Fannie Mae v. Lopez

Filing 3

ORDER Denying Motion to Proceed in Forma Pauperis 2 and Directing Defendant Leonor Lopez to Pay the Filing Fee, signed by Judge Oliver W. Wanger on 5/19/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FANNIE MAE

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Plaintiff,
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v.
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LEONOR LOPEZ,
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Defendant.
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_____________________________________ )

Case No.: 1:11-cv-00757 OWW JLT
ORDER DENYING MOTION TO PROCEED
IN FORMA PAUPERIS AND DIRECTING
DEFENDANT LEONOR LOPEZ TO PAY
THE FILING FEE
(Doc. 2)

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Before the Court is the application to proceed in forma pauperis filed by Defendant

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Leonor Lopez. (Doc. 2). As a general rule, all parties instituting any civil action, suit or

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proceeding in a United States District Court must pay a filing fee. 28 USC § 1914(a). However,

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the Court may authorize the commencement of an action “without prepayment of fees and costs

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of security therefor, by a person who submits an affidavit that . . . the person is unable to pay

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such fees or give security therefor.” 28 USC § 1915(a)(1). Therefore, an action may proceed

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despite a failure to prepay the filing fee only if leave to proceed in forma pauperis (“IFP”) is

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granted by the Court. See Rodriguez v. Cook, 169 F.3d 1178, 1177 (9th Cir. 1999).

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The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of

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privilege and not a right; denial of an informa pauperis status does not violate the applicant’s

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right to due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984), citing Weller v.

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Dickson, 314 F.2d 598, 600 (9th Cir. 1963). In addition, the Court has broad discretion to grant
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or deny a motion to proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller,

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314 F.2d at 600-01. In making a determination, the court “must be careful to avoid construing

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the statute so narrowly that a litigant is presented with a Hobson’s choice between eschewing a

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potentially meritorious claim or foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586

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F.Supp. 848, 850 (D.R.I. 1984).

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Here, Lopez’ application does not demonstrate that she is unable to pay the court costs

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due to poverty. The affidavit indicates she is currently employed and her take home pay,

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presumably per month1, is $4,400. (Doc. 2 at 1). In addition, she has a vehicle valued at $7,000

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and a house valued at $92,000. Id. at 2. Therefore, based upon her income and assets, Ms.

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Lopez has failed to make an adequate showing of indigence and has not demonstrated that she

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has insufficient funds to pay the Court’s filing fee.

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Accordingly, IT IS HEREBY ORDERED:

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1.

The motion to proceed in forma pauperis is DENIED; and

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2.

Leonor Lopez IS DIRECTED to pay the filing fee within 30 days of service of
this order.IT IS SO ORDERED.

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Dated:
May 19, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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Defendant failed to state how often she is paid. (Doc. 2 at 1) However, assuming most favorably to Lopez,
that she is paid one time per month, the Court finds that her salary is sufficient to allow her to pay the filing fee.

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