White v. General Revenue Corporation ( 2024 )

2 DISTRICT OF NEVADA 2 3 LEAHA WHITE, Case No. 2:24-cv-00934-JAD-EJY 3 4 Plaintiff, 4 ORDER 5 v. 5 6 GENERAL REVENUE CORPORATION, 6 7 Defendant. 7 8 8 9 Pending before the Court is Plaintiff’s in forma pauperis application and Complaint. ECF 9 10 Nos. 1, 1-2. 10 11 I. IN FORMA PAUPERIS APPLICATION 11 12 Plaintiff, a non-inmate, filed a complete application to proceed in forma pauperis. Because 12 13 Plaintiff submitted the declaration required by 28 U.S.C. 1915(a) showing an inability to prepay fees 13 14 or costs or give security for them, the Court grants her request to proceed in forma pauperis. 14 15 II. SCREENING THE COMPLAINT 15 16 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 17 under 28 U.S.C. § 1915(e)(2). When screening a complaint, the Court must identify cognizable 17 18 claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 18 19 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 19 20 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 20 21 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 21 22 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual 22 23 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 23 24 U.S. 662, 678 (2009) (internal quotations omitted). The court liberally construes pro se complaints 24 25 and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in 25 26 support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th 26 27 Cir. 2014) (citation omitted). 27 28 28 2 allegations of material fact are taken as true and construed in the light most favorable” to the plaintiff. 2 3 Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 3 4 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 4 5 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 5 6 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it 6 7 is clear the complaint’s deficiencies cannot be cured through amendment, a pro se plaintiff should 7 8 be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. 8 9 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 9 10 III. DISCUSSION 10 11 Plaintiff brings a claim for actual damages and statutory damages under the Federal Debt 11 12 Collection Practices Act (“FDCPA”) (ECF No. 1-2 at 1-4), and thus establishes federal question 12 13 jurisdiction. 28 U.S.C. § 1331 (federal district courts “have original jurisdiction of all civil actions 13 14 arising under the Constitution, laws, or treaties of the United States.”). Personal jurisdiction is 14 15 established because Defendant appears to do business in Nevada and has a registered agent located 15 16 in Carson City, Nevada. ECF Nos. 1-2 at 1-4, 1-3; Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 16 17 1163, 1172 (9th Cir. 2006). 17 18 To state a claim for violation of the FDCPA, “there are three threshold requirements: (1) the 18 19 plaintiff must be a ‘consumer’; (2) the defendant must be a ‘debt collector’; and (3) the defendant 19 20 must have committed some act or omission in violation of the FDCPA.” Robinson v. Managed 20 21 Accounts Receivables Corp., 654 F. Supp. 2d 1051, 1057 (C.D. Cal. 2009); see also 15 U.S.C. § 21 22 1692a(3), (6). Plaintiff alleges she is a “consumer” under the FDCPA because she allegedly owes a 22 23 balance on a collection account that appears to be for a student loan debt (ECF No. 1-2 at 2, 5-13), 23 24 which is covered by the FDCPA. 15 U.S.C. § 1692a(3); Smith v. Progressive Fin. Servs., Inc., Case 24 25 No. 6:12-CV-1704-MC, 2013 WL 3995004, at *3 (D. Or. Aug. 1, 2013) (collecting cases). Plaintiff 25 26 asserts facts demonstrating Defendant is a debt collector under the FDCPA. ECF No. 1-2 at 2; 15 26 27 U.S.C. § 1692a(6); Henson v. Santander Consumer USA Inc., 582 U.S. 79, 81 (2017). Plaintiff 27 28 sufficiently states claims that Defendant violated subsections 1692e(8), 1692g(a), and 1692f of the 28 2 jurisdiction is sufficiently stated, the Complaint may proceed. 2 3 IV. ORDER 3 4 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to proceed in forma 4 5 pauperis is GRANTED. Plaintiff will not be required to pay the filing fee of $405.00. Plaintiff is 5 6 permitted to maintain this action to conclusion without the necessary prepayment of any additional 6 7 fees or costs or the giving of a security therefor. This Order granting leave to proceed in forma 7 8 pauperis will not extend to the issuance and/or service of subpoenas at government expense. 8 9 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1-2) may proceed against 9 10 Defendant. The Clerk of Court will detach and electronically file Plaintiff’s Complaint, issue a 10 11 Summons for Defendant, and deliver a copy of Plaintiff’s Complaint, this Order, and the Summons 11 12 to the U.S. Marshal for service. 12 13 IT IS FURTHER ORDERED that the Clerk of Court will send Plaintiff one USM-285 form, 13 14 together with a copy of this Order. 14 15 IT IS FURTHER ORDERED that Plaintiff must complete the USM-285 form for Defendant 15 16 and return the same to the Clerk’s Office no later than June 11, 2024. Plaintiff must provide an 16 17 address within the State of Nevada for service, which may be found on the Nevada Secretary of 17 18 State’s website as all entities doing business in the State of Nevada must have a resident agent upon 18 19 whom service of process may be made. 19 20 IT IS FURTHER ORDERED that within one day of receipt of the completed USM-285 form 20 21 in the Clerk’s Office, the Clerk must deliver a copy of the form to the U.S. Marshal for service on 21 22 Defendant. 22 23 IT IS FURTHER ORDERED that the U.S. Marshal must attempt to effect service of this 23 24 Order, Plaintiff’s Complaint, and the Summons on Defendant no later than twenty-one (21) days 24 25 after receipt of the completed USM-285 form. 25 26 IT IS FURTHER ORDERED that Plaintiff must serve Defendant, or, if appearance is entered 26 27 by counsel, upon Defendant’s counsel, a copy of every pleading, motion, or other document 27 28 submitted for consideration by the Court. Plaintiff will include with the original papers submitted 28 2 Defendant or Defendant’s counsel. The Court may disregard any paper received by a District or 2 3 Magistrate Judge that is not filed with the Clerk, and any paper received by a District or Magistrate 3 4 Judge, or the Clerk that fails to include a certificate of service. 4 5 IT IS FURTHER ORDERED that if Plaintiff fails to comply with this Order, Plaintiff’s 5 6 claims against Defendant may be subject to dismissal for failure to complete service of process 6 7 pursuant to Fed. R. Civ. P. 4(m). 7 8 DATED this 21st day of May, 2024. 8 9 9 10 10 ELAYNA J. YOUCHAH 11 UNITED STATES MAGISTRATE JUDGE 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28