Wilson v. Navient/ Ecmc Student Loan Providers, Case No.: 1:17-CV-02012-VEH

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Writing for the Court: VIRGINIA EMERSON HOPKINS United States District Judge
• Parties: FREDDIE WILSON, Plaintiff, v. NAVIENT/ ECMC STUDENT LOAN PROVIDERS Defendant.
• Docket Number: Case No.: 1:17-CV-02012-VEH
• Decision Date: 13 February 2018

FREDDIE WILSON, Plaintiff,
v.
NAVIENT/ ECMC STUDENT LOAN PROVIDERS Defendant.

Case No.: 1:17-CV-02012-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION

February 13, 2018

MEMORANDUM OPINION

I. INTRODUCTION AND PROCEDURAL HISTORY

This is a civil action which was filed on December 1, 2017, by the Plaintiff, Freddie Wilson, against the Defendant, Navient/ECMC Student Loan Providers ("Navient"). (Doc. 1). In the original Complaint, the Plaintiff alleged that Navient sent him a notice that his student loan account was "in collections and the collections fees was [sic] asses[ed] at $6,281.98 and there was another fee associated with this account in the amount of $1,880.75." (Doc. 1 at 2). The letter also stated that the Plaintiff's account was "in arrears to the tune of four years and . . . is in collections." (Doc. 1-1 at 2). The Plaintiff also alleged that

the defendant[] failed to follow the laws enacted by Congress and properly serve and call the plaintiff as required by law and once it failed

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to follow the law the defendant did not have the right to charge the plaintiff."

(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 "if it is without

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arguable merit either in law or fact .... [A]rguable means capable of being convincingly argued." Id. at 859-60 (citing Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001), and Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991)) (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:

the Plaintiff alleges only that he is a "resident" of the state of Alabama. Furthermore,

[a] prisoner's place of incarceration does not establish citizenship. Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga.), aff'd, 488 F.2d 977 (5th Cir.1974). A prisoner's citizenship is determined by his domicile prior to incarceration. Polakoff, 370 F.Supp. at 693; Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir.1996) ("A forcible change in a person's state of residence does not alter his domicile; hence the domicile of [a] prisoner before he was imprisoned is presumed to remain his domicile while he is in prison."); Lima v. Diaz, No. 95-734-CIV-T-17B, 1995 WL 75922, at *1 (M.D.Fla. Dec.18, 1995).

Jones v. Law Firm of Hill & Ponton, 141 F. Supp. 2d 1349, 1355-56 (M.D. Fla. 2001) (Presnell, J.). Absent an allegation by the Plaintiff that he is a citizen of any state, jurisdiction has not been properly pleaded and this Court cannot determine whether it has jurisdiction. The Plaintiff will be allowed to amend his Complaint to plead his citizenship. Thereafter, the Court will reassess whether it has jurisdiction pursuant to 28 U.S.C. § 1332.

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(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 operative

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pleading in this case. (Doc. 19). See, Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011) ("'an amended complaint supersedes the initial complaint and becomes the operative pleading in the case'") (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...