lomas, Partnership

1:17-cv-00067-KK-KBM

Carton v. El Mirador, Inc.

1:17-cv-00068-KK-LF

Carton v. ESS WCOT Owner, LLC

1:17-cv-00069-LF-KK

Carton v. Goatcher Family, LTD

1:17-cv-00070-WPL-KK

Carton v. Marky, et al

1:17-cv-00071-SCY-LAM

Carton v. Lunnon Properties, LLC

1:17-cv-00073-WPL-SCY

Carton v. Market Center East Retail Property, Inc.

1:17-cv-00074-WPL-SCY

Carton v. McDonald's Corporation

1:17-cv-00075-WPL-CG

Carton v. Miller Family Real Estate, LLC

1:17-cv-00076-LF-WPL

Carton v. MVD Specialists, LLC

1:17-cv-00077-KK-WPL

Carton v. Pacific Realty, CO

1:17-cv-00078-WPL-LF

Carton v. Q Market Center, LLC

1:17-cv-00080-LF-KK

Carton v. Realty Income, Corporation

1:17-cv-00082-KK-KBM

Carton v. Brunetto et al

1:17-cv-00083-LF-WPL

Carton v. Southwest Capital Projects, LLC

1:17-cv-00084-SCY-KBM

Carton v. Westland Properties, LLC

1:17-cv-00085-GJF-KBM

Carton v. Zia Trust, Inc.

1:17-cv-00151-KK-WPL

Carton v. 5220 Eubank, LLC

1:17-cv-00153-WPL-KK

Carton v. B+H Investments, LLC

1:17-cv-00154-GBW-KK

Carton v. Fair Plaza, Inc

1:17-cv-00156-SCY-LF

Carton v. Hayman Nurseries, LLC

1:17-cv-00158-KBM-SCY

Carton v. Holiday Bowl, Inc.

1:17-cv-00159-SMV-LF

Carton v. Kawips New Mexico, LLC

1:17-cv-00160-GJF-LF

Carton v. LNU, et al

1:17-cv-00161-LF-KBM

Carton v. M & E New Mexico Property, LLC

1:17-cv-00162-WPL-LF

Carton v. Monarch Land, LLC
2

1:17-cv-00163-KK-WPL

Carton v. Montgomery-Juan Tabo Properties, LLC

1:17-cv-00164-SCY-WPL

Carton v. New Mexico Bank & Trust

1:17-cv-00165-WPL-LF

Carton v. Pacific Bistro Partnership

1:17-cv-00166-KBM-KK

Carton v. Pizza Hut of America LLC

1:17-cv-00167-SCY-LF

Carton v. Jaramillo, et al

1:17-cv-00168-SCY-KBM

Carton v. Garcia, et al.

1:17-cv-00169-KBM-SCY

Carton v. Smith's Food and Drug Centers, Inc.

1:17-cv-00170-KBM-KK

Carton v. Starlight Investments, LLC

1:17-cv-00171-KK-SCY

Carton v. LNU, et al.

1:17-cv-00172-LF-SCY

Carton v. McCollum, et al.

1:17-cv-00173-LF-SCY

Carton v. Three J's, Limited Partnership

1:17-cv-00174-KK-KBM

Carton v. Tulsi Group, LLC

1:17-cv-00175-KK-SCY

Carton v. LNU, et al.

Joinder of Cases for Limited Purpose
Attorney Sharon Pomeranz has filed 60 cases on behalf of Plaintiff Alyssa Carton against
different defendants alleging violations of the Americans with Disabilities Act (ADA). With the
exception of paragraph 31 of each complaint (which identifies the specific alleged violations at a
defendant’s premises), the complaints are identical. In each case, Plaintiff Carton seeks leave to
proceed in forma pauperis (IFP).
Rule 42 of the Federal Rules of Civil Procedure provides that “[i]f actions before the
court involve a common issue of law or fact,” the court may “join for hearing and trial any or all
matters at issue in the actions.” Fed. R. Civ. P. 42(a)(1). To promote efficiency and economy
and to avoid conflicting decisions, I have concluded that these cases, listed above, should be
joined for the sole purpose of addressing the IFP motions.
A magistrate judge has authority only to grant an IFP motion. As this District’s Chief
Judge, I will therefore join the above cases before me for the sole purpose of addressing the IFP
motions. The currently assigned magistrate judges will thereafter conduct further proceedings in
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each case, either as the presiding trial judge with consent of the parties or as the pretrial
magistrate judge.
Fees
Plaintiff is obligated to pay the fee for instituting each of the civil actions listed above,
including those cases where the Court is allowing Plaintiff to proceed in forma pauperis pursuant
to 28 U.S.C. 1915. Section 1915(a) does not permit litigants to avoid payment of fees; only
prepayment of fees may be excused. See Brown v. Eppler, 725 F.3d 1221, 1331 (10th Cir. 2013)
(“all § 1915(a) does for any litigant is excuse the pre-payment of fees”). The fee for instituting
any civil action, suit or proceeding in this Court is $400.00, which is comprised of the $350.00
filing fee, see 28 U.S.C. 1914(a), and a $50.00 administrative fee. Plaintiff is therefore obligated
to pay the Court $24,000.00 in fees for instituting the 60 cases listed above.
Applications to Proceed In Forma Pauperis
The IFP Motions Plaintiff has filed in these cases are essentially identical and show: (i)
her total monthly income is $2,500.00; (ii) her total monthly expenses are $2,295.00; (iii) she has
$1,900.00 in cash; (iv) she has $1,900.00 in a checking account; and (v) she is unemployed.
Each IFP Motion shows her sources of income are $2,500.00 from employment, $600.00
from Disability, and $1,900.00 from SSDI Veterans Funds, for a total of $5,000.00. Plaintiff
indicates that her total monthly income is $2,500.00. It appears that the $2,500.00 amount she
listed as coming from “Employment” is a typographical error because Plaintiff indicates that she
has no employer and is unable to work.

If the $2,500.00 employment amount is not a

typographical error, Plaintiff shall, within 21 days of entry of this Order, file a notice indicating
so.
Proceedings in forma pauperis

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The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the
Court may authorize the commencement of any suit without prepayment of fees by a person who
submits an affidavit that includes a statement of all assets the person possesses and that the
person is unable to pay such fees.
The Court will deny Plaintiff’s IFP Motion in Carton v. Carroll Ventures, Inc., No.
17cv0037 KK/SCY. Plaintiff’s IFP Motion indicates that she has $1,900.00 in cash, $1,900.00
in a checking account, and that her monthly income exceeds her monthly expenses by $205.00.
Plaintiff shall have 21 days from entry of this Order to pay the $400.00 fee for instituting Carton
v. Carroll Ventures, Inc., No. 17cv0037 KK/SCY or show cause why this case should not be
dismissed without prejudice for failure to pay the filing fee.
The Court will grant Plaintiff’s IFP Motions in all the cases listed on the first three pages
of this Order, except for the IFP Motion in Carton v. Carroll Ventures, Inc., No. 17cv0037
KK/SCY. The Court finds that Plaintiff is unable to pay the entire $15,200.00 in fees for
instituting the 60 cases at this time. The Court also finds that Plaintiff is able to make partial
payments towards those fees because her monthly income exceeds her monthly expenses, which
include $100.00 for recreation and entertainment, by $205.00.
Plaintiff shall, beginning one month after entry of this Order, make monthly payments in
the amount of $50.001 to the Court. The check shall be made payable to “United States District
Court” and shall cite the following reference number: Ref#2017PP-Carton on the check itself.
Plaintiff shall mail the check to:
USDC-DNM, Clerk of the Court
333 Lomas Blvd. NW, Suite 270
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$50.00 is 2 percent of her monthly income of $2,500.00, or about one sixth of her discretionary
income of $305.00 ($205.00 difference between monthly expenses and monthly income, plus
$100.00 monthly for recreation and entertainment).
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Albuquerque, NM 87102
Plaintiff shall include a copy of this Order with the check. Failure to timely submit the check
with a copy of this Order may result in dismissal of one or more cases filed by Plaintiff.
Plaintiff shall also, beginning two months after entry of this Order and every two months
afterward, file in this case an affidavit stating the amount of any additional income she received
during the previous two months above the $2,500.00 monthly income that she reported in her
IFP Motions. She shall also pay half of that additional income, rounded to the nearest $50.00, to
the Court in the manner described in the preceding paragraph.
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service at this time. The Complaints provide the addresses of
the Places of Public Accommodation owned and/or operated by Defendants, but do not provide
Defendants’ addresses which are necessary for service. Plaintiff shall file in each case a notice
which provides the service address for each Defendant in that case.2
IT IS ORDERED that:
(i) The cases listed on the first three pages of this Order are joined for the sole purpose of

2

Many of the Defendants are corporations which may have agents authorized to receive service
of process.
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addressing the IFP motions.
(ii) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs,
Doc. 2, filed January 13, 2017, in Carton v. Carroll Ventures, Inc., No. 17cv0037 KK/SCY, is
DENIED. Plaintiff shall have 21 days from entry of this Order to pay the $400.00 fee for
instituting a new case or show cause why this case should not be dismissed without prejudice for
failure to pay the filing fee.
(iii) Plaintiff’s Applications to Proceed in District Court Without Prepaying Fees or
Costs in all the cases listed on the first three pages of this Order, except for the Application in
Carton v. Carroll Ventures, Inc., No. 17cv0037 KK/SCY, are GRANTED.
(iv) Plaintiff shall, beginning one month after entry of this Order, make monthly
payments of $50.00 to the Court in the manner described above.
(v) Plaintiff shall also, beginning two months after entry of this Order and every two
months afterward, file in this case an affidavit stating the amount of any additional income she
received during the previous two months above the $2,500.00 monthly income that she reported
in her IFP Motions. She shall also pay half of that additional income, rounded to the nearest
$50.00, to the Court in the manner described above.
(vi) Plaintiff shall file in each case a notice which provides the service address for each
Defendant in that case. The Court will not order service on Defendants until Plaintiff provides
service addresses for Defendants.
(vii) The Clerk of the Court shall file this Order in each of the cases listed on the first
three pages of this Order.
_________________________________________
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE

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