Opinion
SA-23-CV-1491-FB (HJB)
01-11-2024
KIMBERLY CHEVELLE FORD d/b/a KCF Express Living Trust, Plaintiff, v. CEO ROBERT S. KEANE d/b/a Vistaprint, USA, Inc. d/b/a Vistaprint.Com.Inc. d/b/a Cimpress USA, Inc. and John and Jane Does 1-15 all whose true names are unknown, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable United States District Judge Fred Biery:
Before the Court is the status of the above case, which was automatically referred to the undersigned for disposition of the application to proceed in forma pauperis (“IFP”) and a review under 28 U.S.C. § 1915(e), pursuant to this Division's October 8, 2019, Standing Order. (See Text Entry dated Dec. 5, 2023.) Because Plaintiff has neither paid the filing fee nor moved to withdraw her motion for leave to proceed IFP, I recommend that this complaint be DISMISSED WITHOUT PREJUDICE.
A complaint may not proceed in federal court until the plaintiff has either paid the filing fee or been granted leave to proceed IFP. See 28 U.S.C. §§ 1914, 1915. A plaintiff who wishes to proceed IFP must submit “an affidavit that includes a statement of all assets he possesses” and indicates “that the person is unable to pay [filing] fees or give security therefor.” 28 U.S.C. § 1915(a)(1). A complaint is “subject to dismissal unless Plaintiff either files the full . . . civil filing fee required by 28 U.S.C. § 1914(a), or a properly supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a).” Murillo v. Ramos, No. 22-CV-548-MMA (AGS), 2022 WL 1506280, at *2 (S.D. Cal. May 12, 2022); see Martin v. Gilbert, No. 4:18-CV-0881, 2018 WL 5300213, at *1 n.1 (E.D. Tex. Oct. 10, 2018) (same).
A plaintiff who wishes to proceed IFP must submit “an affidavit that includes a statement of all assets [she] possesses” and indicates “that the person is unable to pay [filing] fees or give security therefor.” 28 U.S.C. § 1915(a)(1). In this case, Plaintiff submitted an IFP application, but included no information as to her employment, assets, or liabilities. (Docket Entry 1.) Accordingly, the undersigned issued a Show Cause Order, requiring Plaintiff to either pay the full filing fee or submit the affidavit required by § 1915. (See Docket Entry 4, at 3.)
In response, Plaintiff neither submitted the required affidavit nor paid the $402 filing and administrative fees. Instead, she submitted a motion to deposit $60,000,000 in funds with the Court in an interest-bearing account. (Docket Entry 5.) Plaintiff did not actually submit any such funds; rather, she submitted a document entitled “Conveyance in Certificated Security,” which included her birth certificate and numerous nonsensical legal phrases. (See id.) In light of this purported “conveyance,” Plaintiff subsequently filed a motion to remove her previously-filed IFP application. (Docket Entry 7.)
The ”conveyance” filed by Plaintiff is a frivolous document. In light of Plaintiff's failure to either submit a proper IFP application or pay the filing fee, contrary to the order of the Court, her complaint should be dismissed. See Murillo, 2022 WL 1506280, at *2; Long v. Simmons, 77 F.3d 878, 879 (5th Cir. 1996) (court may “dismiss action sua sponte under 41(b) for failure to comply with court order”).
For the foregoing reasons, I recommend that Plaintiff's complaint (Docket Entry 1) be DISMISSED WITHOUT PREJUDICE.
Instructions for Service and Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).