LONG AND FOSTER REAL ESTATE v. SMITH

Filing 3

MEMORANDUM, OPINION, ORDER Defendant's IFP application is Granted. Directing Clerk to file Defendant's Notice of Removal. ORDERED that Defendants Notice of Removal shall be, and hereby is, DISMISSED WITHOUT PREJUDICE. Directing Clerk to mark this case as closed. Ordered, Defendant may file an amended complaint within 45 days of this Memorandum, Opinion and Order.. So Ordered by Judge Noel L. Hillman on 9/13/17. (jbk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LONG & FOSTER REAL ESTATE,

Civil No. 17-6768 (NLH/KMW)

Plaintiff,
MEMORANDUM OPINION
AND ORDER

v.
ED SMITH,
Defendant.

APPEARANCES:
Michael S. Greenblatt
Greenblatt & Lieberman, LLC
102 Browning Lane
Building B
Cherry Hill, NJ 08003
On behalf of Plaintiff
Ed Smith
30 Washington Avenue
Edgewater Park, NJ 08010
Pro Se Defendant
HILLMAN, District Judge
This matter having come before the Court by way of Defendant’s
application to proceed in forma pauperis (“IFP application”) [12] in this action submitted on September 5, 2017 as an exhibit to
Defendant’s Notice of Removal [1] submitted to the Court on the
same date; and
The

Court

recognizing

that

when

a

non-prisoner

seeks

permission to file a Notice of Removal in forma pauperis under 28

U.S.C. § 1915, 1 the Prison Litigation Reform Act (“PLRA”) requires
the person 2 to submit an application that includes a statement of
all assets and that the person is unable to pay such fees or give
security, see 28 U.S.C. § 1915(a); and
The Court recognizing that the decision to grant or deny an
IFP application is based solely on the economic eligibility of the
petitioner, see Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976);

1

While individuals typically seek permission to file a
complaint, as opposed to a notice of removal, in forma pauperis
under 28 U.S.C. § 1915, the statute permits federal courts to
“authorize the commencement, prosecution or defense of any
suit . . . without prepayment of fees . . . by a person who submits
an affidavit.” 28 U.S.C. § 1915(a)(1) (emphasis added); see, e.g.,
Bey v. Pennsylvania, 345 F. App’x 731, 732 (3d Cir. 2009)
(affirming the district court’s grant of defendant’s IFP
application and dismissal of defendant’s notice of removal for
lack of subject matter jurisdiction).
2

Although Section 1915 refers to “prisoners,” federal courts
apply Section 1915 to non-prisoner IFP applications as well. See,
e.g., Hickson v. Mauro, No. 11-6304, 2011 WL 6001088, at *1 (D.N.J.
Nov. 30, 2011); accord Douris v. Middletown Township, 293 F. App’x
130, 132 n.1 (3d Cir. 2008) (“The reference to prisoners in §
1915(a)(1) appears to be a mistake. In forma pauperis status is
afforded to all indigent persons, not just prisoners.”); Lister v.
Dep’t 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.”); Martinez v. Kristi Kleaners, Inc., 364 F.3d
1305, 1306 n.1 (11th Cir. 2004); Haynes v. Scott, 116 F.3d 137,
140 (5th Cir. 1997); Floyd v. U.S. Postal Serv., 105 F.3d 274, 275
(6th Cir. 1997); El Ameen Bey v. Stumpf, No. 11-5684, 2011 WL
4962326, at *11 n.7 (D.N.J. Oct. 17, 2011) (“Although Section
1915(a) refers to a ‘statement of all assets such prisoner
possesses,’ this section has been applied by courts in their review
of applications of non-prisoners as well.”).
2

and
The Court having reviewed Defendant’s IFP application, and
Defendant having signed the application declaring under penalty of
perjury that he is unable to pay the costs of these proceedings;
and
Accordingly, based on this information, the Court hereby
grants Defendant’s application to proceed in forma pauperis in
this case and directs the Clerk to file the Notice of Removal in
this action; and
The Court noting that under the PLRA the Court, prior to
docketing or as soon as practicable after docketing, must also
review the Notice of Removal in a civil action in which a defendant
is proceeding in forma pauperis.

See 28 U.S.C. § 1915(e)(2)(B).

The PLRA requires the Court to sua sponte dismiss any claim if the
Court determines that it is frivolous, malicious, fails to state
a claim on which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief.

Id.; and

The Court further noting that a “document filed pro se is ‘to
be liberally construed,’ . . . and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers,’” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citations omitted); see also Haines v. Kerner,

3

404 U.S. 519, 520 (1972); and
The

Court

independent
jurisdiction

recognizing

obligation
sua

to

sponte

that

federal

address

and

may

courts

issues

do

so

at

of

also

have

subject

any

stage

an

matter
of

the

litigation, see Adamczewski v. Emerson Elec. Co., No. 10-4862,
2011 WL 1045162, at *1 (D.N.J. Mar. 22, 2011) (citing Meritcare
Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir.
1999),

overruled

on

other

grounds

by

Exxon

Mobil

Corp.

v.

Allapattah Svcs., Inc., 545 U.S. 546 (2005)); see also Zambelli
Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010)
(“Federal courts are courts of limited jurisdiction, and when there
is a question as to our authority to hear a dispute, ‘it is
incumbent upon the courts to resolve such doubts, one way or the
other, before proceeding to a disposition on the merits.’” (citing
Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass'n, 554 F.2d 1254,
1256 (3d Cir. 1977))); and
The Court noting that “[t]he removal statute, 28 U.S.C. §
1441,

generally

keys

removal

jurisdiction

to

original

jurisdiction” PAAC v. Rizzo, 502 F.2d 306, 313 (3d Cir. 1974); and
The Court noting that “[f]ederal courts are courts of limited
jurisdiction”

which

“possess

Constitution and statute.”

only

that

power

authorized

by

Kokkonen v. Guardian Life Ins. Co. of

4

Am., 511 U.S. 375, 377 (1994); and
The Court noting that “[o]ne category of cases over which the
district courts have original jurisdiction are ‘federal question’
cases; that is, those cases ‘arising under the Constitution, laws,
or treaties of the United States.’” Metro. Life Ins. Co. v. Taylor,
481 U.S. 58 (1987) (quoting 28 U.S.C. § 1331); and
The Court noting that where “removal is predicated upon the
assertion of a federal question, . . . the federal question must
appear as an essential element of the plaintiff’s complaint in
state court,” Rizzo, 502 F.2d at 313; and
The Court noting that “[i]f the federal question arises only
as a defense, or in anticipation of a defense, removal jurisdiction
will not exist,” id.; and
Defendant being served with a complaint in the Superior Court
of New Jersey, Special Civil Part, Burlington County, evicting him
from Plaintiff’s premises; and
Defendant

asserting

in

his

Notice

of

Removal

that

the

Complaint “fail[ed] to allege compliance with the Civil Rights Act
of 1968”; and
Defendant

further

alleging

there

existed

“multiple

habitability issues” with the premises; and
The

Court

observing

that

Defendant’s

5

Notice

of

Removal,

construed liberally, appears to attempt to assert only a federal
defense; and
The Court further noting that, in any event, none of the
factual averments in Defendant’s Notice of Removal support a
defense under the Civil Rights Act of 1968 but rather relate to a
potential state law defense; and
The Court finding that Defendant has not properly asserted
a basis for this Court to exercise jurisdiction over this claim;
and
The Court finding that, even construed liberally in light of
his pro se status, Defendant’s Notice of Removal does not allege
facts

sufficient

jurisdictional

to

basis

demonstrate
to

consider

that
the

this
action

Court

has

regarding

a
his

eviction, and his Notice of Removal must be dismissed without
prejudice at this time.
Accordingly,
IT IS on this

13th

day of

September

, 2017, hereby

ORDERED that Defendant’s IFP Application [Doc. No. 1-5] shall
be, and hereby is, GRANTED and the Clerk is directed to file
Defendant’s Notice of Removal [1]; and it is further
ORDERED that Defendant’s Notice of Removal shall be, and
hereby is, DISMISSED WITHOUT PREJUDICE; and it is further

6

ORDERED that the Clerk is directed to mark his matter as
CLOSED; and it is further
ORDERED that Defendant is granted leave to file an amended
Notice of Removal in this action within forty-five (45) days of
the date of this Memorandum Opinion and Order which sets forth
sufficient facts demonstrating that the exercise of jurisdiction
by this Court is proper.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

7