The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
AMENDED FINDINGS AND RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA PAUPERIS, TO REMAND THE MATTER TO THE KERN COUNTY SUPERIOR COURT AND TO DISMISS THE MATTER (Docs. 1, 2, 5)
Olga Lopez is seeking, purportedly, to remove an action from the Kern County Superior Court based upon her claim that there is diversity of citizenship and because she claims that the United States of America is the real party in interest. (Doc. 1) Currently before the Court is Plaintiff's motion to proceed in forma pauperis ("IFP"). (Doc 2) On August 4, 2010, Lopez filed an amended notice of removal. The only change appears to be her handwritten correction to the case number of the Kern County Superior Court action.
I. The motion to proceed in forma pauperis is recommended to be denied because the matter is frivolous, is filed for purposes of harassment and fails to state a claim .
On July 26, 2010, Lopez filed an application to proceed in IFP pursuant to 28 U.S.C. § 1915. (Doc. 3) Under 28 USC § 1915(e)(2), the Court is obligated to deny the motion to proceed IFP if the allegation of poverty is untrue or the action is frivolous or malicious, it fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune. For the reasons set forth below, the Court recommends that the motions to proceed IFP be DENIED and the action be DISMISSED WITH PREJUDICE .
On June 11, 2009, Lopez and Daniel Lopez*fn1 were sued in Kern County Superior Court in case number S-1500-CL-239442 for unlawful detainer.*fn2 Lopez filed an answer in the action on August 4, 2009 after her demurrer to the complaint was overruled on July 30, 2009. The matter was stayed twice; first when Daniel Lopez filed bankruptcy, which was later dismissed, and second when Lopez filed bankruptcy. Ultimately the stay was lifted and the Kern Court proceeded to judgment.
The underlying state court complaint, attached to Lopez's filing as Exhibit 1, details that on May 19, 2009, the plaintiff, HSBC, foreclosed on the property where Lopez and Daniel Lopez lived. (Doc. 1, Exhibit 1 ¶¶ 2, 5) Although the Lopezs were served with notices to quit the property, they failed to do so. Id. at ¶¶ 6-7. In the unlawful detainer action, HSBC sought to have the Lopezs evicted from the property and to receive an award of $50 per day rental value. Id. at ¶ 9. Notably, on the caption of the complaint, HSBC asserted that the damages sought were "UNDER $10,000.00."
On July 26, 2010, the same date that the current proceedings were initiated in the Eastern District of California, Lopez filed a notice of removal in the Kern County Superior Court action.
The Kern County Superior Court denied the motion for removal based upon Lopez's failure to post a bond. Despite that the matter was set for trial on that day, Lopez failed to appear. However, the Court proceeded and held the trial with Daniel Lopez present. At the conclusion of the trial, the Kern Court found in favor of HSBC and against the Lopezs and awarded $21,650 in rental damages.
Lopez purports to file a motion to remove the state court action based upon diversity of citizenship and because she contends that the United States of America is the real party in interest.*fn3 Lopez asserts that the Court has original jurisdiction in this matter under 28 USC §§ 1346 and 2410. (Doc. 1 at 4) Toward this end, Lopez asserts that HSBC is a foreign corporation rather than a corporation registered to do business in California. Id. at 3. She provides no evidence to this effect but, on this basis, she claims that the United States is the real party in interest because, she claims, as a foreign corporation doing business in this country, HSBC "acts as a federal agency."*fn4 Id. Lopez claims that HSBC sought to quiet title in the subject property and for ejectment in the state court action although, in fact, that action merely stated a cause of action for unlawful detainer. Id. at 3-4. Finally, Lopez fails to provide any evidence that her co-defendant, Daniel Lopez, joins in the removal.
C. The Matter was not Timely Removed
Under 28 U.S.C. § 1446(b) provides,
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 ...