Wynn v. Regus Management Group LLC

• Court: District Court, S.D. New York
• Decided: June 30, 2021
• Docket: 7:21-cv-03503
• Status: Unknown

Opinion

USDC SDNY UNITED STATES DISTRICT COURT err TONIC ALLY FILED SOUTHERN DISTRICT OF NEW YORK □□

ERIC WYNN, DATE FILED: 9/30/2021 Plaintiff, -against- 21-CV-3503 (NSR) DAVID SANDERS; TUCKER ALBIN & ORDER OF SERVICE ASSOCIATES; ALLEN HUMPHRIES, Defendants. NELSON S. ROMAN, United States District Judge: Plaintiff, appearing pro se, brings this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692. By order dated April 26, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis. (IFP) STANDARD OF REVIEW The Court must dismiss an IFP complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

DISCUSSION A. Allen Humphries Plaintiff names Allen Humphries as a defendant in the caption of the complaint, but the body of the complaint does not contain allegations against him. See Iwachiw v. New York State Dep’ t of Motor Vehicles, 299 F. Supp.2d 117, 121 (E.D.N.Y. 2004) (“ [W]here the complaint names a defendant in the caption but contains no allegations indicating exactly how the

defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted” ) (citations omitted)), aff’d, 396 F.3d 525 (2d Cir. 2005). The Court dismisses the claims against Humphries without prejudice. If Plaintiff wishes to assert claims against Humphries, he may file a second amended complaint and assert facts showing his involvement in what occurred on or before August 6, 2021. A blank amended complaint form is attached. Plaintiff is further advised that if he amends his complaint, the new amended complaint will become the operative document. In other words, if he were to file an amended complaint that only added new allegations against Humphries, it would be a bad idea as those would be the only allegations in the record before the Court. Instead, he should include all

allegations that merit inclusion in the complaint in order to clearly and legibly state his claims. In the event that Plaintiff does not amend his complaint on or before August 6, 2021, or seek an extension to his pleading deadline, the Court may dismiss claims against Allen Humphries with prejudice. B. Order of Service Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all 2 process . . . in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that summonses and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served

summonses and the complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. If the complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule 4(m).”). To allow Plaintiff to effect service on Defendants David Sanders and Tucker Albin and

Associates through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for each of these defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the defendants. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.

3 CONCLUSION The claims against Allen Humphries are dismissed with leave to replead. 28 U.S.C. § 1915(e)(2)(B)ai). The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package and to show proof of service on the docket. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for David Sanders and Tucker Albin and Associates and deliver to the U.S. Marshals Service all documents necessary to effect service. SO ORDERED. Dated: June 30, 2021 White Plains, New York NELSONS.ROMAN- United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

David Sanders Tucker Albin and Associates 1702 North Collins Blvd. #100 Richmond, TX 75080 Tucker Albin and Associates 1702 North Collins Blvd. #100 Richmond, TX 75080

5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE eee (Incl ber if has b Write the full name of each plaintiff. tenet) Orne nes

against. SECOND AMENDED COMPLAINT Do you want a jury trial? OYes ONo

Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section Il.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? ☐ Federal Question ☐ Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , , is a citizen of the State of (Plaintiff’s name)

(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff. If the defendant is an individual:

The defendant, , is a citizen of the State of (Defendant’s name) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant. II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed. First Name Middle Initial Last Name

Street Address

County, City State Zip Code Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 2: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 3: First Name Last Name Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 4: First Name Last Name Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served) County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order. V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. Dated Plaintiff’sSignature First Name Middle Initial Last Name Street Address County, City State Zip Code Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: ☐Yes ☐ No If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.