Wilson v. Navient/ Ecmc Student Loan Providers
Decision Date | 13 February 2018 |
Docket Number | Case No.: 1:17-CV-02012-VEH |
Parties | FREDDIE WILSON, Plaintiff, v. NAVIENT/ ECMC STUDENT LOAN PROVIDERS Defendant. |
Court | U.S. District Court — Northern District of Alabama |
(Doc. 1 at 2). Wilson then claimed that the Defendant was liable for deprivation of his Constitutional right to due process (Count One); "deceptive trade practices" (Count Two); and defamation (Count Three).
The Plaintiff also sought to proceed in forma pauperis ("IFP"), and continues to do so. (Docs. 5, 10). When, as here, an IFP affidavit is sufficient on its face to demonstrate economic eligibility for IFP status, the court must "first docket the case and then proceed to the question of whether the asserted claim is frivolous."1 Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (quoting Watson v. Ault, 525 F.2d 886, 891 (11th Cir. 1976)). "An issue is frivolous when it appears that 'the legal theories are indisputably meritless.'" Ghee v. Retailers Nat. Bank, 271 F. App'x 858, 859 (11th Cir. 2008) (quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)). In other words, an IFP action is frivolous Id. at 859-60 ( )(internal quotations and citations omitted).
The Court conducted a frivolity review and dismissed Count One with prejudice. (Doc. 16 at 8). It also noted that "[t]he Complaint, as currently pleaded, is deficient because jurisdiction [under 28 U.S.C. § 1332] is unclear" because:
(Doc. 16 at 5-6) (footnote omitted) (emphasis in original). The Court also ordered the Plaintiff to file an amendment to his Complaint "which states the Plaintiff's state of citizenship." (Doc. 16 at 8).
Even though the Plaintiff alleged jurisdiction based on diversity of citizenship, the court concluded that his claims likely "aris[e] under the . . . laws . . . of the United States," making jurisdiction proper under 28 U.S.C. § 1331. (Doc. 16 at 7-8). The Court ordered the Plaintiff to file and amendment to his Complaint which states:
1) the exact federal laws and/or regulations which the Defendant violated; and 2) how the Defendant violated each law and/or regulation, including: a) the specific conduct which was in violation of the law and/or regulation; b) the names of the person or persons who engaged in the conduct described; and 3) the specific date or dates on which each instance of the conduct occurred. Furthermore, the amendment must state: 1) whether his student loan account is actually in arrears; 2) the date, if any, that it first became in arrears; and 3) the date when any complained of actions by the Defendant occurred.
(Doc. 16 at 8). The Plaintiff was also warned:
Should the Plaintiff fail to provide this amendment by February 2, 2018, his case will be subject to being dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or for failure to comply with this Court's orders.
(Doc. 16 at 8-9) (emphasis in original).
On January 11, 2018, instead of filing an "amendment" to his Complaint as ordered, the Plaintiff filed an "Amended Complaint," which is now the operativepleading in this case. (Doc. 19). See, Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011) () (quoting Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir.2007)). In the Amended Complaint, the Plaintiff continues to allege that jurisdiction is appropriate pursuant to 28 U.S.C. § 1332.2 However, the Plaintiff still only alleges that he "resides" in the state of Alabama, and does not allege his state citizenship. (Doc. 19 at 1). The Plaintiff has also filed an affidavit in support of his claim that there is diversity in this case. (Doc. 21). Nowhere in that affidavit does he state his state of citizenship or establish were he was domiciled prior to becoming incarcerated. Although he does state that he "has no intention on returning to the Tampa Area . . . where he was convicted" (doc. 21 at 2), that alone does not establish that he was domiciled there prior to his incarceration. Regardless, most of the Plaintiff's claims in his Amended Complaint arise out of alleged violations of federal regulations, issued pursuant to a federal statute, so the Court deems that jurisdiction is actually based on 28 U.S.C. § 1331, and 28 U.S.C. § 1367 (supplemental jurisdiction).
(Doc. 19 at 1-2). In Counts One through Four the Plaintiff alleges that the Defendant violated several federal regulations. In Count five, the Plaintiff alleges that the Defendant violated Nevada Revised Statute 598.0915.
Count Five will be dismissed as there are no allegations in the Amended Complaint which plausibly allege that the Defendant was bound to comply with the requirements of any statute from the state of Nevada.
Counts One through Four allege violations of the following federal regulations: 34 C.F.R. § 682.410(b)(6); 34 C.F.R. § 682.410(b)(5)(ii); 34 C.F.R. § 682.410(b)(6)(ii); and 34 C.F.R. § 682.410(5)(iv)(b). These regulations are enactedpursuant to the Higher Education Act of 1965. 28 U.S.C. § 1001, et seq. The Eleventh Circuit has explained:
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