Nicholson v. Black et al

Filing 6

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez; IT IS ORDERED that Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs 3 filed November 14, 2016, is GRANTED. IT IS ALSO ORDERED that Plaintif f's Complaint for a Civil Case Alleging Breach of Contract (28 U.S.C. § 1332; Diversity of Citizenship), Doc. 1, filed November 14, 2016, is DISMISSED without prejudice. Plaintiff may file an amended complaint within 21 days of entry of this Order (mjr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JARED MORRIS NICHOLSON,
Plaintiff,
v.

No. 16cv1244 MV/SCY

KENT BLACK,
JEREMY R. JONES,
BRIAN PARRISH, and
SOMMER, UDALL, SUTIN, HARDWICK and HYATT, PA,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs, Doc. 3, filed November 14, 2016 (“Application”),
and on his Complaint for a Civil Case Alleging Breach of Contract (28 U.S.C. § 1332; Diversity of
Citizenship), Doc. 1, filed November 14, 2016 (“Complaint”). For the reasons stated below, the
Court will GRANT Plaintiff’s Application and DISMISS Plaintiff’s Complaint without
prejudice. Plaintiff shall have 21 days from entry of this Order to file an amended complaint.
Failure to timely file an amended complaint may result in dismissal of this case without prejudice.
Application to Proceed in forma pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the
Court may authorize the commencement of any suit without prepayment of fees by a person who
submits an affidavit that includes a statement of all assets the person possesses and that the person
is unable to pay such fees.
When a district court receives an application for leave to proceed in forma pauperis,
it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter,

if the court finds that the allegations of poverty are untrue or that the action is
frivolous or malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58,
60 (10th Cir. 1962). “[A]n application to proceed in forma pauperis should be evaluated in light
of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir.
2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.1988)). “The statute [allowing a
litigant to proceed in forma pauperis ] was intended for the benefit of those too poor to pay or give
security for costs....” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344 (1948).
While a litigant need not be “absolutely destitute,” “an affidavit is sufficient which states that one
cannot because of his poverty pay or give security for the costs and still be able to provide himself
and dependents with the necessities of life.” Id. at 339.
The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit declaring that he is unable to pay the costs of these
proceedings and that the following information is true: (i) his average monthly income during the
past 12 months was $2,000.00; (ii) his and his spouse’s combined monthly income expected next
month is $300.00; (iii) his and his spouse’s combined monthly expenses are $1,380.00; (iv) he has
$207.00 in bank accounts; and (v) his only assets are two vehicles with a combined value of
$4,000.00. Because his monthly expenses exceed his expected monthly income, the Court finds
that Plaintiff is unable to prepay the fees to initiate this action.
Jurisdiction
Plaintiff filed his Complaint using the form “Complaint for a Civil Case Alleging Breach
of Contract (28 U.S.C. § 1332; Diversity of Citizenship).” Plaintiff, who resides in New Mexico,
alleges that Defendant Black, who resides in California, is Plaintiff’s landlord and that Defendant
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Black breached the lease agreement and failed to disclose that the leased property contains
lead-based paint.

Defendants Jeremy R. Jones, Brian Parrish and Sommer, Udall, Sutin,

Hardwick and Hyatt, P.A. (“Sommer Law Firm”), who represent Defendant Black in his attempt to
terminate the lease, reside in New Mexico. Plaintiff alleges Defendant Black breached the lease
agreement because he: (i) failed to provide disclosures required under federal law; (ii) did not
provide for the upkeep of the property; (iii) did not make need repairs; (iv) did not adjust the rent to
the market value; and (v) failed to give Plaintiff notice of changes to the lease agreement.
The Court does not have diversity jurisdiction over this action. In order to invoke
diversity jurisdiction, “a party must show that complete diversity of citizenship exists between the
adverse parties and that the amount in controversy exceeds $75,000. Complete diversity is
lacking when any of the plaintiffs has the same residency as even a single defendant.” Dutcher v.
Matheson, 733 F.3d 980, 987 (10th Cir. 2013). There is not complete diversity n this case
because Plaintiff and Defendants Jones, Parrish and Sommer Law Firm are residents of New
Mexico.
The Court also does not have federal question jurisdiction because the only claim is breach
of contract; there are no allegations that this action arises under the Constitution or laws of the
United States. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all
actions arising under the Constitution, laws, or treaties of the United States”). “A case ‘arises
under’ federal law under two circumstances: ‘a well-pleaded complaint establishes either that
federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on
resolution of a substantial question of federal law.’ ” Gilmore v. Weatherford, 694 F.3d 1160, 1170
(10th Cir.2012) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690,

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126 S.Ct. 2121, 165 L.Ed.2d 131 (2006)). Although Plaintiff alleges that Defendant Black
breached the contract in part because Black “failed to provide disclosures required under federal
law,” and calculates a portion of his damages based on “the EPA’s 1984 policy on civil
penalties,” federal law does not create the breach of contract cause of action and resolution of the
breach of contract claim will not depend on resolution of a substantial question of federal law.
Complaint at 4.
The Court will dismiss the Complaint without prejudice for lack of jurisdiction. See Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action”). Plaintiff may file an amended complaint within 21 days of entry
of this Order. Failure to timely file an amended complaint may result in dismissal of this case
without prejudice.
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at this time.
The Court will order service if Plaintiff timely files an amended complaint which includes a short
and plaint statement of the grounds for the Court’s jurisdiction.

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IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 3, filed November 14, 2016, is GRANTED.
IT IS ALSO ORDERED that Plaintiff’s Complaint for a Civil Case Alleging Breach of
Contract (28 U.S.C. § 1332; Diversity of Citizenship), Doc. 1, filed November 14, 2016, is
DISMISSED without prejudice. Plaintiff may file an amended complaint within 21 days of
entry of this Order.

__________________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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