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North Point Investment Fund, LLC v. Daniel Rivera

July 9, 2012

NORTH POINT INVESTMENT FUND, LLC,
PLAINTIFF,
v.
DANIEL RIVERA,
DEFENDANT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DENYING APPLICATION FOR IN FORMA PAUPERIS; REMANDING UNLAWFUL DETAINER ACTION TO SANTA CLARA COUNTY SUPERIOR COURT

United States District Court For the Northern District of California

Defendant Daniel Rivera ("Defendant" or "Rivera"), proceeding pro se, filed a notice of removal of a Santa Clara County Superior Court unlawful detainer action to this Court. See ECF 18 No. 1. Defendant also filed an application for leave to proceed in forma pauperis ("IFP"), so that 19 he may proceed in federal court without paying the $350.00 filing fee. See ECF No. 2; 28 U.S.C. § 20 1914(a). North Point Investment Fund ("Plaintiff") has moved to remand the case to state court.*fn1 ECF No. 8. Defendant did not file an opposition to Plaintiff's motion to remand. The deadline to 22 file an opposition has passed. Thus, Plaintiff's motion to remand is unopposed. See Civil L.R. 7-23 3(a). Pursuant to Civil Local Rule 7-1(b), the Court finds that Plaintiff's motion is suitable for 24 decision without oral argument. Accordingly, the motion hearing and case management 25 conference set for September 6, 2012 are VACATED. Having reviewed the state court complaint 26 27 and the relevant law, the Court determines the complaint was improperly removed from state court. 2

Accordingly, the application for leave to proceed in forma pauperis is DENIED, and the case is 3 REMANDED to state court. 4

located at 1168 Cathay Drive, San Jose, CA 95122 (the "Property"). See Complaint ("Compl.") ¶ 7

4, ECF No. 1. Plaintiff is the owner of the Property having purchased the premises at a trustee's 8 sale on April 9, 2012. Id. ¶ 6. On April 24, 2012, Plaintiff filed an unlawful detainer action in 9

I.BACKGROUND

This action arises from Plaintiff's efforts to evict Defendant from residential property

Santa Clara County Superior Court against Claudia Almejo, the previous owner of the property, 10 and Does 1-20. The unlawful detainer action was based on a failure to comply with a 3-day Notice 11 to Quit. Id. ¶¶ 7-10. Defendant Daniel Rivera is a current tenant of the Property.

For the Northern District of California

See, e.g., Notice of Removal Ex. at 17-22. 13 United States District Court

On June 7, 2012, Rivera removed the unlawful detainer action to federal court. ECF No. 1.

The matter was originally assigned to Magistrate Judge Howard R. Lloyd and was reassigned to the 15 undersigned judge on June 8, 2012. See ECF Nos. 4-6. 16

All parties instituting a civil action, suit, or proceeding in a district court of the United States, other than a petition for writ of habeas corpus, must pay a filing fee of $350.00. 28 U.S.C. 19 § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave 20 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 21 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right," and "[t]he 22 granting or refusing of permission to proceed in forma pauperis is a matter committed to the sound 23 discretion of the ...


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