Boschetti -v- O'Blenis

Filing 32

ORDER by Judge Claudia WilkenGRANTING IN PART ( 27 , 29 )LEAVE TO APPEAL IN FORMA PAUPERIS. (ndr, COURT STAFF) (Filed on 8/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PAUL BOSCHETTI,
Plaintiff,

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No. C 13-2706 CW
ORDER GRANTING IN
PART LEAVE TO
APPEAL IN FORMA
PAUPERIS

v.
DANIEL O’BLENIS,
Defendant.
________________________________/

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Defendant Daniel Everett, named herein as Daniel O’Blenis,
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United States District Court
For the Northern District of California

moves for leave to appeal in forma pauperis (IFP).

For the

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reasons set forth below, this motion is granted in part.
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“[A] party to a district-court action who desires to appeal
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in forma pauperis must file a motion in the district court.”

Fed.

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R. App. P. 24(a)(1).

“An appeal may not be taken in forma

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pauperis if the trial court certifies in writing that it is not
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taken in good faith.”

28 U.S.C. § 1915(a)(3).

“If the district

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court denies the motion, it must state its reasons in writing.”
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Fed. R. App. P. 24(a)(2).
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Defendant seeks to appeal this Court’s August 14, 2013 order
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remanding the case to San Francisco County Superior Court for lack
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of federal subject matter jurisdiction and awarding attorneys’
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fees to Plaintiff Paul Boschetti.

See Docket No. 26, Notice of

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Appeal.

In this circuit, an order remanding a case to state court

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for lack of federal subject matter jurisdiction “is not reviewable
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on appeal or otherwise.”

28 U.S.C. § 1447(d); see also Abada v.

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Charles Schwab & Co., Inc., 300 F.3d 1112, 1116 (9th Cir. 2002)
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(“‘Remand orders based on a defect in removal procedure or lack of
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subject matter jurisdiction are immune from review even if the

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district court’s order is erroneous.’” (citations omitted)).

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Accordingly, Defendant’s appeal of the remand order is frivolous

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and not taken in good faith under 28 U.S.C. § 1915(a)(3).

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Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)

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(construing “not in good faith” to mean frivolous).

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See

However, Defendant’s appeal of the attorneys’ fees award is

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not frivolous.

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subject to appellate review even when the accompanying remand

The Ninth Circuit has held that such an award is

United States District Court
For the Northern District of California

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order is not.

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2003) (“Although we have no power to reverse the remand decision,

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we can nonetheless consider the district court’s award of

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attorneys’ fees.”).

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of the attorneys’ fees award.

Dahl v. Rosenfeld, 316 F.3d 1074, 1079 (9th Cir.

Thus, Defendant may proceed IFP in his appeal

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CONCLUSION
For the reasons set forth above, Defendant’s motion for leave

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to appeal IFP (Docket Nos. 27, 29) is GRANTED in part.

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to Federal Rule of Appellate Procedure 24(a)(4), the Clerk shall

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notify the Ninth Circuit that this Court has denied Defendant’s

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motion to appeal the remand order IFP and certified in writing

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that the appeal (9th Cir. Case No. 13-16666) is not taken in good

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faith.

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attorneys’ fees award.

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IT IS SO ORDERED.

Pursuant

Defendant may, however, proceed IFP on his appeal of the

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Dated: 8/26/2013

CLAUDIA WILKEN
United States District Judge

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