Pacello v. Pacello

Filing 3

ORDER Denying 2 Motion to Proceed in Forma Pauperis. Signed by Judge Cathy Ann Bencivengo on 9/29/2017. (All non-registered users served via U.S. Mail Service)(mxn)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Raymond Pacello, Jr., Case No.: 17cv1931-CAB-KSC Plaintiff, 12 13 v. 14 ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS Amy Jo Pacello, 15 Defendant. 16 17 On, September 22, 2017, Plaintiff Raymond Pacello (“Plaintiff”) filed a Notice of 18 Removal, wherein he seeks to remove a state court dissolution proceeding (the “state 19 action”). [Doc. No. 1.] Plaintiff also filed a request to proceed in forma pauperis 20 (“IFP”). [Doc. No. 2.] For the following reasons, Plaintiff’s motion is DENIED. 21 Generally, all parties instituting a civil action in this court must pay a filing fee. 22 See 28 U.S.C. § 1914(a); CivLR 4.5(a). But, pursuant to 28 U.S.C. § 1915(a), the court 23 may authorize the commencement, prosecution or defense of any suit without payment of 24 fees if the plaintiff submits an affidavit, including a statement of all his or her assets, 25 showing that he or she is unable to pay filing fees or costs. “An affidavit in support of an 26 IFP application is sufficient where it alleges that the affiant cannot pay the court costs 27 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 28 Cir. 2015). “[A] plaintiff seeking IFP status must allege poverty with some particularity, 1 17cv1931-CAB-KSC 1 definiteness and certainty.” Id. (internal quotation marks omitted). The granting or 2 denial of leave to proceed in forma pauperis in civil cases is within the sound discretion 3 of the district court. Venerable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations 4 omitted). 5 In his IFP application, Plaintiff states that he has a monthly income of $2,256.00 6 per month. [Doc. No. 2 at 2.] He also states that he has $600 in cash. Id. Finally, 7 Plaintiff states that his monthly expenses are $1,970.00. [Doc. No. 2 at 5.] Given that 8 Plaintiff’s monthly income exceeds his monthly expenses by almost $300, the Court is 9 not persuaded Plaintiff lacks the funds to pay the filing fee and “still afford the 10 necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, the Court DENIES 11 Plaintiff’s application to proceed in forma pauperis. Further, the Court cautions Plaintiff 12 that the right to remove a case from state to federal court is vested exclusively in the 13 defendant in a case. 28 U.S.C. §1441(a). Here, Plaintiff is also the Plaintiff/Petitioner in 14 the state court action. Moreover, if Plaintiff is attempting to remove the more recent 15 TRO proceedings in the state court action, proceedings that are ancillary to an action 16 pending in state court cannot be removed to federal court if the underlying claim is being 17 litigated in state court. GE Betz, Inc. v. Zee Co., Inc., 718 F.3d 615, 623 (7th Cir. 2013). 18 Plaintiff shall have until October 11, 2017, to pay the entire filing fee. If the filing 19 fee is not paid by October 11, 2017, the Clerk of the Court shall CLOSE the case without 20 further order from the Court. 21 22 IT IS SO ORDERED. Dated: September 29, 2017 23 24 25 26 27 28 2 17cv1931-CAB-KSC

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