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Roohan v. Nationstar Mortgage

United States District Court, S.D. California

March 21, 2018

JAMES R. ROOHAN, Plaintiff,
v.
NATIONAL MORTGAGE, et. al. Defendants.

          1. DENYING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. §1915(A) [DOC. NO. 2]; AND 2. DISMISSING THE COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §1915(E)(2)(B)(II) [DOC. NO. 1]

          Hon. John A. Houston United States District Judge.

         This matter comes before the Court on motion for leave to proceed in forma pauperis (“IFP”). On September 9, 2017, the Court received the Complaint signed by James Roohan, proceeding pro se (“Plaintiff”), suing on behalf of himself against National Mortgage, Clear Recon Corp, Sage Home Mortgage, and Rachel Callahan (collectively “Defendants”). On the same day, Plaintiff filed a motion for leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a).

         After a careful review of the record, and for the reasons set forth below, the Court (1) DENIES Plaintiff's motion for leave to proceed IFP, [Doc. No. 2]; (2) DISMISSES the action without prejudice; and (3) GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint which cures all the deficiencies described in this Order.

         I. Motion for Leave to Proceed IFP

         All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. This includes a $350 statutory fee and an administrative fee of $50. See U.S.C. § 1914(a); Judicial Conference of Fees, District Court Misc. Fee Schedule, § 14 [eff. Dec. 1, 2014]. The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 492 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to file an IFP when plaintiffs submit an affidavit, including a statement of all of their assets, showing the inability to pay the statutory filing fee. See 28 U.S.C. § 1915(a).

         Plaintiff, James Roohan, has submitted an application to proceed in district court without paying fees or costs. See Doc. No. 2 at 2. Plaintiff indicates that his gross pay is between $1700 and $1900 per month, and his take-home pay is the same. He lists $100 in cash or in a checking or savings account. Id. at 1, 2. Plaintiff also indicates that he does not own an automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value and has regular monthly expenses i.e., housing utilities, credit cards, food, and medical. Id. at 2. Plaintiff has a seventeen-year-old daughter who depends on him for support and has miscellaneous credit card debt of $15, 000. Id.

         Although Plaintiff provides a general list, he fails to itemize specific dollar amounts for each monthly expense as required under paragraph 2 on page 2 of the application. Id. These omissions render the application incomplete and insufficient for the Court to issue a determination as to Plaintiff's ability to pay the filing fee required to pursue the instant action. As such, Plaintiff's motion for leave to proceed in forma pauperis is DENIED without prejudice.

         II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)

         A. Standard of Review

         Plaintiff seeks leave to proceed IFP, pursuant to 28 U.S.C. § 1915(a). Accordingly, his Complaint is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, . . . [or] fail[s] to state a claim upon which relief may be granted.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015). “[S]ection 1915(e) not only permits, but requires, a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

         The standard under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive dismissal, the complaint must contain “a short and plain statement of the claim that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Thus, under Rule 8(a)(2), a Plaintiff is required to plead more than an unadorned accusation. Id.

         Furthermore, “in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” See Fed. R. Civ. P. 9(b). “‘The circumstances constituting [an] alleged fraud' must be ‘specific enough to give defendants notice of the particular misconduct so that they can defend against the charge and not just deny that they have done anything wrong.'” Screen Capital Int'l Corp. v. Library Asset Acquisition Co., 510 B.R. 266, 274 (C.D. Cal. 2014). Thus, “[t]o avoid dismissal for inadequacy under Rule 9(b), [the] complaint would need to state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.” Sanford v. MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir. 2010).

         While courts are to construe pro se papers and pleadings liberally, it may not “supply essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         B. ...


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