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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 PAUL BOSCHETTI, Plaintiff, 5 6 7 8 No. C 13-2706 CW ORDER GRANTING IN PART LEAVE TO APPEAL IN FORMA PAUPERIS v. DANIEL O’BLENIS, Defendant. ________________________________/ 9 Defendant Daniel Everett, named herein as Daniel O’Blenis, 10 United States District Court For the Northern District of California moves for leave to appeal in forma pauperis (IFP). For the 11 reasons set forth below, this motion is granted in part. 12 “[A] party to a district-court action who desires to appeal 13 in forma pauperis must file a motion in the district court.” Fed. 14 R. App. P. 24(a)(1). “An appeal may not be taken in forma 15 pauperis if the trial court certifies in writing that it is not 16 taken in good faith.” 28 U.S.C. § 1915(a)(3). “If the district 17 court denies the motion, it must state its reasons in writing.” 18 Fed. R. App. P. 24(a)(2). 19 Defendant seeks to appeal this Court’s August 14, 2013 order 20 remanding the case to San Francisco County Superior Court for lack 21 of federal subject matter jurisdiction and awarding attorneys’ 22 fees to Plaintiff Paul Boschetti. See Docket No. 26, Notice of 23 Appeal. In this circuit, an order remanding a case to state court 24 for lack of federal subject matter jurisdiction “is not reviewable 25 on appeal or otherwise.” 28 U.S.C. § 1447(d); see also Abada v. 26 Charles Schwab & Co., Inc., 300 F.3d 1112, 1116 (9th Cir. 2002) 27 (“‘Remand orders based on a defect in removal procedure or lack of 28 1 subject matter jurisdiction are immune from review even if the 2 district court’s order is erroneous.’” (citations omitted)). 3 Accordingly, Defendant’s appeal of the remand order is frivolous 4 and not taken in good faith under 28 U.S.C. § 1915(a)(3). 5 Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) 6 (construing “not in good faith” to mean frivolous). 7 See However, Defendant’s appeal of the attorneys’ fees award is 8 not frivolous. 9 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 10 order is not. 11 2003) (“Although we have no power to reverse the remand decision, 12 we can nonetheless consider the district court’s award of 13 attorneys’ fees.”). 14 of the attorneys’ fees award. Dahl v. Rosenfeld, 316 F.3d 1074, 1079 (9th Cir. Thus, Defendant may proceed IFP in his appeal 15 16 CONCLUSION For the reasons set forth above, Defendant’s motion for leave 17 to appeal IFP (Docket Nos. 27, 29) is GRANTED in part. 18 to Federal Rule of Appellate Procedure 24(a)(4), the Clerk shall 19 notify the Ninth Circuit that this Court has denied Defendant’s 20 motion to appeal the remand order IFP and certified in writing 21 that the appeal (9th Cir. Case No. 13-16666) is not taken in good 22 faith. 23 attorneys’ fees award. 24 IT IS SO ORDERED. Pursuant Defendant may, however, proceed IFP on his appeal of the 25 26 27 Dated: 8/26/2013 CLAUDIA WILKEN United States District Judge 28 2

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