NORLEY v. NORLEY et al

Filing 2

MEMORANDUM AND ORDER THAT THE PRO SE APPLICATION OF MICHAEL NORLEY TO PROCEED IN FORMA PAUPERIS IS GRANTED. THIS ACTION IS ALSO REMANDED TO THE COURT OF COMMON PLEAS OF CHESTER COUNTY. SIGNED BY JUDGE EDMUND V. LUDWIG ON 7/17/06. 7/17/06 ENTERED AND COPIES MAILED.(gs)

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NORLEY v. NORLEY et al Doc. 2 Case 2:06-cv-03016-EL Document 2 Filed 07/17/2006 Page 1 of 3 I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA M I C H A E L NORLEY v. M AR Y C. NORLEY, et al. : : : : : C I VI L ACTION N o . 06-3016 O R D E R -M E M O R A N D U M A N D NOW , this 17 th day of July, 2006, plaintiff Michael Norley's pro se " A p p l i c a ti o n to Proceed in Forma Pauperis" in this court is granted, 28 U.S.C. 1915(a).1 This action is also remanded to the Court of Common Pleas of Chester County, 28 U.S.C. 1447(c).2 M i c h a e l Norley's "Application to Proceed in Forma Pauperis" demonstrates his inability to pay this court's statutory filing fee.3 Plaintiff has been diagnosed with multiple sclero sis and has been unable to work since September 1994. He receives food stamps ($148 p e r month) and loans from friends. He has no savings or checking accounts. His application 1 "In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing the action; and second, whether the action is frivolous or malicious. Rewolinski v. Morgan, 896 F. Supp. 879, 880 (E.D. Wis. 1995), citing 28 U.S.C. 1915(a) and (d). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. 1447(c). Federal courts have a duty "to examine their subject matter jurisdiction at all stages of the litigation sua sponte if the parties fail to raise the issue. That obligation extends to removal cases, as well as those originally filed in the district court." U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002). "One need not be completely destitute in order to proceed in forma pauperis under 1915. An affidavit demonstrating that the petitioner cannot, because of poverty, provide himself and any dependents with the necessities of life is sufficient." Rewolinski, 896 F. Supp. At 880, citi ng Adkins v. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). 3 2 Dockets.Justia.com Case 2:06-cv-03016-EL Document 2 Filed 07/17/2006 Page 2 of 3 d o e s not disclose the value of residential and business real estate that he owns, apparently with his estranged wife, but does refer to a mortgage in the amount of $315,000, and to his ow nersh ip of two automobiles with an alleged combined value of $700. It represents that t w o of plaintiff's minor children are dependent on him for support. Application, 2, 5-9.4 B e c a u s e of his lack of funds, he is unable to pay the costs of these proceedings or to give s e c u r it y, Application, 2. With respect to the merits of plaintiff's claim,5 Mary Norley filed an action in divorce a g a i n s t Michael Norley, which was removed to this court by Michael Norley. 6 In his Notice o f Removal, Mr. Norley avers that the divorce action is the product of a RICO enterprise i n v o l v in g all of the defendants named in the action removed to this court, and is a violation The application also avers having taken defaults against defendants in Norley v. State of Pennsylvania, U.S.D.C., E.D. Pa., Civ. A. No. 05-5311, totaling approximately $500 million. However, the docket in that case does not reflect the entry of default against any defendant, and six separate motions to dismiss the complaint are pending. See docket entries. These defaults will not be considered in deciding plaintiff's request to proceed in forma pauperis. "Under 1915(e)(2)(B), a court may dismiss a case `at any time' if it determines an action or appeal (1) is frivolous or malicious, (ii) fails to state a claim upon which relief can be granted, or (iii) seeks monetary damages from a defendant with immunity. An ation or appeal can be frivolous for either legal or factual reasons." Tittler v. Klem,, 2002 WL 31993975 (3d Cir. , Dec. 9, 2002), citing Neitzke v. Williams, 490 U.S. 319, 325 (1989). "The frivolous standard . . . requires that a court assess an in forma pauperis complaint from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention." Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995). On June 30, 2005, Mary Norley filed an action in divorce, styled Mary C. Norley v. Michael Norley, C.P. Chester, No. 05-5193. On July 9, 2006, Mr. Norley removed the divorce action to this court, and, in addition to Mary Norley, named as defendants the following individuals: Carolyn B. Welsh, James P. MacElree II, Alita A. Rovito, and John and Jane Doe defendants. 2 6 5 4 Case 2:06-cv-03016-EL Document 2 Filed 07/17/2006 Page 3 of 3 o f his federal constitutional rights. Notice of Removal at 2-3. "W h ere the parties are not diverse, removal is appropriate only if the case falls within t h e district court's original `federal question' jurisdiction: `all civil actions arising under the C o n s t i tu t i o n , laws, or treaties of the United States.'" U.S. Express Line, Ltd. v. Higgins, 281 F . 3 d 383, 389 (3d Cir. 2002). The parties in this case are not diverse.7 The divorce c o m p l a i n t does not describe any basis for this court's exercise of federal question jurisdiction o v e r this domestic relations matter, which is governed solely by state law.8 Therefore, the ca se must be remanded to the Court of Common Pleas of Chester County. B Y THE COURT: /s/ Edmund V. Ludwig Edmund V. Ludwig, J. Diversity jurisdiction requires that, "all of the parties on one side of the controversy must be citizens of a different state from all of the parties on the other side." Enza v. We the People, Inc., 838 F.Supp. 975, 977 (E.D. Pa. 1993); 28 U.S.C. 1332(a). Removal is permitted "`only when the plaintiff's statement of his own cause of action shows that it is based upon [federal] laws or [the] Constitution.'" Gukin v. Nagle, 259 F.Supp.2d 406, 409 (E.D. Pa. 2003), quoting Bracken v. Matgouranis, 296 F.3d 160, 163 (3d Cir. 2002) (emphasis added). While Mr. Norley's Notice of Removal alleges violation of his Constitutional rights, "action are not removable based on the availability of a federal defense to the state law grounded complaint." Id. 3 8 7

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