Opinion
Case No. 5:15-cv-02001-PSG
05-05-2015
MARTHA R. MUZI, Plaintiff, v. LESLIE MUNIZ, et al., Defendants.
REPORT AND RECOMMENDATION REMANDING SUA SPONTE AND DENYING MOTION TO PROCEED IN FORMA PAUPERIS
Plaintiff Martha R. Muniz initiated this unlawful detainer action in state court. Defendant Leslie Muniz subsequently removed the case to federal court and at the same time, filed a motion to proceed in forma pauperis. The parties have not consented to magistrate jurisdiction, so this matter will be reassigned to a district court judge. The court recommends the case be remanded for lack of subject matter jurisdiction and Defendant's motion to proceed in forma pauperis denied as frivolous.
See Docket No. 1-1.
See Docket No. 1.
See Docket No. 3.
See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).
Cf. Louden, LLC v. Pajarillo, Case No. 12-cv-2638-EMC, 2012 WL 3155151, at *1 (N.D. Cal. Aug. 2, 2012); 3925 Alameda Prop. LLC v. Brainerd, Case No. 12-cv-4924-EMC, 2012 WL 5199170, at *2 (N.D. Cal. Oct. 22, 2012); Compass Bank v. Goble, Case No. 12-cv-1885-WQH, 2012 WL 3229155, at *2 (S.D. Cal. Aug. 3, 2012); Bank of Am., Nat. Ass'n v. Soliven, Case No. 10-cv-1844-IEG, 2010 WL 3636260, at *2 (S.D. Cal. Sept. 14, 2010).
Cf. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hoke v. Arpaio, 92 F.3d 1192, 1192 (9th Cir. 1996).
When presented with an application to proceed in forma pauperis, a court must first determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). Section 1915(a) does not require an applicant to demonstrate absolute destitution. An IFP application will be denied and the action dismissed, however, if the party seeking IFP status has filed a pleading or petition that is legally frivolous. A submission is "frivolous" for IFP purposes and therefore subject to summary dismissal under § 1915(e)(2)(B)(i) "where it lacks an arguable basis either in law or in fact."
See Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir.1984).
See McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854 (10th Cir.1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339 (1948)).
Neitzke, 490 U.S. at 325; Hoke, 92 F.3d at 1192.
In their notice of removal, Defendants assert that there is federal question jurisdiction over the case, but their position lacks merit. Federal question jurisdiction depends on the contents of the plaintiff's well-pleaded complaint and may not be predicated on the defendant's counterclaims or defenses. Here, Muzi's well-pleaded complaint asserts a claim based on state law only—that is, unlawful detainer.
See Docket No. 1 at 2, 3.
See Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002); ARCO Envtl. Remediation, L.L .C. v. Department of Health & Envtl. Quality of St. of Mont., 213 F.3d 14 1108, 1113 (9th Cir. 2000).
See Docket No. 1-1.
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As a result, the court recommends the case be remanded to state court for lack of subject matter jurisdiction and the IFP motions denied as frivolous. SO ORDERED. Dated: May 5, 2015
/s/_________
PAUL S. GREWAL
United States Magistrate Judge