Segal v. Segel

• Court: District Court, S.D. California
• Decided: July 22, 2020
• Docket: 3:20-cv-01382
• Status: Unknown

Opinion

7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10 SOPHIA SEGAL, Case No. 20-cv-01382-BAS-JLB 11 Plaintiff, ORDER GRANTING MOTION 12 v. FOR LEAVE TO PROCEED 13 IN FORMA PAUPERIS JASON SEGEL, et al., [ECF No. 2] 14 Defendants. 15 16 On July 21, 2020, Plaintiff Sophia Segal, proceeding pro se, filed a complaint 17 alleging copyright and trademark infringement against numerous Defendants. (Compl., 18 ECF No. 1.) On the same day, Plaintiff also filed a motion seeking leave to proceed in 19 forma pauperis (“IFP Motion”). (ECF No. 2.) 20 Under 28 U.S.C. § 1915, a litigant who is unable to pay the filing fee to commence 21 a legal action because of indigency may petition the court to proceed without making such 22 payment. The determination of indigency falls within the district court’s discretion. Cal. 23 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 24 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing court to 25 exercise its sound discretion in determining whether the affiant has satisfied the statute’s 26 requirement of indigency”). It is well-settled that a party need not be completely destitute 27 to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 28 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 1 which states that one cannot because of his poverty pay or give security for costs . . . and 2 still be able to provide himself and dependents with the necessities of life.” Id. at 339. At 3 the same time, however, “the same even-handed care must be employed to assure that 4 federal funds are not squandered to underwrite, at public expense . . . the remonstrances of 5 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 6 v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 7 District courts, therefore, tend to reject IFP applications where the applicant can pay 8 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 9 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds by Olivares v. 10 Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that the district court did not abuse its 11 discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 12 salary and who received $110 per month from family). Moreover, “in forma pauperis status 13 may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult 14 Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 15 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. 16 June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 17 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 18 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 19 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 20 Having read and considered Plaintiff’s application, the Court finds that Plaintiff 21 meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is unemployed and 22 receives no income other than $312.00 monthly in unemployment payments. (IFP Mot. ¶¶ 23 1– 3.) Plaintiff owns one vehicle valued at $9,000.00 and lists a balance of $32.65 in her 24 checking account, and $4.00 in her savings. (Id. ¶¶ 4, 5.) Plaintiff’s monthly expenses, 25 which include utilities, food, and transportation, total $307.00, an amount nearly equaling 26 her income from unemployment. (Id. ¶ 8.) Further, Plaintiff notes that the COVID-19 27 pandemic has shut down her industry of work and that due to the lockdown and her role as 28 a caregiver for an ailing parent, she has a very limited ability to seek work. (Id. ¶ 11.) 1 Given these circumstances, the Court finds that requiring Plaintiff to pay the $400.00 court 2 filing fee would impair her ability to obtain the necessities of life. See Adkins, 335 U.S. at 3 339. 4 Accordingly, the Court GRANTS Plaintiff’s IFP Motion (ECF No. 2.) However, if 5 it appears at any time in the future that Plaintiff’s financial picture has improved for any 6 reason, the Court will direct Plaintiff to pay the filing fee to the Clerk of the Court. This 7 includes any recovery Plaintiff may realize from this suit or others, and any assistance 8 Plaintiff may receive from family or the government. 9 Further, the Court: 10 (1) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 11 1) and forward it to Plaintiff along with blank U.S. Marshal Forms 285 for Defendants 12 Jason Segel, The Jason Segel Company, Kirsten Miller, Random House LLC, and 13 OneWorld Publications (collectively, “Defendants”). In addition, the Clerk will provide 14 Plaintiff with a certified copy of this Order, a certified copy of her Complaint, and the 15 summons so that she may serve these Defendants. Upon receipt of this “IFP Package,” 16 Plaintiff must complete a Form 285 for each Defendant as completely and accurately as 17 possible, include an address where each Defendant may be found, and return the Forms 18 to the United States Marshal according to the instructions the Clerk provides in the letter 19 accompanying the IFP package. 20 (2) ORDERS the U.S. Marshal to serve a copy of the Complaint and Summons 21 upon Defendants as directed by Plaintiff on each USM Form 285 provided to her. All costs 22 of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. 23 Civ. P. 4(c)(3); 24 (3) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 25 serve upon Defendants—or, if appearance has been entered by counsel, upon Defendants’ 26 counsel—a copy of every further pleading, motion, or other document submitted for the 27 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include, with every 28 original document she seeks to file with the Clerk of the Court, a certificate stating the 1 |}manner in which a true and correct copy of that document has been was served or 2 || Defendants or their counsel, and the date of that service. See S.D. Cal. Civ. L. R. 5.2. Any 3 document received by the Court which has not been properly filed with the Clerk, or whict 4 || fails to include a Certificate of Service upon Defendants, may be disregarded. 5 IT IS SO ORDERED. 6 é 7 DATED: July 22, 2020 (pill 4 (Aashan. 6 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _A-