Tuck v. Capitol One Bank et al, No. 3:2017cv01555 - Document 8 (S.D. Cal. 2017)
Court Description: ORDER Denying Renewed 5 Motion for Leave to Proceed in forma pauperis. Plaintiff must pay the filing fee no later than January 15, 2018. If the filing fee is not paid by that date, this case will be closed without further order from the Court. Signed by Judge Roger T. Benitez on 12/20/17. (All non-registered users served via U.S. Mail Service)(dlg)
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Tuck v. Capitol One Bank et al FILED Doc. 8 DEL: 2 0 2017 1 CLE.FlK us DISl RICT coum SOUTHERN DISTRICT OF CALIFORNIA BY DEPUTY 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ZACH TUCK, CaseNo.: 3:17-cv-01555-BEN-AGS 12 Plaintiff, 13 v. 14 CAPITOL ONE BANK, et al., ORDER DENYING RENEWED APPLICATION TO PROCEED IN FORMA PAUPERIS Defendants. 15 16 17 On August 1, 2017, Plaintiff Zach Tuck ("Tuck") filed this case against 18 Defendants for alleged violations of the Telephone Consumer Practices Act ("TCPA"), 19 the federal Fair Debt Collection Practices Act ("FDCPA"), the California Rosenthal Fair 20 Debt Collection Practices Act ("Rosenthal Act"), and Fair Credit Reporting Act 21 ("FCRA"). Tuck moves to proceed in forma pauperis ("IFP"). (Doc. Nos. 2, 5.) For the 22 reasons stated below, the Court DENIES without prejudice Tuck's Application to 23 proceed IFP. 24 25 STATEMENT OF FACTS On August 1, 2017, Tuck, a non-prisoner, proceeding prose, filed a Complaint in 26 this case asserting the aforementioned violations against Defendants Capitol One Bank 27 ("Capital One"), Portfolio Recovery Associates, LLC. ("Portfolio"), ARS National 28 Services, Inc. ("ARS"), First Source Advantage, LLC. ("First Source"), Trans Union, 3: 17-cv-01555-BEN-AGS Dockets.Justia.com 1 LLC. ("Trans Union"), Equifax Information Solutions, LLC. ("Equifax"), and Experian 2 ("Experian"). (Doc. No. 1.) Concurrent with his Complaint, Plaintiff filed an 3 Application for Leave to Proceed informa pauperis ("IFP"). (Doc. No. 2.) The IFP 4 Application stated that Tuck had no income, no assets, and $600 in monthly expenses, 5 including $350 in rent. (Id. at 4-6.) Upon review of Tuck's first IFP application, the Court found that it did not satisfy 6 7 the "particularity, definiteness, and certainty" standard and set it for a hearing on 8 September 1, 201 7 so Plaintiff could show cause why the Court should grant his IFP 9 Application. (Doc. No. 4.) Subsequently, Tuck submitted an amended Application for 10 IFP (Doc. No. 5), but failed to appear at the scheduled hearing. In light of him filing an 11 amended IFP Application, the Court excuses his failure to appear. However, Plaintiff is 12 cautioned that attendance at court hearings is not voluntary and future failures to appear 13 may result in sanctions, up to and including dismissal. 14 LEGAL STANDARD 15 Generally, all parties instituting a civil action in this Court must pay a filing fee. 16 See 28 U.S.C. § 1914(a); Civ. L. Rule 4.5(a). However, pursuant to 28 U.S.C. § 1915(a), 17 the court may authorize the commencement, prosecution or defense of any suit without 18 payment of fees if the plaintiff submits an affidavit, including a statement of all his or her 19 assets, showing that he or she is unable to pay the filing fees or costs. "An affidavit in 20 support of an IFP application is sufficient where it alleges that the affiant cannot pay the 21 court costs and still afford the necessities of life." Escobedo v. Applebees, 787 F.3d 22 1226, 1234 (9th Cir. 2015.) "[A] plaintiff seeking IFP status must allege poverty with 23 some particularity, definiteness and certainty. Id. (internal quotation marks omitted). 24 The granting or denial of leave to proceed IFP in civil cases is within the sound discretion 25 of the district court. Venerable v. Meyers, 500 f.2d 1215, 1216 (9th Cir. 1974) (citations 26 omitted). 27 Ill 28 Ill 2 3: 17-cv-01555-BEN-AGS 1 DISCUSSION 2 The Court now considers Plaintiffs Amended Application for IFP. Tuck attempts 3 to correct the deficiencies of his first application by providing a declaration containing a 4 lengthy account of his current family situation and asserts that he is still unemployed, but 5 is looking for regular work. (Doc. No. 5-1at2.) After reviewing the Amended IFP 6 Application, the Court finds that it once again fails to demonstrate with sufficient 7 "particularity, definiteness and certainty" that Plaintiff lacks the means to pay the filing 8 fee. Of note, the Court found the Amended IFP Application contained several 9 inconsistencies that conflict with his initial IFP application. Some of the new information 10 that conflicts with the Original IFP Application includes: 11 Plaintiff owns two classic cars (Id. at 2), neither of which was listed in the 12 Original IFP Application. Tuck claims both cars are currently inoperative 13 and it would not "be cost effective" to sell them in their current condition. 14 (Id. at 4.) He also claims that he has experience restoring classic vehicles 15 which he has sold in the past. (Id. at 3.) Plaintiff claims he was so good at 16 restoring vehicles that he was shipping cars to buyers in other countries. 17 (Id.) 18 Plaintiff does not pay rent to his mother, or presumably, anyone else. (Id. at 19 2.) Yet, he claimed to be paying rent or making home-mortgage payments 20 of $350 per month in the Original IFP Application. (Doc. No. 2 at 4.) In the 21 Amended IFP Application, Tuck alleges that he helps pay his mothers 22 monthly mortgage payment of$1,376 when he is able to do so. (Doc. No. 5 23 at 4.) Tuck does not provide any information about how often he has helped 24 his mother with the mortgage payment, nor when the last time was. 25 Plaintiff claims he trades "care giving for [his] mom for cash and credit card 26 purchases, gas, food and other things [he] need[ s] throughout the month." 27 (Doc. No. 5-1 at 4.) Janice Tuck, Plaintiffs mother claims she has loaned 28 her son money and provided him with housing for several months. (Doc. 3 3: 17-cv-O 1555-BEN-AGS 1 No. 5-2 at 2.) She further claims to have loaned him $600 to $900 per 2 month, sometimes more, which was not listed in the Original IFP 3 Application. (Id.) 4 Ms. Tuck also alleges Plaintiff does odd jobs and yard work for their 5 neighbors and repairs his friends cars in exchange for cash. (Id.) Again, not listed in the Original IFP Application. .6 In addition to the foregoing, Tuck's declaration includes vague references to "one 7 8 or more" consumer credit cases filed in this Court. In fact, Plaintiff has filed 5 similar 9 cases in the past eight months. 1 Notably, in each of these cases, Plaintiff applied to 10 proceed IFP while stating various amounts of monthly expenses in his IFP applications. 11 As Judge Bashant recently noted, Plaintiffs family "appear to have developed a cottage 12 industry suing their creditors for violations of the TCPA, the FDCPA and the FCRA. "In 13 each case, the parties request to proceed IFP, listing liabilities that far exceed assets. 14 Curiously, however, despite the fact that they have received settlements from 15 approximately a dozen different defendants, their assets and cash in their bank accounts 16 remained unchanged." Tuckv. Pacer Serv. Ctr. U.S. Cts., Case No. 17cvl 720-BAS- 17 KSC, 2017 WL 4050356, at* 1 (S.D. Cal. Sept. 12, 2017). Judge Bashant then listed 18 eleven cases in this district where Roy Tuck, Deborah Tuck, and their son Richard 19 20 21 22 23 24 25 26 27 28 1 Tuck currently has three open cases: Tuck v. Nat'! Credit Adjusters et al., No. 17cv00884-DMS-BGS (S.D. Cal.) (Complaint filed on May 1, 2017, and application to proceed IFP filed on May 1, 2017 remains pending.); Tuck v. Capitol One Bank et al., No. 17cv01555-BEN-AGS (S.D. Cal.) (Complaint filed on May 1, 2017, and application to proceed IFP filed May 1, 2017 and Amended IFP application filed Aug. 11, 2017 remains pending and the topic of this order.); Tuckv. Wells Fargo Bank et al., No. 17cv01595-JAH-JLB (S.D. Cal.) (Complaint filed on Aug. 8, 2017, and application to proceed IFP was denied on Oct. 20, 2017. ); and two closed cases: Tuck v. Collection at Law Inc. eta!., No. 17cv01556-CAB-BLM (S.D. Cal.) (Complaint filed on Aug. 1, 2017, and application to proceed IFP denied on Oct. 26, 2017.); and Tuck v. Paypal Credit, No. 17cv01577-AJB-JMA (S.D. Cal.) (Complaint filed on Aug. 4, 2017, and application to proceed IFP denied on Oct. 30, 2017.) 4 3: l 7-cv-01555-BEN-AGS 1 Caruso settled with defendants during the past two years. The address Tuck listed in his 2 Complaint here is the same address used by the plaintiffs in each of the eleven cases, and 3 at least ten additional cases have been filed in this district over the past two years by the 4 same plaintiffs at this address. 2 In light of the foregoing, the Court remains unpersuaded that Plaintiff lacks the 5 6 funds to pay the filing fee and "still afford the necessities of life." Escobedo, 787 F.3d at 7 1234. Considering the discrepancies between Tuck's two IFP applications, the number of 8 other cases filed and later "settled" or "dismissed" in this Court by Plaintiff and others 9 using the Vista address, the Court does not find Plaintiff to be credible in his claims of 10 poverty and assertions that he is unable to afford the filing fee. Moreover, Plaintiffs 11 admissions as to income received from his mother, combined with what appear to be 12 minimal living expenses, indicates that Plaintiff is in fact able to afford the filing fee. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 These cases include: Caruso v. Nat 'l Recovery Agency, No. 16cv534-WQH-JMA (Complaint filed on Mar. 2, 2016, and notice of voluntary dismissal with prejudice filed on Aug. 22, 2016.); Caruso v. Cal. Bus. Bureau, No. 16cv587-WQH-JMA (Complaint filed on Mar. 8, 2016, and case closed on Sept. 22, 2016 after joint motions to dismiss filed as to each defendant.); Caruso v. Cal. Recovery Bureau, No. 16cv902-BTM-DHB (Complaint filed on Apr. 14, 2016, and case settled at early neutral evaluation conference.); Caruso v. Nat'! Recovery Agency, No. 16cv1679-BAS-WVG (Complaint filed on June 29, 2016, and motion for judgment on pleadings granted on Apr. 28, 2017.); Tuck v. HCC Sur. Grp. et al., 16cv230-CAB-DHB (S.D. Cal.) (Complaint filed on Jan. 29, 2016, and unopposed motion to dismiss granted on Oct. 19, 2016); Tuck v. HCC Sur. Grp. et al., No. 16cv231-CAB-DHB (S.D. Cal.) (Complaint filed on Jan. 29, 2016, and unopposed motion to dismiss granted on Oct. 19, 2016); Tuck v. Merch. Credit Ass 'n, No. 17cv626-BAS-MDD (S.D. Cal.) (Complaint filed on Mar. 28, 2016, and case settled on Aug. 22, 2017.); Tuck v. Credit One Bank, No. 17cv 1346-WQH-BLM (S.D. Cal.) (Complaint filed on July 3, 2017, and case sua sponte dismissed for failure to sign the complaint.); Tuck v. Credit One Bank, No. 17cvl363-JLS-WVG (S.D. Cal.) (Complaint filed on July 3, 2017, and case has settled with settlement disposition conference set for Nov. 29, 2017.); Tuckv. States Recovery Sys., Inc., No. 17cv1813-GPC-NLS (S.D. Cal.) (Complaint filed on Sept. 7, 2017, and IFP denied on Oct. 5, 2017.) 5 3:17-cv-01555-BEN-AGS 1 Regardless, even if Plaintiffs Amended IFP Application, viewed in isolation, 2 might otherwise justify allowing him to proceed IFP, IFP "status is a privilege which may 3 be denied when abused." Toodle v. Jones, 02:09-CV-0944, 2009 WL 2230704, at* 1 4 (W.D. Pa. July 23, 2009); cf In re Sindram, 498 U.S. 177, 179-80 (1991) ("In order to 5 prevent frivolous petitions for extraordinary relief from unsettling the fair administration 6 of justice, the Court has a duty to deny in forma pauperis status to those individuals who 7 have abused the system."); Demos v. US. D. for E.D. of Wash., 925 F.2d 1160, 1160 (9th 8 Cir. 1991) (denying IFP applications because the petition had "abused the privilege of 9 filing petitions in forma pauperis in this court"); Johnson v. Irby, No. 1:09-CV-00003- 10 MP-AK, 2009 WL 1973510, at *3 (N.D. Fla. July 8, 2009) ("A court may deny IFP status 11 prospectively when 'the number, content, frequency, and disposition' of a litigant's 12 filings show an abusive pattern.") (quotingHurtv. SSA, 544 F.3d 308, 310 (D.C. Cir. 13 2008)). CONCLUSION 14 15 The more than two dozen consumer credit cases filed by Plaintiff and others at the 16 same Vista address in the past two years along with requests to proceed IFP is an abuse 17 of the IFP process. Accordingly, for all of these reasons, Plaintiffs Amended IFP 18 Application is DENIED. It is therefore ORDERED that to proceed with this lawsuit, Plaintiff must pay the 19 20 filing fee no later than January 15, 2018. If the filing fee is not paid by that date, this 21 case will be closed without further order from the Court. It is further ORDERED that if Plaintiff applies to proceed IFP in another case in 22 23 this district, he must attach a copy of this order to his IFP application. Failure to include 24 this order with any IFP application filed after the date of this order will be considered 25 contempt of this order and subject Plaintiff to sanctions. Plaintiff is further reminded that 26 an IFP application is made under penalty of perjury, and any false statements may result 27 in dismissal of claims, imprisonment, or a fine. See 18 U.S.C. §§ 1621, 3571. 28 /// 6 3: l 7-cv-01555-BEN-AGS 1 IT IS SO ORDERED. n. er T. Benite , United States District Judge 7 3: J7-cv-01555-BEN-AGS
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