Court Issues Epic Smackdown to Professional TCPA Plaintiff Seeking to Sue PACER In Forma Pauperis

If the TCPA has a “rock bottom,” we may have just hit it. As recently explained by Judge Cynthia Bashant of the Southern District of California:

Roy Tuck and his wife Deborah Tuck, together with their son Richard Caruso and mother-in-law Clarice Tuck, appear to have developed a cottage industry suing their creditors for violations of the TCPA, the FDCPA and the FCRA. In each case, the parties request to proceed [in forma pauperis], listing liabilities that far exceed assets. Curiously, however, despite the fact that they have received settlements from approximately a dozen different defendants, their assets and cash in their bank accounts remained unchanged.

Tuck v. Pub. Access to Court Elec. Records Serv. Ctr. United States Courts, Case No. 17-cv-1720-BAS-KSC, 2017 U.S. Dist. LEXIS 148604 (S.D. Cal. Sept. 12, 2017).

In his latest filing, Roy Tuck swings for the fences. He sues PACER—that’s right, the official U.S. District Court Public Access to Court Electronic Records System—contending that although he was a user of the PACER service to access U.S. Court documents—likely related to his previous TCPA cases—he is not liable for the resulting debt he incurred when he used the service to access court records. See paragraph 4 of the complaint. In his suit, Mr. Tuck asks to recover $26,000 related to 18 debt collection calls allegedly placed by PACER and other defendants to his “emergency phone number” in violation of the TCPA. See Compl. par. 25-28.

Bold though it may be to walk into federal court seeking to sue its official document access provider, Mr. Tuck was even bolder. He asked the Court to let him do it for free. Specifically, on August 24, 2017, Mr. Tuck filed an application to proceed without prepaying costs. As noted above, Judge Bashant sent him packing. The Court observed: “[C]are must be employed to assure that federal funds are not squandered to underwrite, at public expense . . . the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar.” It then found, “by this court’s reckoning, Mr. Tuck and his wife have received settlements from at least fifteen defendants, some to settle multiple cases. If the settlements exceed the $400 filing fee, then it may be that the Tucks can afford to ‘pull their own oar’ and it would not be appropriate to waive the filing fee.”

The Court then dismissed the case, without prejudice. Mr. Tuck will be welcomed back to court—free of charge—as soon as he complies with one delicious condition: “If Mr. Tuck chooses to refile the motion to proceed [in forma pauperis], he should specifically list the settlement amounts from each of the following defendants and explain why these settlement amounts cannot be used to pay the filing fee in this case:

  • American Capitol Enterprises (Case No. 15-cv-2042);
  • Calvary Portfolio Services (Case No. 16-cv-918);
  • Capital One Bank (Case No. 16-cv-293);
  • DirecTV (Case No. 16-cv-160);
  • Encore Capital Group (Case No. 16-cv-293);
  • Equifax (Case Nos. 16-cv-684, 16-cv-877, 16-cv-917);
  • Experian Information Solutions Inc. (Case Nos. [*7] 16-cv-293, 16-cv-684, 16-cv-877, 16-cv-917);
  • HSBC Bank (Case Nos. 16-cv-293, 16-cv-684);
  • Merrick Bank Corp. (Case Nos. 16-cv-877, 16-cv-917);
  • Midland Credit Management, Inc. (Case Nos. 16-cv-293; 15-cv-2036);
  • Midland Funding LLC (Case No. 16-cv-293);
  • Portfolio Recovery Associates (Case No. 16-cv-684);
  • Receivables Performance Management (Case No. 15-cv-1377);
  • Trans Union LLC (Case Nos. 16-cv-684, 16-cv-877, 16-cv-917);
  • Verizon Wireless (Case No. 16-cv-293); and
  • Any other court settlement received by him or his wife.”

 

 

Eric Troutman

Eric Troutman

Eric is one of the country’s prominent Telephone Consumer Protection Act (TCPA) defense attorneys, having served as lead defense counsel on over 30 nationwide TCPA class actions and having handled hundreds of individual TCPA cases. He also “wrote the book” on TCPA defense, having co-authored the nation’s first comprehensive practice guide on the subject. In addition, he has helped spearhead the banking industry’s push for TCPA clarity before the Federal Communications Commission and has assisted on numerous appeals addressing hot-button TCPA issues.

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