Eastside Fundling LLC v. Evans et al

Filing 3

ORDER DENYING IFP AND REMANDING CASE. This case is REMANDED to Pierce County Superior Court. Signed by Judge Robert J. Bryan. (JL) Paper copies sent to plaintiffs @ Tacoma address . Modified on 3/16/2015 (JL).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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EASTSIDE FUNDING LLC,
Plaintiff,

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CASE NO. C15-5137 RJB
ORDER DENYING IFP AND
REMANDING CASE

v.
WENDELL EVANS and CHERYL
DUKE,
Defendants.

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This matter comes before the Court on the Defendants’ Application to Proceed In Forma
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Pauperis (“IFP”) (Dkts. 1 and 2) and on review of the file. The Court has reviewed the relevant
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documents on the remainder of the file herein.
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This case involves an unlawful detainer action that was filed in Pierce County Superior
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Court by Eastside Funding LLC against Wendell Evans and Cheryl Duke. Dkt. 1-1.
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APPLICATIONS TO PROCEED IFP
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Standard for Granting Application for IFP. The district court may permit indigent
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litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See
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ORDER DENYING IFP AND REMANDING
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1 28 U.S.C. § 1915(a). However, the court has broad discretion in denying an application to
2 proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375
3 U.S. 845 (1963).
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Defendants’ Application to Proceed IFP. Defendant Cherly Duke states that she

5 receives $1,951 from social security disability. Dkt. 2. She states that she has around $1,680 in
6 monthly expenses. Dkt. 2. In his description of “other income” Defendant Wendell Evans states
7 in his IFP application that he receives “disability (gross) 7.20 in only source income.” Dkt. 1, at
8 1. He reports $500.00 in expenses. Dkt. 1, at 2.
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Decision on Application to Proceed IFP. It appears that Defendants have the income to

10 pay the filing fee in this case. They have made a choice to remove this civil action. While the
11 costs of this action may place a burden on their resources, Defendants appear to have sufficient
12 funds to pay the filing fee. Defendants’ Application to Proceed In Forma Pauperis (“IFP”)
13 (Dkts. 1 and 2) should be denied.
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IFP on Appeal. In the event that Defendants appeal this order, and/or appeals dismissal

15 of this case, IFP status should be denied by this court, without prejudice to Defendants to file
16 with the Ninth Circuit U.S. Court of Appeals an application to proceed in forma pauperis.
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REVIEW OF THE FILE
On March 5, 2015, Frank W. Roberson and Effie Roberson removed this case to federal

19 court from Pierce County Superior Court. Dkt. 1. The Notice of Removal states that jurisdiction
20 is based upon federal question jurisdiction, pursuant to 28 U.S.C. § 1331. Dkt. 1-1, at 2. The
21 Notice of Removal states that “Plaintiff has actually filed a Federal Question Action,” and that
22 “the Complaint in this action was filed . . . as artful pleading” that “intentionally fails to allege
23 compliance with the Civil Rights Act of 1968.” Dkt. 1-1, at 2. The Notice of Removal states
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ORDER DENYING IFP AND REMANDING
CASE- 2

1 that “[t]he Federal Cause of Action in ejectment/eviction is the basis for this action, irrespective
2 of artful pleading, such that action could have been brought in Federal District Court.” Dkt. 1-1,
3 at 3.
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Pursuant to 28 U.S.C. § 1447(c), “[i]f at any time before final judgment it appears that the

5 district court lacks subject matter jurisdiction, the case shall be remanded.” Jurisdiction is a
6 threshold issue that must be raised sua sponte. Steel Co. v. Citizens for a Better Environment,
7 523 U.S. 83, 94-95 (1998).
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A federal court is presumed to lack subject matter jurisdiction until a plaintiff establishes

9 otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West,
10 Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, the plaintiff bears
11 the burden of proving the existence of subject matter jurisdiction. Stock West, 873 F.2d at 1225;
12 Thornhill Publishing Co., Inc. v. Gen’l Tel & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979);
13 Association of Am. Med. Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000). The
14 documents filed in this matter, including the documents filed along with the Notice of Removal,
15 show that this is a case involving state law. The court has no jurisdiction over state law claims.
16 Even if the documents filed could be interpreted as raising a defense under federal law, an
17 interpretation that is tenuous at best, such a defense would not confer federal jurisdiction. “A
18 defense that raises a federal question is inadequate to confer federal jurisdiction.” Merrell Dow
19 Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986).
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A review of the pleadings filed shows that the court does not have subject matter

21 jurisdiction over this case. The case should be remanded to Pierce County Superior Court,
22 pursuant to28 U.S.C. § 1447(c).
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ORDER DENYING IFP AND REMANDING
CASE- 3

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Accordingly, it is hereby ORDERED that:


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Defendants’ Application to Proceed In Forma Pauperis (Dkts. 1 and 2) ARE
DENIED;

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In the event that Defendants appeal this order, and/or appeals dismissal of this

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case, IFP status IS DENIED by this court, without prejudice to Defendants to file

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with the Ninth Circuit U.S. Court of Appeals an application to proceed in forma

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pauperis; and

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This case is REMANDED to Pierce County Superior Court.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

10 to any party appearing pro se at said party’s last known address. The Clerk is directed to take the
11 steps necessary to remand this case to Pierce County Superior Court.
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Dated this 16th day of March, 2015.

A
ROBERT J. BRYAN
United States District Judge

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ORDER DENYING IFP AND REMANDING
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