Bank of New York Mellon Trust Company NA v. Janicki et al

Filing 2

ORDER denying 1 Motion for Leave to Proceed in forma pauperis; the Court will sua sponte REMAND this case to the Pierce County Superior Court; the Court will not entertain a motion for fees or costs; this matter is closed; signed by Judge Ronald B. Leighton.(DN) Modified on 1/16/2018 (DN). (cc to Charles Janicki)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BANK OF NEW YORK MELLON
TRUST COMPANY NA,

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Plaintiff,
v.

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CASE NO. C18-5003RBL
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND REMANDING CASE TO STATE
COURT

MICHELLE L JANICKI, and
CHARLES A. JANICKI,
Defendants.

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THIS MATTER is before the Court on the Janickis’ Motion to Proceed in forma pauperis
[Dkt. # 1] filed in conjunction with their Notice of Removal [Dkt. # 1-1] of a state court unlawful
detainer action brought by Plaintiff Bank of New York Mellon Trust Company. The Bank
alleges that the Janickis are in unlawful possession of a foreclosed home in Gig Harbor. It asserts
claims under RCW 61.24.060. The Janickis’ Notice of Removal asserts this court has jurisdiction
over the case because “federal questions exist” and that the parties are “diverse.” They
apparently intend defend the unlawful detainer by contesting the underlying foreclosure,
claiming rights under the Bankruptcy code. They seek in forma pauperis status to avoid paying
the filing fee associated with removal.

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ORDER DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AND REMANDING CASE
TO STATE COURT - 1

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The underlying Pierce County Unlawful Detainer Complaint is attached to the Notice of

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Removal. [Dkt. 1-1 at 6-8]. It specifically references only “RCW 61.24.060” and the Chapter

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59.12 RCW. It does not reference, rely upon, or assert any claim under any federal law or statute;

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it is a plain vanilla, state law eviction case. It seeks possession of the property, fair rent, and fees

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and costs if the case goes to trial.

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A 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). The court has broad

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discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil

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actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th Cir.

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1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny leave to proceed in

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forma pauperis at the outset if it appears from the face of the proposed [pleading] that the action

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is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.

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1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis complaint

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is frivolous if “it ha[s] no arguable substance in law or fact.” Id. (citing Rizzo v. Dawson, 778

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F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

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A pro se plaintiff’s complaint is to be construed liberally, but like any other complaint it

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must nevertheless contain factual assertions sufficient to support a facially plausible claim for

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relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 570 (2007)). A claim for relief is facially plausible when “the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678.

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The party asserting federal jurisdiction has the burden of proof to establish jurisdiction.
See Conrad Associates v. Hartford Accident & Indemnity Co., 994 F. Supp. 1196 (N.D. Cal.

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ORDER DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AND REMANDING CASE
TO STATE COURT - 2

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1998). The removal statute is strictly construed against removal jurisdiction, and the strong

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presumption against removal jurisdiction means that the defendant always has the burden of

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establishing removal is proper. Id. at 1198. It is obligated to do so by a preponderance of the

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evidence. Id. at 1199; see also Gaus v. Miles, 980 F.2d 564, 567 (9th Cir. 1992). Federal

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question jurisdiction “exists only when a federal question is presented on the face of the

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plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

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In determining the existence of removal jurisdiction based upon a federal question, the court

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must look to the complaint as of the time the removal petition was filed. O’Halloran v. Univ. of

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Wash., 856 F.2d 1375, 1379 (9th Cir. 1988) (citations omitted).

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A defense is not part of a plaintiff’s properly pleaded statement of claim. Rivet v. Regions

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Bank of Louisiana, 522 U.S. 470, 475 (1998). Accordingly, “a case may not be removed to

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federal court on the basis of a federal defense.” Franchise Tax Bd. v. Constr. Laborers Vacation

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Trust, 463 U.S. 1, 14 (1983).

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The underlying complaint does not raise or rely on a federal question, and the Janickis’

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claim that they have a federal defense is not sufficient to confer jurisdiction. Nor does this Court

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have diversity jurisdiction over the case. The sole issue in an unlawful detainer action is

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possession of property. There is no “amount in controversy.” See Green Tree Servicing, LLC v.

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Shoemaker, 2005 U.S. Dist. LEXIS 36171, at *8–9 (W.D. Wash. July 15, 2005) (referencing

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RCW 61.24.060).

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The Janickis have not met and cannot meet their burden of establishing that removal was

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proper, or that this court has jurisdiction over the case. The removal of this action was therefore

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improper.

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ORDER DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AND REMANDING CASE
TO STATE COURT - 3

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The Motion to Proceed in forma pauperis is DENIED. The Court will sua sponte

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REMAND this case to the Pierce County Superior Court. The Court will not entertain a motion

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for fees or costs. The matter is closed.

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IT IS SO ORDERED.

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Dated this 16th day of January, 2018.

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A

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Ronald B. Leighton
United States District Judge

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ORDER DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AND REMANDING CASE
TO STATE COURT - 4