Van Kush v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1343
(Filed: 21 October 2021)
NOT FOR PUBLICATION
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RYAN S. AND KALI VAN KUSH, *
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Plaintiffs, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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ORDER
On 3 May 2021, plaintiffs, proceeding pro se, filed a complaint with this Court. See
Compl., ECF No. 1. Plaintiffs also separately filed motions for leave to proceed in forma
pauperis. See Appl. to Proceed In Forma Pauperis (“R. S. Van Kush IFP”), ECF No. 2; Appl. to
Proceed In Forma Pauperis (“K. Van Kush IFP”), ECF No. 3. On 2 July 2021, the government
filed a motion to dismiss plaintiffs’ complaint. See Def.’s Mot. to Dismiss the Compl., ECF No.
8. On 15 July 2021, the Court issued an order to strike the government’s motion to dismiss for
insufficient service. See Order, ECF No. 9. On 19 July 2021, the government filed a corrected
motion to dismiss plaintiffs’ complaint. See Def.’s Mot. to Dismiss the Compl., ECF No. 10.
On 9 August 2021, the Court’s 15 July 2021 Order was returned because plaintiffs were no
longer at the address of record. See Mail Returned to Sender, ECF No. 11. Plaintiffs’ response
to the government’s motion to dismiss was due on 16 August 2021. On 13 September 2021, this
Court directed plaintiffs to respond to the government’s motion to dismiss on or before 11
October 2021. See Order (“Show Cause Order”), ECF No. 12. Plaintiffs have not responded to
the government’s motion to dismiss or the Court’s Order.
I. Plaintiffs’ In Forma Pauperis Applications
Pursuant to 28 U.S.C. § 1915(a)(1), “any court of the United States may authorize the
commencement . . . of any suit, action or proceeding . . . without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement . . . that the person is
unable to pay such fees or give security therefor.” A plaintiff need not “be absolutely destitute to
enjoy the benefit of the statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339
(1948). An affidavit demonstrating plaintiff is unable to pay the fee or provide security and “still
be able to provide himself and dependents ‘with the necessities of life’” is sufficient. Id.; see
also Waltner v. United States, 93 Fed. Cl. 139, 143 (2010) (quoting Fiebelkron v. United States,
77 Fed. Cl. 59, 62 (2007)) (stating the proper inquiry when considering an application to proceed
in forma pauperis is whether “‘paying such fees would constitute a serious hardship on the
plaintiff, not that such payment would render plaintiff destitute.’”).
Plaintiff Ryan S. Van Kush states in his application to proceed in forma pauperis he: is
currently self-employed; has not received wages since September 2020; receives unemployment;
and has some assets which “won’t last long.” See R. S. Van Kush IFP at 1–2. Plaintiff Kali Van
Kush states in her application to proceed in forma pauperis she is currently self-employed but
has “no income yet,” and has no assets. See K. Van Kush IFP at 1–2. Under these
circumstances, plaintiffs have sufficiently demonstrated they are unable to pay the Court’s filing
fee. Plaintiffs’ applications to proceed in forma pauperis are therefore granted.
II. Plaintiffs’ Failure to Comply with the Court’s 13 September 2021 Order
When a party fails to respond to any motion, or to subsequent court orders, dismissal is
not only appropriate but required to properly administer justice. “While dismissal of a claim is a
harsh action, especially to a pro se litigant, it is justified when a party fails to pursue litigation
diligently and disregards the court’s rules . . . .” Whiting v. United States, 99 Fed. Cl. 13, 17
(2011) (citing Kadin Corp. v. United States, 782 F.2d 175, 176–77 (Fed. Cir. 1986)).
Furthermore, Rule 41(b) of the Rules of the Court of Federal Claims (“RCFC”) provides “[i]f the
plaintiff fails to prosecute or comply with these rules or a court order, the court may dismiss on
its own motion or the defendant may move to dismiss the action or any claim against it.” As pro
se plaintiffs are, by their nature, unassisted, this Court may sometimes grant pro se plaintiffs
greater lenience throughout the filing process. In keeping with this permissive leniency, the
Court allowed plaintiff an additional 28 days to either file his response to the government’s
motion to dismiss or show cause why his complaint should not be dismissed for failure to
prosecute. See Show Cause Order. The Clerk’s Office mailed the 13 September 2021 Order
“along with copies of the Court’s 15 July 2021 Order, ECF No. 9, and the government’s 19 July
2021 motion to dismiss, ECF No. 10, to every address on file for plaintiffs.” Id. at 2. In the 13
September 2021 Order, the Court stated, “[i]f plaintiffs fail to respond by [11 October 2021], the
Court will have no choice but to dismiss plaintiffs’ complaint for failure to prosecute pursuant to
RCFC 41(b).” Id. Plaintiffs, however, have not responded to the government’s motion to
dismiss or the Court’s Show Cause Order; therefore, the Court must dismiss the case pursuant to
RCFC 41(b) for failure to prosecute and failure to comply with a Court order.
III. Conclusion
For the foregoing reasons, the Court GRANTS plaintiff Ryan S. Van Kush’s motion for
leave to proceed in forma pauperis, ECF No. 2, and GRANTS plaintiff Kali Van Kush’s motion
for leave to proceed in forma pauperis, ECF No. 3. Due to plaintiffs’ non-responsiveness,
specifically plaintiffs’ failure to submit or file any documents with this Court since filing their
motions to proceed in forma pauperis on 3 May 2021, despite the government filing a motion to
dismiss and the Court ordering them to respond, the Court DENIES as MOOT the
government’s motion to dismiss, ECF No. 10, and directs the Clerk to DISMISS the case
without prejudice pursuant to RCFC 41(b).
IT IS SO ORDERED.
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s/ Ryan T. Holte
RYAN T. HOLTE
Judge
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