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Hambolu v. Fortress Investment Group

United States District Court, N.D. California

April 19, 2017

BAMIDELE HAMBOLU, et al., Plaintiffs,
v.
FORTRESS INVESTMENT GROUP, et al., Defendants.

          ORDER RE PREFILING REVIEW

          EDWARD M CHEN, United States District Judge

         Plaintiffs Lynn Gavin and Bamidele Hambolu (mother and son, respectively) initially filed the instant putative class action in the Central District of California. See Docket No. 1 (complaint).[1] Plaintiffs, proceeding pro se, applied to proceed in forma pauperis (“IFP”). See Docket Nos. 2-3 (IFP application). In February 2017, the Central District court transferred the action to this District. See Docket No. 9 (Order at 2). In its transfer order, the Central District court took note, inter alia, of an order from this Court finding Ms. Gavin to be a vexatious litigant. See id. (citing Gavin v. City & County of San Francisco, No. 15-CV-05202-EMC, 2016 WL 126937, at *5 (N.D. Cal. Jan. 12, 2016)).

         Upon transfer to this District, the assigned judge, Judge Corley, referred the case to the undersigned (acting as General Duty Judge) for a pre-filing review based on Ms. Gavin's status as a vexatious litigant. Having reviewed the complaint in this action, as well as the record of other cases involving Ms. Gavin and Mr. Hambolu, the Court hereby rules as follows. As to Ms. Gavin, her claims for relief are barred as they fall within the scope of the pre-filing review order.

         With respect to Mr. Hambolu, who is a co-plaintiff in this case, the Court orders the Clerk of the Court to reassign the entirety of the case, including Mr. Hambolu's claims, to the undersigned. The Court grants Mr. Hambolu's IFP application but dismisses his claims with prejudice and further orders Mr. Hambolu to show cause as to why he should not be deemed a vexatious litigant subject to the same pre-filing review requirement as his mother.

         I. PRE-FILING REVIEW WIH RESPECT TO MS. GAVIN

         Pursuant to the vexatious litigant order, Ms. Gavin “must obtain leave of court before filing any further suits based on her allegations that she was wrongfully evicted from the Parkmerced apartments in 2012.” See Gavin, 2016 WL 126937, at *5.

         Despite the fact that Ms. Gavin now files this case as a putative class action, there is significant overlap in operative facts between this complaint and her previous eleven complaints alleging wrongful eviction from the Parkmerced apartments in 2012. Specifically, in the pending suit, Ms. Gavin complains of conduct by Defendants Parkmerced Investors Properties, LLC, Parkmerced investors, and a third-party billing service company called American Utility Services for their role in Parkmerced's practice of providing and filing allegedly improper eviction notices due to usurious utility fees against Plaintiffs and other members of the putative class. See Docket No. 1 (Compl. ¶¶ 2-6, 14). Ms. Gavin alleges, inter alia, that Defendants engaged in practices that violate the Fair Debt Collections Practice Act (“FDCPA”), 15 U.S.C. § 1692(e), and that constitute wrongful eviction.[2] Since this case arises from Ms. Gavin's Parkmerced eviction in 2012, [3] this case falls squarely within this Court's previous pre-filing review order barring Ms. Gavin from filing any further suits based on her alleged wrongful eviction from Parkmerced apartments. See Gavin, 2016 WL 126937, at *5. Thus, Ms. Gavin is barred from filing suit.

         II. MR. HAMBOLU'S IN FORMA PAUPERIS APPLICATION

         Since Ms. Gavin is barred from filing this suit, only Mr. Hambolu remains as a named plaintiff in this putative class action. The Court now considers Mr. Hambolu's IFP application.

         When presented with an IFP application, a court must first determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require an applicant to demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854 (10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339). In his IFP application, Mr. Hambolu states that he is currently unemployed; does not own any valuable property, including a car or real estate; does not own any cash; and does not have any money in a bank account. See Docket No. 3 (IFP application). Given this information, Mr. Hambolu's application to proceed IFP is hereby granted.

         However, because the Court is granting Mr. Hambolu's IFP application, it must now review his claims pursuant to 28 U.S.C. § 1915(e)(2)(B). Under this statute, a court is required to dismiss a case at any time if the court determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In the instant case, the Court finds that dismissal of Mr. Hambolu's federal claims is warranted because he has failed to state a claim for relief and/or the claims are precluded by res judicata.

         As indicated above, Mr. Hambolu has asserted the following federal claims: violation of the FDCPA, violation of § 1983, and violation of Title VIII of the 1968 Civil Rights Act (i.e., the Fair Housing Act (“FHA”)). Mr. Hambolu has failed to state a claim for a FDCPA violation because it is barred by the statute of limitations. A claim made pursuant to the FDCPA must be filed within one year from the date on which the alleged FDCPA violation could have been discovered. See 15 U.S.C. § 1692k(d) (“An action to enforce any liability created by this subchapter [of the FDCPA] may be brought . . . within one year from the date on which the violation occurs.”); Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 939 (9th Cir. 2009) (“A limitations period begins to run when the plaintiff knows or has reason to know of the injury which is the basis of the action.”). The gist of Mr. Hambolu's FDCPA claim is that Defendants issued flawed eviction notices that, inter alia, failed to disclose that the named Plaintiffs were subsidized tenants. Generously reading Mr. Hambolu's litigation history here, the first time Mr. Hambolu had reason to know of the alleged FDCPA violations was at least November 14, 2014, when Mr. Hambolu filed a complaint in which he alleged that he was wrongfully evicted from the Parkmerced apartments due to defective eviction notices that failed to disclose that he and his family were subsidized tenants. See Gavin v. FCOF PM EQ LLC, No. 14-4582-RS (Docket No. 1) (Compl. ¶¶ 178-80). However, at the time, Mr. Hambolu did not allege a FDCPA violation and the action was dismissed with prejudice for failure to prosecute after Mr. Hambolu and his mother failed to amend their complaint as instructed by the court. See id. (Docket No. 14) (order). Since it is long past the one-year statute of limitations, Mr. Hambolu's FDCPA claim is time barred.

         As for the § 1983 claim, such a claim exists only against state actors; Mr. Hambolu has sued only private individuals and companies and therefore he has failed to state a claim for relief. While there are certain circumstances where a private actor's conduct may be deemed state action for purposes of § 1983, see Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (“recogniz[ing] at least four different criteria, or tests, used to identify state action: '(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus'”), Mr. Hambolu has made no allegations that would implicate state action here. Moreover, it is implausible that Mr. Hambolu could implicate state action because “detailed regulation of and substantial funding for private actors are not sufficient to transform the party's conduct into state action.” Jensen v. Lane Cty., 222 F.3d 570, 575 (9th Cir. 2000) (citing Blum v. Yaretsky, 457 U.S. 991, 1011 (1982)).

         Finally, as to the FHA claim, Mr. Hambolu alleges that Defendant Parkmerced's eviction notices disparately impact subsidized tenants and people of color in violation of the FHA. See Docket No. 1 (Compl. ¶¶ 161-62). In addition to a potential time-bar defense (i.e., 42 U.S.C. § 3613 provides for a two-year statute of limitations for FHA claims), there are serious deficiencies in Mr. Hambolu's pleading since subsidized tenants are not a protected class under the FHA and conclusory claims of racial imbalance are insufficient to establish a prima facie case of disparate treatment. See Texas Dep't of Housing & Community Affairs v. InclusiveCommunities Project, Inc.,135 S.Ct. 2507, 2523 (2015) (“Racial imbalance . . ...


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