Duell Family Trust v. Ford

• Court: District Court, S.D. California
• Decided: February 27, 2024
• Docket: 3:24-cv-00316
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DUELL FAMILY TRUST, TODD ALAN Case No.: 24-CV-316 JLS (VET) DUELL, Todd Alan Duell, living man, 12 Trustee, Secured Party, Creditor, Holder ORDER (1) DENYING WITHOUT 13 In Due Course, Real Party In Interest, PREJUDICE PLAINTIFF’S APPLICATION TO PROCEED IN 14 Plaintiff, FORMA PAUPERIS; AND (2) 15 v. DISMISSING WITHOUT PREJUDICE PLAINTIFF’S 16 GOSCH FORD, individual; MATT COMPLAINT. GOSCH, Owner, individual; FORD 17 MOTOR CREDIT COMPANY, (ECF Nos. 1, 2) 18 individual; MARION HARRIS, CEO, individual; and DOES 1-10, inclusive, 19 Defendants. 20 21 22 Presently before the Court is Plaintiff Todd Alan Duell’s Complaint (“Compl.,” ECF 23 No. 1)1 and Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP 24 Appl.,” ECF No. 2). Having carefully considered Plaintiff’s Complaint, Plaintiff’s 25 submissions, and the applicable law, the Court DENIES WITHOUT PREJUDICE 26 27 28 1 All citations to the Complaint refer to the blue page numbers affixed to the top-left corner of each page 1 Plaintiff’s IFP Application and DISMISSES WITHOUT PREJUDICE Plaintiff’s 2 Complaint for failure to pay the required filing fee. 3 All parties instituting a civil action, suit, or proceeding in a district court of the 4 United States, other than a petition for writ of habeas corpus, must pay a filing fee of $402.2 5 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 6 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 7 § 1915(a)(1), which reads as follows: 8 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 9 proceeding . . . without prepayment of fees or security therefor, 10 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 11 such fees or give security therefor. 12 13 As § 1915(a)(1) does not itself define what constitutes insufficient assets to warrant IFP 14 status, the determination of indigency falls within the district court’s discretion. See Cal. 15 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 16 requires the reviewing court to exercise its sound discretion in determining whether the 17 affiant has satisfied the statute’s requirement of indigency.”), rev’d on other grounds, 506 18 U.S. 194 (1993). 19 “An affidavit in support of an IFP application is sufficient where it alleges that the 20 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 21 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours 22 & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to obtain benefits 23 of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). 24 “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, 25

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. Dec. 28 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed in 1 definiteness and certainty.’” Escobedo, 787 F.3d at 1234 (quoting United States v. 2 McQuade, 647 F.2d 938, 940 (9th Cir.1981)). 3 Here, Plaintiff indicates that he has no income save $290 per month in welfare 4 benefits, no employer, no financial accounts, and no assets. IFP Appl. at 1–3. Plaintiff 5 also reports that he has no monthly expenses. Id. at 4–5. If the information provided by 6 Plaintiff is true, Plaintiff is entitled to proceed IFP. See Escobedo, 787 F.3d at 1235. 7 But the information provided in the Complaint is inconsistent with Plaintiff’s IFP 8 Application. In Paragraph 24 of his Complaint, Plaintiff indicates that he has a “TDA bank 9 account.” Compl. at 17. Yet in his IFP application, Plaintiff indicates “N/A” with respect 10 to his accounts in financial institutions and explains that “[t]he Trust currently does not 11 have a bank account or any property as a result of embezzlement.” IFP Appl. at 2, 5. This 12 inconsistency raises the question of whether Plaintiff has accurately reported the entirety 13 of his income, assets, and accounts, whether associated with the Duell Family Trust, TODD 14 ALAN DUELL, or Todd Alan Duell. 15 Furthermore, the Court does not find it credible that Plaintiff has no expenses 16 whatsoever. See Baker v. United States, No. C23-1417-RSM, 2023 WL 6041706, at *1 17 (W.D. Wash. Sept. 14, 2023) (“[I]n indicating he has no expenses, Plaintiff does not 18 provide any information on how he pays for food, shelter, and any other basic life 19 necessities.”), report and recommendation adopted sub nom. Baker v. U.S. Dist. Ct., No. 20 C23-1417 RSM, 2023 WL 6038008 (W.D. Wash. Sept. 15, 2023); Aphrodite v. Rego, No. 21 22-CV-1597 JLS (DEB), 2022 WL 17097434, at *1 (S.D. Cal. Nov. 21, 2022) (“The Court 22 finds it incredible that Aphrodite has no assets, income, expenses, or debts 23 whatsoever . . . .). The Court has routinely granted IFP applications where plaintiffs have 24 indicated that their expenses represent a substantial portion of their monthly income. See, 25 e.g., Doe v. Regents of Univ. of Cal., No. 22-CV-1506 JLS (WVG), 2022 WL 19830146, 26 at *1 (S.D. Cal. Oct. 7, 2022). But because it lacks any information regarding Plaintiff’s 27 expenses, the Court cannot make such a finding in this case. 28 1 Given the inconsistency between Plaintiff's Complaint and Plaintiff's IFP 2 || Application—and the lack of detail Plaintiff provides regarding his expenses—Plaintiff has 3 alleged with sufficient certainty that he would be unable to afford the necessities of life 4 ||should he be required to pay the requisite filing fee. Accordingly, the Court DENIES 5 || Plaintiffs IFP Application WITHOUT PREJUDICE. Plaintiff may file a new IFP 6 || application that (1) explains the inconsistency between his Complaint and IFP Application 7 regarding his financial accounts and (2) provides full and accurate information regarding 8 ||the income, assets, expenses, and financial accounts associated with the Duell Family 9 || Trust, TODD ALAN DUELL, and Todd Alan Duell. 10 CONCLUSION 11 In light of the foregoing, IT IS HEREBY ORDERED that: 12 1. Plaintiff's DIFP Application (ECF No. 2) is DENIED WITHOUT 13 || PREJUDICE; 14 2. Plaintiffs Complaint (ECF No. 1) is DISMISSED WITHOUT 15 |} PREJUDICE for failure to prepay the filing fee mandated by 28 U.S.C. § 1914(a). 16 To proceed in this matter, Plaintiff must either (1) pay the requisite filing fees or (2) 17 || file a new IFP application clarifying the status of his financial accounts and providing full 18 || and accurate information regarding his finances. 19 The Court GRANTS Plaintiff forty-five (45) days from the date of this Order to 20 || satisfy these requirements. Should Plaintiff fail to respond adequately by the deadline set 21 || forth in this Order, the Court will enter a final order dismissing this action. See Lira v. 22 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 23 ||the opportunity to fix his complaint, a district court may convert the dismissal of the 24 ||complaint into dismissal of the entire action.”’). 25 IT IS SO ORDERED. 26 || Dated: February 26, 2024 pen Janis L. Sammartino 3g United States District Judge