Kenner v. James B. Nutter and Company
2:19-cv-11669
E.D. La.Aug 27, 2019Background
- Pro se plaintiff Eric Javon Kenner filed an FDCPA suit against James B. Nutter & Company and several individuals; complaint is vague and lists parties with minimal factual allegations.
- Court granted Kenner in forma pauperis status but withheld issuance of summons pending review under 28 U.S.C. § 1915.
- Court ordered Kenner to show cause why the case should not be dismissed under § 1915(e)(2)(B) for being frivolous or failing to state a claim; Kenner did not respond.
- Complaint alleges defendants failed to use their “full legal name” and references various FDCPA provisions (15 U.S.C. §§ 1692a, b, c, g) and the REAL ID Act, but provides no clear factual basis tying those provisions to actionable conduct.
- Plaintiff seeks clear title and $500,000 in damages; complaint fails to identify the property or facts supporting fraud or FDCPA violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint states an FDCPA claim | Kenner alleges defendants (debt collectors/attorneys) failed to identify themselves/use full legal names and thus violated FDCPA notice/identification rules | Defendants (implicitly) challenged nothing filed; Court evaluates sufficiency sua sponte under § 1915 | Complaint is too vague to state a plausible FDCPA claim; dismissal recommended |
| Whether fraud is adequately pleaded under Rule 9(b) | Kenner alleges fraud by JBN and attorneys (general assertions) | No specific allegations identified; Rule 9(b) requires particularity | Fraud claim fails for lack of particularized factual allegations; not pleaded with requisite specificity |
| Whether in forma pauperis status prevents summary dismissal | Kenner relies on granted IFP status to proceed | Court notes IFP is a privilege, not a right, and may be revoked where claims lack merit on their face | IFP status retained for review but suit dismissed without prejudice for failure to state a claim |
| Whether dismissal should be with or without prejudice | Kenner requests relief but provides no clarifying facts when ordered to show cause | No responsive clarification submitted | Court recommends dismissal without prejudice (allowing potential refile if plaintiff can plead facts) |
Key Cases Cited
- Neitzke v. Williams, 490 U.S. 319 (complaint is frivolous where it lacks an arguable basis in law or fact)
- Samford v. Dretke, 562 F.3d 674 (complaint lacks an arguable legal basis when based on indisputably meritless theory)
- Harris v. Hegmann, 198 F.3d 153 (standards for meritless claims and frivolousness)
- In re Katrina Canal Breaches Litig., 495 F.3d 191 (12(b)(6) standard: accept well-pleaded facts and view in plaintiff's favor)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for pleadings)
- United States v. Bollinger Shipyards, Inc., 775 F.3d 255 (Rule 9(b) particularity requirements)
- U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180 (purpose of Rule 9(b): fair notice and to prevent baseless claims)
- Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (failure to object to a magistrate judge's report bars de novo review and appellate review of unobjected findings)