Hurst v. Gagnon et al, No. 3:2015cv05509 - Document 9 (W.D. Wash. 2015)
Court Description: ORDER DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE by Judge Robert J. Bryan. Mr. Williams' Application to Proceed In Forma Pauperis (Dkt. 1) is DENIED. This case is REMANDED to Pierce County, Washington Superior Court. The Pending Motions to Remand (Dkts. 4 and 7) are stricken as moot. (Copy mailed to Walter Williams @ Tacoma address.)(DK)
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Hurst v. Gagnon et al Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 RAY HURST, Plaintiff, 12 13 14 15 16 17 CASE NO. C15-5509 RJB v. ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE JASON GAGNON, SUZANNE GAGNON, and their marital community comprised thereof, and ALL OTHER OCCUPANTS OF PREMISES AT 503 8TH AVENUE NW, PUYALLUP, WASHINGTON 98003-7332, Defendants. 18 This matter comes before the Court on Walter L. Williams’ Application to Proceed In 19 Forma Pauperis (Dkt. 1) and on review of the file (Dkt. 1-1 through 1-3). The Court has 20 considered the relevant record and the remainder of the file herein. 21 On July 23, 2015, Mr. Williams filed a Notice of Removal and an application to proceed 22 in forma pauperis (IFP), that is, without paying the filing fee for a civil case. Dkt. 1. 23 24 ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE- 1 Dockets.Justia.com 1 Standard for Granting Application for IFP. The district court may permit indigent 2 litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See 3 28 U.S.C. § 1915(a). However, the court has broad discretion in denying an application to 4 proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 5 U.S. 845 (1963). 6 Application to Proceed IFP. Mr. Williams states that he is disabled and has no income 7 except $197 in public assistance. Dkt. 1. In his application, he indicates he supports four 8 children at $60.00 per month. Id. He states that his monthly expenses are: “rent - $100.00.” Id. 9 Decision on IFP Application. The application to proceed in forma pauperis (Dkt. 1) 10 should be denied. A district court may deny leave to proceed in forma pauperis at the outset if it 11 appears from the face of the proposed complaint that the action is frivolous or without merit. 12 Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998), (quoting Tripati v. First Nat'l Bank & 13 Trust, 821 F. 2d 1368, 1370 (9th Cir. 1987)). As stated below, the removal of this case is 14 frivolous. 15 Review of the Notice of Removal and Attachments. The Court has carefully reviewed 16 the Notice of Removal and attachments in this matter. Because Mr. Williams filed this case pro 17 se, the Court has construed the pleadings liberally and has afforded Mr. Williams the benefit of 18 any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988). 19 Notice of Removal. The Notice of Removal indicates that this case was originally filed in 20 Pierce County Washington Superior Court as an Unlawful Detainer action. Dkt. 1-2. The Notice 21 of Removal was filed by Mr. Williams, who identifies himself as a tenant in the home, although 22 he was not specifically named in the Pierce County Washington Superior Court case. Dkt. 1-1. 23 24 ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE- 2 1 Mr. Williams asserts that removal is proper because this Court has jurisdiction under 28 2 U.S.C. § 1332, diversity of citizenship. Dkt. 1-1. The pleadings, however, indicate Mr. 3 Williams is a citizen of Washington State. Id. Mr. Williams indicates that Defendants are also 4 Washington citizens. Id. Mr. Williams states that jurisdiction also exists under 28 U.S.C. §1331, 5 because the Plaintiff in the underlying unlawful detainer action “is attempting to hold the 6 defendant to a contract in connection with an unlawful sale, perpetuation and in collusion with 7 violation of . . . 42 USC, 1983 [sic] et seq. and 18 USC, Sec 1964 [sic] as well as the 8 Constitution of the United States and in particular the 7th amendment “as this is a ‘suit at 9 common law.’” Id., at 3. 10 The Court notes that in 2012, two of the named defendants here, Jason and Suzanne 11 Gagnon, filed a case in this court in an attempt to stop foreclosure of the residential property at 12 issue in this case. Gagnon v. Wells Fargo Home Mortgage, Western District of Washington case 13 number C12-5501 RJB. They asserted violations of the Fair Debt Collections Practices Act, 15 14 U.S.C. § 1692 et seq., the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and the Telemarketing 15 and Consumer Fraud and Abuse Prevention Action, 15 U.S.C. § 6101 et seq. Id., at Dkt. 1. 16 Their case was dismissed with prejudice by stipulation of the parties. Id., at Dkt. 38. 17 This case was filed on July 15, 2015. Dkt. 1-2. The Complaint for Unlawful Detainer 18 indicates that the Plaintiff, Ray Hurst, purchased the subject property at a trustee’s sale and that 19 the Defendants have not yet vacated the property. Id. 20 Removal. Removal of a case from a state court to a United States District Court is 21 governed by the provisions of 28 U.S.C. §§ 1441 and 1446, which provide, in relevant part, as 22 follows: 23 Except as otherwise expressly provided by Act of congress, any civil action brought in a State court of which the district courts of the United States have 24 ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE- 3 1 2 original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. 3 4 28 U.S.C. § 1441(a). 5 6 7 8 9 10 11 (a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. (b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorts. 12 28 U.S.C. § 1446. 13 The usual rule is that all defendants in an action in a state court must join in a petition for 14 removal. See Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 393 (1998); Chicago, 15 R.I. & P.R. Co. v. Martin, 178 U.S. 245, 248 (1900); Ely Valley Mines, Inc., v. Hartford, 644 16 F.2d 1310, 1314 (9th Cir.1981). The rule of unanimity does not apply to nominal, unknown or 17 fraudulently joined parties, see Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th 18 Cir.1988). 19 Decision on Removal. The notice of removal is deficient. 20 First, Mr. Williams is not a named party in the underlying action, nor has he moved to 21 intervene. Second, not all defendants in the state court action joined in the removal. Dkt. 1. 22 Third, the Notice of Removal does not adequately demonstrate that the court has subject matter 23 jurisdiction. 24 ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE- 4 1 Federal courts are courts of limited jurisdiction. Lance v. Coffman, 549 U.S. 437, 439 2 (2007). Their subject matter jurisdiction is limited to cases involving federal questions, 28 3 U.S.C. § 1331, and cases involving people from diverse states, 28 U.S.C. § 1332. Subject matter 4 jurisdiction must exist before a federal court can proceed to the merits of a case. Lance, at 439. 5 Plaintiffs bear the burden of establishing subject matter jurisdiction exists at the time the case 6 was filed. Kikkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to 28 7 U.S.C. § 1447(c), “[i]f at any time before final judgment it appears that the district court lacks 8 subject matter jurisdiction, the case shall be remanded.” Jurisdiction is a threshold issue that 9 must be raised sua sponte. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 10 (1998). 11 Mr. Williams has not shown that this Court has federal question jurisdiction. The 12 documents filed in this matter, including the documents filed along with the Notice of Removal, 13 show that this is a case involving state law. The court has no jurisdiction over state law claims. 14 Even if the complaint could be interpreted as raising a defense under federal law, an 15 interpretation that is tenuous at best, such a defense would not confer federal jurisdiction. “A 16 defense that raises a federal question is inadequate to confer federal jurisdiction.” Merrell Dow 17 Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986). 18 Further, Mr. Williams’ Notice of Removal fails to show that this Court has diversity 19 jurisdiction. Mr. Williams indicates that he is a citizen of Washington State and as are all other 20 parties in the case. There is no showing that the amount in controversy is over $75,000. 21 This removal is frivolous. The case should be remanded to Pierce County, Washington 22 Superior Court. Mr. Hurst’s Motions for Remand (Dkts. 4 and 7) should be stricken as moot. 23 24 ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE- 5 1 IFP on Appeal. In the event that Mr. Williams appeals this order, and/or appeals 2 dismissal of this case, IFP status should be denied by this Court, without prejudice to Mr. 3 Williams to file with the Ninth Circuit U.S. Court of Appeals an application to proceed in forma 4 pauperis. 5 Future filings. Other than a Notice of Appeal, any filings in this case in the future will 6 be docketed by the Clerk but not acted upon by the Court. 7 Therefore, it is hereby ORDERED that: 8 9 10 Mr. Williams’ Application to Proceed In Forma Pauperis (Dkt. 1) is DENIED. This case is REMANDED to Pierce County, Washington Superior Court. In the event that Mr. Williams appeals this order, IFP status is DENIED by this court, 11 without prejudice to Mr. Williams to file with the Ninth Circuit U.S. Court of Appeals an 12 application to proceed in forma pauperis. 13 14 Other than a Notice of Appeal, any filings in this case in the future will be docketed by the Clerk but not acted upon by the court. 15 The Pending Motions to Remand (Dkts. 4 and 7) are stricken as moot. 16 / / 17 / 18 19 20 21 22 23 24 ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE- 6 1 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 2 to any party appearing pro se at said party’s last known address. 3 Dated this 27th day of August, 2015. 4 5 6 7 8 A ROBERT J. BRYAN United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING CASE- 7
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