The Estate of Jean Ellyn Tuck v. CF Real Estate Services ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 THE ESTATE OF JEAN ELLYN TUCK, Case No.: 21-CV-920-JLS (BLM) and THE ESTATE OF ROBERT JAMES 11 TUCK ORDER: (1) GRANTING MOTION 12 TO PROCEED IN FORMA Plaintiff, PAUPERIS; AND (2) DISMISSING 13 v. COMPLAINT FOR IMPROPER 14 VENUE CF REAL ESTATE SERVICES, 15 Defendant. (ECF No. 2) 16 17 18 Presently before the Court is Plaintiffs Estate of Jean Ellyn Tuck and Estate of 19 Robert James Tuck’s (collectively, “Plaintiffs” or “Plaintiff Estates”) Motion to Proceed 20 In Forma Pauperis (“IFP”) (“Mot.,” ECF No. 2). Plaintiff Estates, proceeding pro se,1 21 22 1 The Court notes that, pursuant to this District’s Local Rules: 23 Only natural persons representing their individual interests in propia 24 persona may appear in court without representation by an attorney permitted to practice pursuant to Civil Local Rule 83.3. All other parties, including 25 corporations, partnerships and other legal entities, may appear in court only through an attorney permitted to practice pursuant to Civil Local Rule 83.3. 26 S.D. Cal. Civ L.R. 83.3(j); see also Iannaccone v. Law, 142 F.3d 553, 559 (2nd Cir. 1998) (holding 27 administrator of estate may not appear pro se on behalf of estate); Jones v. Corr. Med. Servs., 401 F.3d 28 950, 951–52 (8th Cir. 2005) (holding non-attorney administrator of decedent’s estate may not proceed pro 1 appear to allege conversion claims against Defendant CF Real Estate Services. See 2 generally “Compl.,” ECF No. 1. Having considered carefully Plaintiffs’ Complaint, IFP 3 Motion, and the applicable law, the Court GRANTS Plaintiffs’ IFP Motion and 4 DISMISSES WITHOUT PREJUDICE Plaintiffs’ Complaint. 5 I. Motion to Proceed IFP 6 All parties instituting any civil action, suit, or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $402.2 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if the party is granted leave to proceed in forma pauperis pursuant 10 to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A 11 federal court may authorize the commencement of an action without the prepayment of 12 fees if the party submits an affidavit, including a statement of assets, showing that the party 13 is unable to pay the required filing fee. 28 U.S.C. § 1915(a). 14 Plaintiffs have filed an affidavit indicating that they have no income or other assets. 15 See Mot. at 1. Plaintiffs report no monthly expenses. Id. at 2. Plaintiffs have a $0.00 16 balance in their bank accounts. Id. Given these facts, the Court concludes that Plaintiffs 17 /// 18 19 20 himself as “Executor.” Mot. at 2. The Ninth Circuit has held that a party’s status as trustee does not include the right to present pro se arguments on behalf of a trust unless he is the actual beneficial owner 21 of the claims the trust is asserting. C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also Alpha Land Co. v. Little, 238 F.R.D. 497, 502 (E.D. Cal. 2006) (“[A] trust can only be 22 represented by an attorney in federal court.” (emphasis in original)). Therefore, Mr. Finnegan cannot proceed pro se on behalf of the Plaintiff Estates unless he is the sole beneficial owner of the present claims 23 asserted by the Plaintiff Estates. If Mr. Finnegan elects to file an amended complaint on behalf of the 24 Plaintiff Estates, Mr. Finnegan must adequately demonstrate his “beneficial ownership” of the Plaintiff Estates’ claims to continue this action pro se. If Mr. Finnegan is not the beneficial owner of the Plaintiff 25 Estates’ claims, in accordance with Civil Local Rule 83.3(j), the Plaintiff Estates must secure counsel to represent them or risk dismissal of this action. 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 28 Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed 1 are unable to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiffs’ 2 Motion to Proceed IFP. 3 II. Venue 4 Upon initial review, the Court finds that Plaintiffs’ case lacks proper venue. Venue 5 may be raised by a court sua sponte where the defendant has not yet filed a responsive 6 pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 7 (9th Cir. 1986). 8 Section 1391(b) of Title 28 of the U.S. Code provides, in pertinent part, that a “civil 9 action may be brought in – (1) a judicial district in which any defendant resides, if all 10 defendants are residents of the State in which the district is located; [or] (2) a judicial 11 district in which a substantial part of the events or omissions giving rise to the claim 12 occurred, or a substantial part of the events or omissions giving rise to the claim occurred, 13 or a substantial part of property that is the subject of the action is situated[.]” 28 U.S.C. 14 § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth Edison Co., 805 15 F.2d 834, 842 (9th Cir. 1986). “The district court of a district in which is filed a case laying 16 venue in the wrong division or district shall dismiss, or if it be in the interests of justice, 17 transfer such case to any district or division in which it could have been brought.” 28 18 U.S.C. § 1406(a). 19 Plaintiffs allege property was stolen out of events occurring in Atlanta, Georgia, 20 which is located in Fulton County. See Compl. at 4; 28 U.S.C. § 90(a) (“The Northern 21 District [of Georgia] comprises . . . the count[y] of . . . Fulton . . . .”) Moreover, the 22 Defendant is alleged to be incorporated in Georgia, with its principal place of business also 23 in Georgia. See Compl. at 4. No event or omission giving rise to Plaintiff’s claim is alleged 24 to have occurred in either San Diego or Imperial County, and no Defendant is alleged to 25 reside here. See 28 U.S.C. § 84(d) (“The Southern District of California comprises the 26 counties of Imperial and San Diego.”). 27 /// 28 /// 1 Therefore, the Court finds that venue is proper in the Northern District of Georgia 2 || pursuant to 28 U.S.C. § 90(a), but not in the Southern District of California pursuant to 28 3 ||U.S.C. § 84(d). See 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 4 Conclusion 5 Based on the foregoing, the Court GRANTS Plaintiffs’ Motion to Proceed IFP, 6 ||(ECF No. 2) and DISMISSES WITHOUT PREJUDICE Plaintiffs’ Complaint sua 7 sponte for improper venue. Plaintiffs MAY FILE an amended complaint that sets forth a 8 || basis for venue in the Southern District of California within forty-five (45) days of the date 9 which this Order is electronically docketed. Any amended filing must be complete in 10 itself, without reference to Plaintiffs’ original Complaint. Any claim not re-alleged in 11 || Plaintiffs’ amended complaint will be considered waived. See S.D. Cal. Civ L.R. 15.1; 12 || Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 13 || (“[A]n amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693 14 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are 15 re-alleged in an amended pleading may be “considered waived if not repled”’). 16 Should Plaintiffs fail to file an amended complaint within the time provided, the 17 ||Court will enter a final order dismissing this civil action with prejudice. See Lira v. 18 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 19 ||the opportunity to fix his complaint, a district court may convert the dismissal of the 20 ||complaint into dismissal of the entire action.”). Such dismissal would be without prejudice 21 Plaintiffs refiling their claims in the proper venue. 22 IT IS SO ORDERED. 23 ||Dated: May 27, 2021 tt 24 pee Janis L. Sammartino 5 United States District Judge 26 27 28