US Bank National Association v. Merritt et al

Filing 8

ORDER denying application to proceed IFP and denying TRO. Signed by Judge Illston on 6/15/07. (SI, COURT STAFF) (Filed on 6/15/2007)

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US Bank National Association v. Merritt et al Doc. 8 Case 3:07-cv-03175-SI Document 8 Filed 06/15/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. NORLIN MERRITT, et al., Defendants. / U.S. BANK NATIONAL, et al., Plaintiffs, No. C 07-3175 SI ORDER DENYING DEFENDANTS' MOTION FOR A TEMPORARY RESTRAINING ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA On June 15, 2007, pro se defendants Norlin and Maria Merritt filed in this Court a "Notice of Removal," a document titled "TRO," and various other documents. The underlying action appears to be a state-court unlawful detainer action, pending in Marin County Superior Court since at least May 4, 2007. The TRO document, which is unsworn, states that defendants are conspiring to steal defendants' property, knowing they have no standing because the note they are acting on was sold or is counterfeit. Defendants state that they have contacted the Marin County District Attorney's Office and the FBI regarding alleged criminal acts by plaintiffs and others, and that defendants seek a TRO, apparently to stay the state court proceedings "pending the outcome of the criminal investigation." Defendants' papers do not present any facts which would support its issuance, and accordingly the Court DENIES the motion for a temporary restraining order. The Court further has serious questions whether there is any basis for removal of what is apparently a state-court unlawful detainer action to federal court and whether, in any event, it is untimely. The Notice of Removal states that defendants are "respectfully requesting moving from Superior Court Marin County to Federal Court due to Superior Court moving forward without proper notice to me of scheduled hearings and sealing the file as confidential and stopping me access." The Case 3:07-cv-03175-SI Document 8 Filed 06/15/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 papers attached include a statement that on May 8, 2007 defendants were hand-served a summons and "unlawful detainer/eviction" papers. The papers also include a mailed notice, dated May 4, 2007, concerning the unlawful detainer papers. Thus defendants were apparently on notice of the pendency of the Marin County action for over 30 days prior to filing this action, making the removal untimely under 28 U.S.C. 1446. Defendants also seek to proceed in forma pauperis, but their Application to Proceed In Forma Pauperis states that defendant Norlin Merrit earns a monthly salary of $10,000 gross and $4,000 net and that defendants have a net bank account balance of $2000. They do not appear to be unable to pay the Court's filing fee ($350). The application is therefore DENIED. The Court advises defendants that if they wish to try to proceed with this action in this Court, they must serve a copy of all papers on plaintiffs, and must also file a copy of the Notice of Removal in state court where the action is pending. See generally 28 U.S.C. 1446. IT IS SO ORDERED. Dated: June 15, 2007 SUSAN ILLSTON United States District Judge 2

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