Gross Mortgage Corporation v. Al-Mansur

Filing 23

ORDER REVOKING DEFENDANT'S IN FORMA PAUPERIS STATUS. Signed by Judge Hamilton on 3/25/2013. (pjhlc1, COURT STAFF) (Filed on 3/25/2013) (Additional attachment(s) added on 3/25/2013: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GROSS MORTGAGE CORPORATION,
Plaintiff,

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v.

ORDER REVOKING DEFENDANT’S
IN FORMA PAUPERIS STATUS

SABIR AL-MANSUR,

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For the Northern District of California

United States District Court

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No. C 13-0399 PJH

Defendant.
_______________________________/

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This unlawful detainer action was removed from the Superior Court of California,

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County of Alameda, on January 13, 2013, by pro se defendant Sabir Al-Mansur, and was

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remanded to the Alameda County Superior Court on March 15, 2013. Defendant has filed

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an appeal with the Ninth Circuit, and the case has been referred back to this court for the

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limited purpose of determining whether defendant’s in forma pauperis status should

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continue or whether the appeal is frivolous or taken in bad faith. Al Mansur v. Gross

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Mortgage Corp., No. 13-15511, Doc. No. 2.

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An indigent party who cannot afford the expense of pursuing an appeal may file a

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motion for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); see 28 U.S.C.

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§ 1915(a)(1). Pursuant to Federal Rule of Appellate Procedure 24(a), “a party to a

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district-court action who desires to appeal in forma pauperis must file a motion in the district

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court.” The party must attach an affidavit that (1) shows in detail “the party's inability to pay

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or give security for fees and costs,” (2) “claims an entitlement to redress,” and (3) “states

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the issues that the party intends to present on appeal.” Fed. R. App. P. 24(a)(1).

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However, even if a party provides proof of indigence, “an appeal may not be taken in
forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28

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U.S.C. § 1915(a)(3). An appeal is in “good faith” where it seeks review of any issue that is

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“non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An

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issue is “frivolous” if it has “no arguable basis in fact or law.” See O'Loughlin v. Doe, 920

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F.2d 614, 617 (9th Cir. 1990).

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Here, in his notice of removal, defendant alleged subject matter jurisdiction based on

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his belief that various federal statutes created federal question jurisdiction. The court

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granted defendant’s motion to remand because no federal question was pled on the face of

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the unlawful detainer complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392

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(1987). The court clearly explained that because it lacked subject matter jurisdiction, it had
no choice but to remand the case.

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For the Northern District of California

United States District Court

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As it is clear that this appeal is frivolous and taken in bad faith, defendant’s in forma

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pauperis status is REVOKED. The clerk shall forward this order to the Ninth Circuit in case

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No. 13-15511.

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IT IS SO ORDERED.

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Dated: March 25, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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