Opinion
No. 11-03850 CW
10-20-2011
DWAYNE WILLIAM MACK and NATHANIEL BASOLA SOBAYO, dba KINGSWAY CAPITAL PARTNERS, Plaintiffs, v. PNC MORTGAGE, et al., Defendants.
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF SOBAYO'S APPLICATION TO PROCEED IN FORMA PAUPERIS, GRANTING PLAINTIFF MACK'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiffs Dwayne William Mack and Nathaniel Basola Sobayo, dba Kingsway Capital Partners, file applications for leave to proceed in forma pauperis (IFP). The matter was decided on the papers. Having considered the papers filed by Plaintiffs, the Court denies Plaintiff Sobayo's application to proceed IFP, grants Plaintiff Mack's application to proceed IFP and dismisses the complaint with leave to amend.
A court may authorize a plaintiff to prosecute an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or provide such security. See 28 U.S.C. § 1915(a).
A review of Plaintiff Sobayo's application to proceed IFP shows that it is incomplete. Mr. Sobayo's application indicates that he has no income, no assets and one monthly expense consisting of a $295.00 car payment. Clearly, Mr. Sobayo has other expenses that he has not listed and income from some source that he has not listed.
Therefore, Plaintiff Sobayo's application to proceed IFP is denied. However, he is granted leave to supplement his application. If he chooses to supplement his application, he must do so within fourteen days from the date of this order. If he does not file a supplemental application within this time, his claims will be dismissed for failure to prosecute.
Furthermore, Plaintiffs' complaint alleges state law claims, over which the Court does not have jurisdiction. However, within the first cause of action to set aside the trustee's sale, Plaintiffs appear to allege a claim under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., over which this Court would have federal question jurisdiction. Therefore, if Plaintiffs wish to bring a cause of action for violation of the FDCPA, they must submit an amended complaint alleging, as a separate cause of action, the FDCPA claim. They must file the amended complaint within fourteen days of the date of this order. If they do not submit an amended complaint within this time period, their case will be dismissed without prejudice to refiling in state court.
IT IS SO ORDERED.
CLAUDIA WILKEN
United States District Judge
DWAYNE WILLIAM MACK et al, Plaintiff,
v.
PNC MORTGAGE et al, Defendant.
Case Number: CV11-03850 CW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on October 20, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
Dwayne William Mack
2148 University Avenue
East Palo Alto, CA 94303
Nathaniel Basola Sobayo
2148 University Avenue
East Palo Alto, CA 94303
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk