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de Beauvoir's v. Advanta Bank Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 28, 2007

ELIZABETH E. DE BEAUVOIR'S, AND GERARD L. DE BEAUVOIR'S, PLAINTIFFS,
v.
ADVANTA BANK CORP. A/K/A ADVANTA CREDIT CARDS, DEFENDANT.

The opinion of the court was delivered by: Hayes, Judge

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS

Pending before the Court is Plaintiffs' second motion to proceed in forma pauperis. (Doc. # 4).

DISCUSSION & ORDER

All parties instituting a civil action, suit, or proceeding in a district court of the United States, other than a petition for writ of habeas corpus, must pay a filing fee of $350.00. 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay the filing fee only if the party is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).

In their accompanying affidavit, Plaintiffs Elizabeth E. de Beauvoir's and Gerard L. de Beauvoir's state that they are not employed and together receive approximately $910.00 per month.

Plaintiffs also indicate a checking or savings account balance of $10.00, and ownership of one vehicle, a 2000 Kia Sportage Van. Plaintiffs' affidavit indicates that they do not have monthly expenses, and have no debt.

After reviewing Plaintiffs' motion to proceed in forma paupers and the accompanying affidavit, the Court concludes that Plaintiffs are not entitled to proceed in forma pauperis given their monthly income and lack of expenses.

Plaintiffs' motion to proceed in forma pauperis (Doc. # 2) is DENIED. Plaintiff shall, on or before Friday, December 21, 2007, pay the requisite $350.00 filing fee. If Plaintiffs fail to submit payment on or before Friday, December 21, 2007, the Court will close this case.

IT IS SO ORDERED.

WILLIAM Q. HAYES United States District Judge

20071128

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