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The Bank of New York Mellon, Successor In v. Tony Collin Hook; Emily Ann

April 6, 2012

THE BANK OF NEW YORK MELLON, SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK, AS TRUSTEE FOR THE REGISTERED HOLDERS OF NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2004-3 NOVASTAR HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2004-3, PLAINTIFF,
v.
TONY COLLIN HOOK; EMILY ANN HOOK; LESLIE DIANTONIO; AND DOES 1 THROUGH 5, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER:

(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2]

AND

(2) REMANDING ACTION TO STATE COURT

On April 2, 2012, Defendant Leslie Diantonio ("Diantonio") removed an unlawful detainer action from state superior court to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441(a). [Doc. No. 1, Notice of Removal.] Along with her notice of removal, Defendant Diantonio submitted a motion to proceed in forma pauperis ("IFP"). [Doc. No. 2.] For the reasons below, the Court GRANTS Diantonio's motion to proceed IFP, but REMANDS the action back to state court for lack of subject matter jurisdiction.

DISCUSSION

I. MOTION TO PROCEED IN FORMA PAUPERIS

All parties instituting any civil action, suit, or proceeding in a district court whether by original process, removal or otherwise, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). However, an action may proceed despite failure to pay the filing fee if the party is granted in forma pauperis ("IFP") status. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Court may grant IFP status to any party who demonstrates that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a).

In the present case, having reviewed Defendant Diantonio's motion and declaration in support of the motion, the Court finds that Diantonio has made a sufficient showing of inability to pay the required filing fees. See Rodriguez, 169 F.3d at 1177. Accordingly, good cause appearing, the Court GRANTS Defendant Diantonio leave to proceed in forma pauperis.

II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)

After granting IFP status, the Court must dismiss the case if the complaint "fails to state a claim on which relief may be granted" or is "frivolous." 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

A. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over matters authorized by the Constitution and Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A defendant may remove a civil action from state court to federal court only if the district court could have original jurisdiction over the matter. 28 U.S.C. § 1441(a). "Removal statutes are strictly construed against removal." Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008). There is a "strong presumption" against removal jurisdiction, and the party seeking removal always has the burden of establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If there is any doubt as to the propriety of removal, federal jurisdiction must be rejected. Id. at 567. If at any time before the entry of final judgment it appears that the Court lacks subject matter jurisdiction over a case removed from state court, it must remand the action to state court. See 28 U.S.C. § 1447(c); Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 87 (1991).

Defendant Diantonio's notice of removal alleges that this court has federal question jurisdiction over the action pursuant to 28 U.S.C. § 1331. [Notice of Removal ¶¶ 5-14.] Under 28 U.S.C. § 1331, this Court has original jurisdiction over civil actions "arising under" federal law. Removal based on § 1331 is governed by the "well-pleaded complaint" rule. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the rule, "federal jurisdiction exists only when a federal question is presented on the face of plaintiff's ...


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