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Capital One, N.A. v. Lugue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 11, 2010

CAPITAL ONE, N.A., PLAINTIFF,
v.
AUGUSTIN LUGUE, DEFENDANT.

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS

(Document 2)

On September 21, 2010, Defendant Augustin Lugue filed a Notice of Removal with this Court. (Doc. 1.) That same date, Defendant filed an Application to Proceed Without Prepayment of Fees and Affidavit. (Doc. 2.) For the reasons that follow, Defendant's application is DENIED.

First, Defendant's application indicates he is currently employed at the "California Correctional Women Facility," with a take home salary or wage of $2,700.00 per month. (Doc. 2 at 1.) Further, Defendant indicates he has $200.00 in cash, or in a checking or savings account. He indicates he does not own any real estate, stocks, bonds, other financial instruments, automobiles or any other thing of value. Lastly, Defendant claims his spouse and three children are dependent upon him for support. (Doc. 2 at 2.)

After considering Defendant's application, the application is denied as Defendant is currently employed and earning a monthly salary. Therefore, Defendant is not entitled to proceed without payment of the filing fee.

Accordingly, Defendant is advised that in order to proceed with a removal action to this Court, he must pay a filing fee of $350.00 (see 28 U.S.C. § 1914) no later than December 13, 2010.

As an aside, and for Defendant's information, this Court notes that Title 28 of the United States Code section 1446 provides, in relevant part:

(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....

Defendant's notice of removal indicates he seeks to remove an action that was apparently filed on or about August 12, 2010, in the Fresno County Superior Court.*fn1 Defendant filed his notice of removal in this Court on September 21, 2010, or forty (40) days later. Defendant's notice may be timely, however, the notice fails to indicate when Defendant was served with process in the state court action.

Additionally, the Court notes that Defendant has not provided "a copy of all process, pleadings, and orders served upon such defendant or defendants in such action" (28 U.S.C. § 1446(a)), nor does it appear Defendant has served Plaintiff Capitol One, N.A. and the state court with a copy of the notice of removal (28 U.S.C. § 1446(d)), as required.

ORDER

For the foregoing reasons, Defendant's Application to Proceed Without Prepayment of Fees is DENIED. As a result:

1. Defendant shall pay the filing fee of $350.00 no later than December 13, 2010, in order to proceed with this action;

2. Assuming Defendant elects to pay the filing fee and proceed, he shall file all process, pleadings and orders served upon him in the state court action, on or before December 13, 2010; and

3. Defendant shall immediately file a proof of service, indicating Plaintiff Capitol One, N.A. and the Fresno County Superior Court has been given written notice of this action.

Failure to comply with this Order will result in the dismissal of this action.

IT IS SO ORDERED.


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