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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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 DIMENSION TOWNHOUSES LLC, Plaintiff, 9 10 CASE NO. C17-5637 BHS ORDER v. MICHELLE COATES, 11 Defendant. 12 13 This matter comes before the Court on Defendant Michelle Coates’s (“Coates”) 14 motion to proceed in forma pauperis (Dkt. 2) and proposed notice of removal (Dkt. 1). 15 On August 14, 2017, Coates filed the instant motion and proposed removal of 16 Plaintiff Dimension Townhouses, LLC’s (“Dimension”) complaint for unlawful detainer. 17 Id. Coates asserts that the Court has jurisdiction over the matter because her answer 18 asserts a violation of the notice requirements of the Protection Tenants at Foreclosure 19 Act, 12 U.S.C. § 5220. Id. 20 The district court may permit indigent litigants to proceed in forma pauperis upon 21 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a); W.D. Wash. 22 Local Rules LCR 3(b). However, the “privilege of pleading in forma pauperis . . . in ORDER - 1 1 civil actions for damages should be allowed only in exceptional circumstances.” Wilborn 2 v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). The court has broad discretion in denying 3 an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 4 1963), cert. denied 375 U.S. 845 (1963). Here, Coates’ affidavit and in forma pauperis 5 application show that she is unable to prepay fees and costs. See Dkt. 1. 6 However, even if a plaintiff satisfies the financial requirements for eligibility to 7 proceed in forma pauperis, the Court’s review of the application and underlying 8 complaint is not complete. Under the in forma pauperis statute, the Court must dismiss 9 the case sua sponte if it determines at any time that (1) the allegation of poverty is untrue, 10 (2) the action is frivolous or malicious, (3) the complaint fails to state a viable claim, or 11 (3) the action seeks monetary relief against an immune defendant. 28 U.S.C. § 12 1915(e)(2). 13 If at any time before final judgment it appears that the district court lacks subject 14 matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). District courts have 15 federal question jurisdiction over all claims “arising under the Constitution, laws, or 16 treaties of the United States.” 28 U.S.C. § 1331. “The presence or absence of federal 17 question jurisdiction is governed by the ‘well-pleaded complaint’ rule, which provides 18 that federal question jurisdiction exists only when a federal question is presented on the 19 face of the plaintiff’s properly pleaded complaint.” California v. United States, 215 F.3d 20 1005, 1014 (9th Cir. 2000). “In determining the existence of removal jurisdiction, based 21 upon a federal question, the court must look to the complaint as of the time the removal 22 ORDER - 2 1 petition was filed.” O’Halloran v. Univ. of Washington, 856 F.2d 1375, 1379 (9th Cir. 2 1988). 3 In this case, Coates’s attempt to remove this case is improper. While Coates 4 alleges that any eviction would violate federal tenant laws, the claim is not presented in 5 Coates’s answer. Dkt. 1-2. Even if it were in the answer, Coates has failed to allege that 6 she is the tenant of a foreclosed property and entitled to protection under § 5220. 7 Therefore, the Court REMANDS this case sua sponte for lack of jurisdiction and 8 DENIES Coates’s motion for leave to proceed in forma pauperis as moot. The Clerk 9 shall remand to Pierce County Court and close this case. 10 IT IS SO ORDERED. 11 Dated this 17th day of August, 2017. A 12 13 BENJAMIN H. SETTLE United States District Judge 14 15 16 17 18 19 20 21 22 ORDER - 3

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