Plaintiff filed a patent infringement action and also filed an application to proceed in pro per and In Forma Pauperis. The defendants file a motion to dismiss the action based on false statements in the application.

As the district court explained, "[t]he Application requires the applicant to detail all sources of income he has received within the last twelve months and to declare under penalty of perjury that all of the information provided is true. The Declaration further notes that the applicant understands that a false statement may result in a dismissal of the claims."

The defendants argued "that Plaintiff failed to disclose material information about his income in his Application. Moreover, Defendants claim that Plaintiff acted in bad faith and that the Court should dismiss the instant matter with prejudice because of Plaintiff's actions." In response, the plaintiff alleged "that Defendants filed the instant Motion in an effort to avoid liability for infringing his patent" and "that he was not aware he had to include all of his income from the last twelve months in the Application, including his unemployment compensation and his previous employment income." After reciting the relevant legal standard and going through a factual analysis, the district court concluded that plaintiff admitted his application was false. "By Plaintiff's own admissions, the Application he submitted was false. (DE 93). In his Affidavit in Response to the instant Motion, Plaintiff states that he worked in November 2012 as a temporary security officer at Allegiance Security, but did not list the income he received, and he received $11.00 an hour while working at The 2100 Oasis Condominium in May 2013. (DE 93 at 2). Furthermore, Plaintiff states that he received $1,100 per month in unemployment compensation after the temporary work at Allegiance Security ended and, again, starting in August 2013.3 Id. Yet, Plaintiff listed none of these amounts in his Application to the Court."

Because of these omissions, the district court concluded that dismissal was "required pursuant to section 1915(e)(2)(A) of the in forma pauperis statute. 28 U.S.C. § 1915(e)(2)(A)."

The question then arose as to whether the dismissal should be with or without prejudice. The district court noted that the plaintiff had run into this issues in a prior case (a wrongful termination case) and that he could not therefore claim ignorance. In addition, "although, Plaintiff included a detailed list of his debts and liabilities in his Application, he purposely left out several sources of income he received within the last twelve months, namely his wages from his employment and his unemployment compensation."

Finally, the district court concluded that dismissal with prejudice was appropriate given the plaintiff's previous dealing with in forma pauperis Applications and that "the evidence demonstrates that Plaintiff knew including the other sources of include would lessen his chances of proceeding without paying a fee and deliberately failed to list them in the Application in the instant matter. As a result, I find that dismissal with prejudice is appropriate."

Dixon v. Nekaveh, Case No. 13-80949-CIV-Middlebrooks (S.D. Fla. April 2014)