Tucker v. US Bank National Association

Filing 3

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, DENYING MOTION TO DIRECT SERVICE BY U.S. MARSHAL, AND DISMISSING CASE, denying 1 Motion for Leave to Proceed in forma pauperis; denying 2 Motion for Order Directing Marshal. This case is DISMISSED as frivolous and for failure to state a claim. Signed by Judge Robert J. Bryan. (JL) Paper copy sent to plaintiff @ Ocean Shores address . Modified on 10/14/2014 (JL).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CAROL TUCKER,

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CASE NO. C14-5796 RJB
Plaintiff,

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v.

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US BANK NATIONAL ASSOCIATION,

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ORDER DENYING APPLICATION
TO PROCEED IN FORMA
PAUPERIS, DENYING MOTION TO
DIRECT SERVICE BY U.S.
MARSHAL, AND DISMISSING
CASE

Defendant.

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This matter comes before the court on plaintiff’s application to proceed in forma pauperis

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17 (Dkt. 1), on plaintiff’s motion requesting an order directing the U.S. Marshal to serve the
18 summons and complaint (Dkt. 2), and on review of the complaint and cover sheet (Dkt. 1-1, at 119 5).
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On October 6, 2014, plaintiff filed a civil complaint and an application to proceed in

21 forma pauperis (IFP), that is, without paying the $400 filing fee for a civil case. Dkt. 1. Plaintiff
22 also filed a civil complaint (Dkt. 1-1, at 2-5), and a motion requesting an order directing the U.S.
23 Marshal to serve the summons and complaint (Dkt. 2).
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ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS, DENYING MOTION TO
DIRECT SERVICE BY U.S. MARSHAL, AND
DISMISSING CASE- 1

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Standard for Granting Application for IFP. The district court may permit indigent

2 litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See
3 28 U.S.C. § 1915(a). However, the court has broad discretion in denying an application to
4 proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375
5 U.S. 845 (1963).
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A district court may deny leave to proceed in forma pauperis at the outset if it appears

7 from the face of the proposed complaint that the action is frivolous or without merit.” Minetti v.
8 Port of Seattle, 152 F.3d 1113 (9th Cir. 1998), quoting Tripati v. First Nat'l Bank & Trust, 821 F.
9 2d 1368, 1370 (9th Cir. 1987).
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Plaintiff’s Application to Proceed IFP. Plaintiff states that she has a monthly income

11 of $158.41 from a pension and $979 from a disability payment. Dkt. 1, at 1. Plaintiff states that
12 her transportation expenses are $900 a month, and expenses for medicine are $450. Dkt. 1, at 2.
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Review of the Complaint. The court has carefully reviewed the complaint in this matter.

14 Because plaintiff filed this complaint pro se, the court has construed the pleadings liberally and
15 has afforded plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't,
16 839 F.2d 621, 623 (9th Cir.1988).
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The complaint alleges that, in March of 2014, plaintiff was approved for an Ace

18 Hardware US Bank VISA, with a $3,500 credit limit; and that, on September 26, 2014, she
19 logged onto the account and discovered that her credit limit had been lowered to $2,600.
20 Plaintiff claims that defendant US Bank National Association failed to provide her advance
21 notice that her credit limit had been lowered, and that the reason given to her by Cardmember
22 Services when she contacted the company consisted of false statements regarding her credit
23 score, delinquencies, and credit history.
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ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS, DENYING MOTION TO
DIRECT SERVICE BY U.S. MARSHAL, AND
DISMISSING CASE- 2

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15 U.S.C. § 1637(i)(2) of the Truth in Lending Act (TILA) provides as follows:

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In the case of any credit card account under an open end consumer credit plan, a creditor
shall provide a written notice of any significant change, as determined by rule of the
Bureau, in the terms (including an increase in any fee or finance charge, other than as
provided in paragraph (1)) of the cardholder agreement between the creditor and the
obligor, not later than 45 days prior to the effective date of the change.

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Plaintiff contends that defendant failed to give her advance notice of the decrease in her
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credit limit. However, TILA does not require an obligor to provide advance notice of a decrease
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in a credit limit, unless an over-the-limit fee or penalty rate was imposed as a result of the
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consumer exceeding the newly decreased credit limit. 12 C.F.R. § 226.9(c)(2)(vi). There are no
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allegations in the complaint that an over-the-limit fee or penalty rate was imposed as a result of
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plaintiff’s exceeding the newly decreased credit limit. In fact, plaintiff alleged that she had “an
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excellent payment record” on both of the US Bank accounts she had. Dkt. 1-1, at 3. Further, to
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the extent that plaintiff claims that the decision to decrease her credit limit was based upon false
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information and analysis, plaintiff has not alleged a plausible basis for federal jurisdiction over
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such a claim.
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This complaint is legally frivolous and fails to state a claim.
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Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is
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entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal
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of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995). In this case, as
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discussed above, any attempt by plaintiff to amend the complaint would be futile.
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Decision on Application to Proceed IFP. It appears that plaintiff has the income to pay
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the $400 filing fee in this case. Plaintiff has made a choice to file this civil action. While the
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costs of this action may place a burden on her resources, plaintiff appears to have sufficient
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ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS, DENYING MOTION TO
DIRECT SERVICE BY U.S. MARSHAL, AND
DISMISSING CASE- 3

1 funds to pay the filing fee. Further, based upon the above analysis of the deficiencies in the
2 complaint, the court should deny plaintiff’s application to proceed in forma pauperis.
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Motion Requesting Order to Direct Service by U.S. Marshal. Plaintiff requests that

4 the court direct that the U.S. Marshal serve the summons and complaint on defendant. This case
5 is dismissed by this order. The request should be denied.
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Sua Sponte Dismissal. A federal court may dismiss a case sua sponte pursuant to

7 Fed.R.Civ.P. 12(b)(6) when it is clear that the plaintiff has not stated a claim upon which relief
8 may be granted. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.1987) ("A trial
9 court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6). Such a dismissal may be
10 made without notice where the claimant cannot possibly win relief."). See also Mallard v.
11 United States Dist. Court, 490 U.S. 296, 307-08 (1989) (there is little doubt a federal court
12 would have the power to dismiss frivolous complaint sua sponte, even in absence of an express
13 statutory provision). A complaint is frivolous when it has no arguable basis in law or fact.
14 Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). This case has no arguable basis in law
15 or fact. The complaint should be dismissed as frivolous and for failure to state a claim.
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IFP on Appeal. In the event that plaintiff appeals this order, and/or appeals dismissal of

17 this case, IFP status should be denied by this court, without prejudice to plaintiff to file with the
18 Ninth Circuit U.S. Court of Appeals an application to proceed in forma pauperis.
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Future filings. Other than a Notice of Appeal, any filings in this case in the future will

20 be docketed by the Clerk but not acted upon by the court.
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Accordingly, it is hereby ORDERED that plaintiff’s Application to Proceed In Forma

22 Pauperis (Dkt. 1) is DENIED. Plaintiff’s motion requesting that the court direct the U.S.
23 Marshal to serve the summons and complaint (Dkt. 2) is DENIED. This case is DISMISSED as
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ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS, DENYING MOTION TO
DIRECT SERVICE BY U.S. MARSHAL, AND
DISMISSING CASE- 4

1 frivolous and for failure to state a claim. In the event that plaintiff appeals this order, IFP status
2 is DENIED by this court, without prejudice to plaintiff to file with the Ninth Circuit U.S. Court
3 of Appeals an application to proceed in forma pauperis. Other than a Notice of Appeal, any
4 filings in this case in the future will be docketed by the Clerk but will not be acted upon by the
5 court.
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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

7 to any party appearing pro se at said party’s last known address.
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Dated this 14th day of October, 2014.

A
ROBERT J. BRYAN
United States District Judge

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ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS, DENYING MOTION TO
DIRECT SERVICE BY U.S. MARSHAL, AND
DISMISSING CASE- 5