Mendez v. Loanme, Inc ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CAROLL KING MENDEZ, Case No. 20-cv-00002-BAS-AHG 11 Plaintiff, ORDER GRANTING MOTION FOR 12 LEAVE TO PROCEED IN FORMA v. PAUPERIS 13 LOANME, INC., JONATHAN [ECF No. 2] 14 WILLIAMS, DOES 1-50, 15 Defendants. 16 17 On January 2, 2020, Plaintiff Caroll King Mendez, proceeding pro se, filed a 18 complaint against Defendants LoanMe, Inc. and Jonathan Williams, alleging that 19 Defendants “intentionally and deliberately discriminated on the basis of his Hispanic 20 ethnicity with a predatory loan that was funded without any underwriting safeguards for 21 the sole purpose of failure.” (Compl. at 5, ECF No. 1.) On the same day, Plaintiff also 22 filed a motion seeking leave to proceed in forma pauperis (“IFP Motion”). (ECF No. 2.) 23 For the following reasons, the Court GRANTS Plaintiff’s IFP motion. 24 Under 28 U.S.C. § 1915, a litigant who is unable to pay the filing fee to commence 25 a legal action because of indigency may petition the court to proceed without making such 26 payment. The determination of indigency falls within the district court’s discretion. Cal. 27 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 28 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing court to 1 exercise its sound discretion in determining whether the affiant has satisfied the statute’s 2 requirement of indigency”). It is well-settled that a party need not be completely destitute 3 to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 4 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 5 which states that one cannot because of his poverty pay or give security for costs . . . and 6 still be able to provide himself and dependents with the necessities of life.” Id. at 339. At 7 the same time, however, “the same even-handed care must be employed to assure that 8 federal funds are not squandered to underwrite, at public expense . . . the remonstrances of 9 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 10 v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 11 District courts, therefore, tend to reject IFP applications where the applicant can pay 12 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 13 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds by Olivares v. 14 Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that the district court did not abuse its 15 discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 16 salary and who received $110 per month from family). Moreover, “in forma pauperis status 17 may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult 18 Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 19 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. 20 June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 21 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 22 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 23 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 24 Having read and considered Plaintiff’s application, the Court finds that Plaintiff 25 meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is self-employed and 26 receives $2,250.00 monthly in wages. (IFP Mot. ¶¶ 2, 3.) No other sources of income are 27 listed. (Id.) Although Plaintiff indicates he owns a home and a vehicle, he states that he 28 has two unpaid mortgages with Bank of American and Ditech, and lists only $210.00 in his 1 checking account. (Id. ¶¶ 4, 5.) Plaintiff also lists monthly expense includes a mortgage 2 payment of $2,500.00 and owes a debt of $25,000.00 to LoanMe, Inc., which is the subject 3 of this action. (Id. ¶¶ 6, 8.) Plaintiff’s expenses and debt are clearly greater than his current 4 sources of income, and as such, the Court finds that requiring Plaintiff to pay the court filing 5 fees would impair his ability to obtain the necessities of life. See Adkins, 335 U.S. at 339. 6 Accordingly, the Court GRANTS Plaintiff’s IFP Motion (ECF No. 2.) However, if 7 it appears at any time in the future that Plaintiff’s financial picture has improved for any 8 reason, the Court will direct Plaintiff to pay the filing fee to the Clerk of the Court. This 9 includes any recovery Plaintiff may realize from this suit or others, and any assistance 10 Plaintiff may receive from family or the government. 11 Further, the Court: 12 (1) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 13 1) and forward it to Plaintiff along with blank U.S. Marshal Forms 285 for Defendants 14 LoanMe, Inc. and Jonathan Williams (collectively, “Defendants”). In addition, the Clerk 15 will provide Plaintiff with a certified copy of this Order, a certified copy of his Complaint, 16 and the summons so that he may serve these Defendants. Upon receipt of this “IFP 17 Package,” Plaintiff must complete a Form 285 for each Defendant as completely and 18 accurately as possible, include an address where each Defendant may be found, and 19 return the Forms to the United States Marshal according to the instructions the Clerk 20 provides in the letter accompanying the IFP package. 21 (2) ORDERS the U.S. Marshal to serve a copy of the Complaint and Summons 22 upon Defendants as directed by Plaintiff on each USM Form 285 provided to him. All costs 23 of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. 24 Civ. P. 4(c)(3); 25 (3) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 26 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 27 counsel, a copy of every further pleading, motion, or other document submitted for the 28 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include, with every 1 |}original document he seeks to file with the Clerk of the Court, a certificate stating the 2 |}manner in which a true and correct copy of that document has been was served or 3 || Defendants or their counsel, and the date of that service. See S.D. Cal. Civ. L. R. 5.2. Any 4 document received by the Court which has not been properly filed with the Clerk, or whict 5 || fails to include a Certificate of Service upon Defendants, may be disregarded. 6 IT IS SO ORDERED. 7 é 8 || DATED: January 22, 2020 (pill A (Bashan. 6 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _A-