Dr. Mickey Socrates Ferdynand v. Disney Enterprises
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court reviewed a pro se civil complaint filed without the required $400 filing fee or a motion to proceed in forma pauperis. The court dismissed the action without prejudice and granted the plaintiff 30 days to pay the fee or file a proper IFP motion to reopen the case.
| What the court decided | The model |
|---|---|
Dismissal of the civil action without prejudice for failure to pay filing fees or request IFP status“DISMISSES this action sua sponte without prejudice for failing to pay the $400 civil filing and administrative fee or to submit a motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a)” | agree with court The court correctly applied 28 U.S.C. § 1914(a), which mandates payment of filing fees, and 28 U.S.C. § 1915(a), which allows an exception only if the plaintiff is granted leave to proceed in forma pauperis. The order recites that the plaintiff neither paid the fee nor submitted the required affidavit/motion. Dismissing without prejudice is the standard procedural remedy to allow the plaintiff to cure the defect, consistent with Ninth Circuit precedent cited in the order. |
Granting of 30 days to reopen the case by paying fees or filing IFP motion“GRANTS Plaintiff thirty (30) days from the date of this Order to re-open his case by: (a) Prepaying the entire $400 civil filing and administrative fee required by 28 U.S.C. § 1914(a) in full; or (b) Completing and filing a Motion to Proceed IFP with an affidavit that includes a statement of all Plaintiff’s assets as required by 28 U.S.C. § 1915(a)(1) and S.D. Cal. CivLR 3.2(b).” | agree with court Providing a deadline to cure a procedural deficiency (failure to pay fees) before final dismissal is a common and appropriate exercise of the court's inherent authority to manage its docket and ensure compliance with statutory prerequisites. It aligns with the 'without prejudice' nature of the dismissal. |
The order itself: sound — The order is procedurally correct. It identifies the statutory requirement for filing fees, notes the plaintiff's failure to meet it or request an exception, cites binding Ninth Circuit authority supporting the dismissal for such failure, and provides a clear path to cure the defect. The reasoning is direct and answers the procedural deficiency with the correct authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DR. MICKEY SOCRATES Case No.: 3:21-cv-50-JLS (JLB) FERDYNAND, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO PAY vs. FILING FEES REQUIRED BY 14 28 U.S.C. § 1914(a) DISNEY ENTERPRISES and WALT 15 DISNEY COMPANY, 16 Defendants. (ECF No. 1) 17 18 19 Plaintiff Dr. Mickey Socrates Ferdynand, proceeding pro se, filed this action against 20 Defendants Disney Enterprises and The Walt Disney Company on January 8, 2021. See 21 ECF No. 1. Plaintiff is alleging trademark infringement, patent infringement, and 22 defamation. 23 I. Failure to Pay Filing Fee or Request IFP Status 24 All parties instituting any civil action, suit, or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 /// 27 /// 28 /// 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) 5 requires all persons seeking to proceed without full prepayment of fees to submit an 6 affidavit that includes a statement of all assets possessed and which demonstrates an 7 inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 8 Plaintiff has not prepaid the $400 in filing and administrative fees required to 9 commence this civil action, nor has he submitted a properly supported Motion to Proceed 10 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 11 § 1914(a); Andrews, 493 F.3d at 1051. 12 II. Conclusion and Order 13 Accordingly, the Court: 14 (1) DISMISSES this action sua sponte without prejudice for failing to pay the 15 $400 civil filing and administrative fee or to submit a motion to proceed IFP pursuant to 16 28 U.S.C. §§ 1914(a) and 1915(a); and 17 (2) GRANTS Plaintiff thirty (30) days from the date of this Order to re-open his 18 case by: 19 (a) Prepaying the entire $400 civil filing and administrative fee required by 20 28 U.S.C. § 1914(a) in full; or 21 (b) Completing and filing a Motion to Proceed IFP with an affidavit that 22 includes a statement of all Plaintiff’s assets as required by 28 U.S.C. § 1915(a)(1) 23 and S.D. Cal. CivLR 3.2(b). 24 /// 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 If Plaintiff fails to comply with these instructions within 30 days, this action will 2 ||remain dismissed without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s 3 || fee requirements and without further Order of the Court. 4 IT IS SO ORDERED. 5 ||Dated: January 21, 2021 . tt f te 6 on. Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3