MCCANN v. AMERICAN EDUCATION SERVICES/PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
Filing
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MEMORANDUM OPINION & ORDER: Plaintiff's IFP application is GRANTED; Clerk is directed to file Plaintiff's complaint. ORDER that to the extent that Plaintiffs complaint is considered a removal of a state court action, Plaintiff's complaint is REMANDED to the Court where the action was pending. Signed by Judge Noel L. Hillman on 1/8/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CORNEL MCCANN
a natural man, consumer,
Plaintiff,
1:17-cv-00471-NLH-AMD
MEMORANDUM
OPINION & ORDER
v.
AMERICAN EDUCATION
SERVICES/PENNSYLVANIA HIGHER
EDUCATION ASSISTANCE AGENCY,
Defendants.
APPEARANCES:
CORNEL MCCANN
112 ELM CT
LINDENWOLD, NJ 08021
Appearing pro se
HILLMAN, District Judge
WHEREAS, Plaintiff, Cornell McCann, appearing pro se, has
filed a “notice of removal/motion to transfer” against
Defendants American Education Services and Pennsylvania Higher
Education Assistance Agency; and
WHEREAS, it appears from Plaintiff’s filing that Defendants
have filed a suit in state court against him to collect a debt,
and Plaintiff claims that Defendants’ actions violate the Fair
Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 –
1692p; and
WHEREAS, Plaintiff has filed an application to proceed
without prepayment of fees (“in forma pauperis” or “IFP”
application), and pursuant to 28 U.S.C. § 1915(a)(1), a court
may allow a litigant to proceed without prepayment of fees if he
submits a proper IFP application; and
WHEREAS, although § 1915 refers to “prisoners,” federal
courts apply § 1915 to non-prisoner IFP applications, Hickson v.
Mauro, 2011 WL 6001088, *1 (D.N.J.2011) (citing Lister v. Dept.
of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section
1915(a) applies to all persons applying for IFP status, and not
just to prisoners.”) (other citations omitted); and
WHEREAS, the screening provisions of the IFP statute
require a federal court to dismiss an action sua sponte if,
among other things, the action is frivolous or malicious, or if
it fails to comply with the proper pleading standards, see 28
U.S.C. § 1915(e)(2)(B)(i)-(iii); Ball v. Famiglio, 726 F.3d 448,
452 (3d Cir. 2013); Martin v. U.S. Department of Homeland
Security, 2017 WL 3783702, at *1 (D.N.J. August 30, 2017)
(“Federal law requires this Court to screen Plaintiff's
Complaint for sua sponte dismissal prior to service, and to
dismiss any claim if that claim fails to state a claim upon
which relief may be granted under Fed. R. Civ. P. 12(b)(6)
and/or to dismiss any defendant who is immune from suit.”); and
WHEREAS, pro se complaints must be construed liberally, and
all reasonable latitude must be afforded the pro se litigant,
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Estelle v. Gamble, 429 U.S. 97, 107 (1976), but pro se litigants
“must still plead the essential elements of [their] claim and
[are] not excused from conforming to the standard rules of civil
procedure,” McNeil v. United States, 508 U.S. 106, 113 (1993)
(“[W]e have never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse mistakes
by those who proceed without counsel.”); Sykes v. Blockbuster
Video, 205 F. App’x 961, 963 (3d Cir. 2006) (finding that pro se
plaintiffs are expected to comply with the Federal Rules of
Civil Procedure); and
WHEREAS, the Court finds that Plaintiff’s “notice of
removal” is deficient in two fundamental ways:
1.
Plaintiff, who appears to be the defendant in an
unidentified state court action, has failed to comply with 28
U.S.C. § 1446 by not providing a copy of all process, pleadings,
and orders served upon such him in that action; and
2.
Removal of a state court action may be based on a
federal question under 28 U.S.C. § 1331 or diversity of
citizenship of the parties under 28 U.S.C. § 1332.
U.S.C. § 1441.
See 28
For removal based on federal question
jurisdiction, plaintiff cannot remove a state court action
against him on the basis of a federal law defense, such as a
debt collector’s violation of the FDCPA.
See Lazorko v.
Pennsylvania Hosp., 237 F.3d 242, 248 (3d Cir. 2000) (citing
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Franchise Tax Bd. of Cal. v. Construction Laborers Vacation
Trust for S. Cal., 463 U.S. 1 (1983); Louisville & Nashville
R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)) (“If [] the
defendant merely has a federal law defense, he may not remove
the case, although he may assert the federal defense in state
court.”).
For removal based on diversity of citizenship,
Plaintiff cannot remove a New Jersey state court action against
him when he is a citizen of New Jersey.
See 28 U.S.C. §
1441(b)(2) (“A civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of this title
may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in
which such action is brought.”);
THEREFORE,
IT IS on this
8th
day of
January
, 2018
ORDERED that Plaintiff’s IFP application (Docket No. 1-1)
be, and the same hereby is, GRANTED, and the Clerk is directed
to file Plaintiff's complaint; and it is further
ORDERED that to the extent that Plaintiff’s complaint is
considered a removal of a state court action, Plaintiff’s
complaint be, and the same hereby is, REMANDED to the Court
where the action was pending.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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