Dimension Townhouses LLC v. Coates

Filing 4

ORDER signed by Judge Benjamin H. Settle denying #2 Motion for Leave to Proceed in forma pauperis and remanding case back to Pierce County. (TG; cc mailed to pro se party)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DIMENSION TOWNHOUSES LLC,
Plaintiff,

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CASE NO. C17-5637 BHS
ORDER

v.
MICHELLE COATES,

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Defendant.

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This matter comes before the Court on Defendant Michelle Coates’s (“Coates”)

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motion to proceed in forma pauperis (Dkt. 2) and proposed notice of removal (Dkt. 1).

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On August 14, 2017, Coates filed the instant motion and proposed removal of

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Plaintiff Dimension Townhouses, LLC’s (“Dimension”) complaint for unlawful detainer.

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Id. Coates asserts that the Court has jurisdiction over the matter because her answer

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asserts a violation of the notice requirements of the Protection Tenants at Foreclosure

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Act, 12 U.S.C. § 5220. Id.

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The district court may permit indigent litigants to proceed in forma pauperis upon

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completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a); W.D. Wash.

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Local Rules LCR 3(b). However, the “privilege of pleading in forma pauperis . . . in

ORDER - 1

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civil actions for damages should be allowed only in exceptional circumstances.” Wilborn

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v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). The court has broad discretion in denying

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an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir.

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1963), cert. denied 375 U.S. 845 (1963). Here, Coates’ affidavit and in forma pauperis

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application show that she is unable to prepay fees and costs. See Dkt. 1.

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However, even if a plaintiff satisfies the financial requirements for eligibility to

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proceed in forma pauperis, the Court’s review of the application and underlying

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complaint is not complete. Under the in forma pauperis statute, the Court must dismiss

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the case sua sponte if it determines at any time that (1) the allegation of poverty is untrue,

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(2) the action is frivolous or malicious, (3) the complaint fails to state a viable claim, or

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(3) the action seeks monetary relief against an immune defendant. 28 U.S.C. §

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1915(e)(2).

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If at any time before final judgment it appears that the district court lacks subject

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matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). District courts have

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federal question jurisdiction over all claims “arising under the Constitution, laws, or

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treaties of the United States.” 28 U.S.C. § 1331. “The presence or absence of federal

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question jurisdiction is governed by the ‘well-pleaded complaint’ rule, which provides

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that federal question jurisdiction exists only when a federal question is presented on the

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face of the plaintiff’s properly pleaded complaint.” California v. United States, 215 F.3d

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1005, 1014 (9th Cir. 2000). “In determining the existence of removal jurisdiction, based

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upon a federal question, the court must look to the complaint as of the time the removal

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ORDER - 2

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petition was filed.” O’Halloran v. Univ. of Washington, 856 F.2d 1375, 1379 (9th Cir.

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1988).

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In this case, Coates’s attempt to remove this case is improper. While Coates

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alleges that any eviction would violate federal tenant laws, the claim is not presented in

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Coates’s answer. Dkt. 1-2. Even if it were in the answer, Coates has failed to allege that

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she is the tenant of a foreclosed property and entitled to protection under § 5220.

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Therefore, the Court REMANDS this case sua sponte for lack of jurisdiction and

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DENIES Coates’s motion for leave to proceed in forma pauperis as moot. The Clerk

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shall remand to Pierce County Court and close this case.

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IT IS SO ORDERED.

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Dated this 17th day of August, 2017.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3