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Leo B. Barrozo; Maria Concepcion Barrozo v. Aurora Loan Services

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 5, 2011

LEO B. BARROZO; MARIA CONCEPCION BARROZO, PLAINTIFFS,
v.
AURORA LOAN SERVICES, LLC, DEFENDANT.

ORDER

On December 15, 2010, plaintiffs, proceeding in pro se, filed a complaint, a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and a motion for a preliminary injunction. Dckt. Nos. 1, 3, 4. This matter was referred to this court by Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).

On December 22, 2010, the undersigned issued an order explaining that the court could not find, based on the affidavit plaintiffs submitted in support of their application to proceed in forma pauperis, that plaintiffs have insufficient assets to pay the filing fee and costs and provide the necessities of life for themselves and their dependents. Dckt. No. 5 at 2. Therefore, the order directed plaintiffs to file "a further affidavit containing a more detailed accounting of their monthly expenses and an explanation as to why plaintiffs are unable to pay the filing fee and costs and provide the necessities of life for themselves and their dependents," and stated that the court would then resume consideration of plaintiffs' application to proceed in forma pauperis. Id.

On December 27, 2010, plaintiffs filed additional documentation in support of their application to proceed in forma pauperis. Dckt. No. 6. Together, plaintiffs' initial affidavit and additional documentation demonstrate that plaintiffs are unable to prepay fees and costs or give security thereof. Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. The court cannot make this determination on the present record. Therefore, the court reserves decision on these issues until the record is sufficiently developed.

However, the court does note that plaintiffs' motion for a preliminary injunction, Dckt. No. 3, does not comply with Eastern District of California Local Rules 230(b) or 231(d). Therefore, the motion will be denied without prejudice.

Accordingly, good cause appearing, IT IS HEREBY ORDERED that:

1. Plaintiffs' request to proceed in forma pauperis, Dckt. No. 4,is granted.

2. Plaintiffs' motion for a preliminary injunction, Dckt. No. 3, is denied without prejudice.

3. The Clerk of the Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4.

4. The Clerk of Court shall send plaintiffs one USM-285 form, one summons, a copy of the complaint, this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes and the court's voluntary dispute resolution program.

5. Plaintiffs are advised that the U.S. Marshal will require:

a. One completed summons;

b. One completed USM-285 form for each defendant;

c. A copy of the complaint for each defendant, with an extra copy for the U.S. Marshal; and,

d. A copy of this court's scheduling order and related documents for each defendant.

6. Plaintiffs shall supply the United States Marshal, within 14 days from the date this order is filed, all information needed by the Marshal to effect service of process, and shall, within 14 days thereafter, file a statement with the court that said documents have been submitted to the United States Marshal.

7. The U.S. Marshal shall serve process, with copies of this court's scheduling order and related documents, within 90 days of receipt of the required information from plaintiffs, without prepayment of costs. The United States Marshal shall, within 14 days thereafter, file a statement with the court that said documents have been served. If the U.S. Marshal is unable, for any reason, to effect service of process on any defendant, the Marshal shall promptly report that fact, and the reasons for it, to the undersigned.

8. The Clerk of Court shall serve a copy of this order on the United States Marshal, 501 "I" Street, Sacramento, CA 95814 (tel. 916-930-2030).

20110105

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