Funtila v. Casey

[2] UNITED STATES DISTRICT COURT [3] DISTRICT OF NEVADA [4] * * * [5] Michael Funtila, Case No. 2:24-cv-00776-DJA [6] Plaintiff, 7 Order v. [8] Alicia Casey and James Grant, [9] Defendants. [10] 11 Pro se Defendants Alicia Casey and James Grant1 filed an application to proceed in forma 12 pauperis. (ECF No. 3). However, the application is incomplete. The Court thus denies the 13 application without prejudice. 14 I. In forma pauperis application. 15 Under 28 U.S.C. § 1915 (a)(1), a person may bring a civil action “without prepayment of 16 fees or security therefor” if the person submits a financial affidavit that demonstrates the person 17 “is unable to pay such fees or give security therefor.” The Ninth Circuit has recognized that 18 “there is no formula set forth by statute, regulation, or case law to determine when someone is 19 poor enough to earn [in forma pauperis] status.” Escobedo v. Applebees, 787 F.3d 1226 , 1235 20 (9th Cir. 2015). An applicant need not be destitute to qualify for a waiver of costs and fees, but 21 he must demonstrate that because of his poverty he cannot pay those costs and still provide 22 himself with the necessities of life. Adkins v. E.I DuPont de Nemours & Co., 335 U.S. 331 , 339 23 (1948). 24 The applicant’s affidavit must state the facts regarding the individual’s poverty “with 25 some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938 , 940 [27] 1 Defendants have attached a document titled “Notice of Removal” citing 28 U.S.C. § 1446 (b) to 1 (9th Cir. 1981) (citation omitted). If an individual is unable or unwilling to verify his or her 2 poverty, district courts have the discretion to make a factual inquiry into a person’s financial 3 status and to deny a request to proceed in forma pauperis. See, e.g., Marin v. Hahn, 271 4 Fed.Appx. 578 (9th Cir. 2008) (finding that the district court did not abuse its discretion by 5 denying the plaintiff’s request to proceed in forma pauperis because he “failed to verify his 6 poverty adequately”). “Such affidavit must include a complete statement of the [person]’s 7 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16-cv-00768 AJB (BLM), 2016 8 U.S. Dist. LEXIS 192145 , at *1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient 9 grounds for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441 , 10 443-44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on 11 in forma pauperis application). 12 As a preliminary matter, it is not clear which Defendant has filed the application to 13 proceed in forma pauperis. Although only one filing fee needs to be paid per case, if multiple 14 parties seek to proceed without paying the filing fee, each party seeking to do so must qualify for 15 in forma pauperis status. Anderson v. California, No. 10-cv-02216-MMA-AJB, 2010 WL 16 4316996, at *1 (S.D. Cal. Oct. 27, 2010). This means that both Alicia Casey and James Grant 17 must file applications. Additionally, the application is incomplete because whoever filed the 18 application did not list their employer in response to question 2 and the application is not signed 19 or dated on page 3. (ECF No. 3 at 2). The Court will give Casey and Grant another opportunity 20 to file their respective applications to proceed in forma pauperis. The Court denies the instant in 21 forma pauperis application without prejudice. 22 II. Jurisdiction. 23 Since the Court denies Defendants’ application, it does not screen the initiating documents 24 at this time. See 28 U.S.C. § 1915 (e)(2) (explaining that the court is required to screen cases filed 25 by parties proceeding without paying the filing fee). However, a federal court has an independent 26 duty to assess whether federal subject matter jurisdiction exists. See United Investors Life Ins. 27 Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had 1 parties raised the issue or not”); see Bullard v. Smith, No. 19-cv-65-WQH-LL, 2019 WL 338595 , 2 at *1-2 (S.D. Cal. Jan. 28, 2019) . But here, the Court cannot make a jurisdictional assessment on 3 the documents the Defendants filed because they did not include “a copy of all process, pleadings, 4 and orders” served on them in the underlying state court action. See 28 U.S.C. § 1446 (a). While 5 Plaintiff attached certain of the state court filings to his motion to remand, it appears that certain 6 documents—like Plaintiff’s complaint for summary eviction filed on April 18, 2024—were not 7 included. (ECF No. 6). And ultimately, it is Defendants’ responsibility to file the state court 8 documents in federal court under 28 U.S.C. § 1446 (a). The Court will thus require that 9 Defendants file the documents required by 28 U.S.C. § 1446 (a). [10] 11 IT IS THEREFORE ORDERED that Defendants’ application to proceed in forma 12 pauperis (ECF No. 3) is denied without prejudice. 13 IT IS FURTHER ORDERED that each Defendant shall have until until July 15, 2024 to 14 file an application to proceed in forma pauperis. Both Defendants must file separate applications. 15 Alternatively, Defendants may choose to pay the filing fee on or before July 15, 2024. If 16 Defendants choose to pay the filing fee, they need only make a one-time payment. They do not 17 each need to pay the filing fee. 2 18 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send 19 Defendants a copy of this order and two copies of the Short Form application to proceed in forma 20 pauperis and its instructions.3 21 IT IS FURTHER ORDERED that Defendants must include the documents required by [22] 28 U.S.C. § 1446 (a) with their applications to proceed in forma pauperis or their filing fee. [25] 2 Defendants are informed that this order does not impact any other case-related deadlines, 26 including the deadline by which Defendants must respond to Plaintiff’s motion to remand (ECF No. 6). [27] 3 This form and its instructions can also be found at https://www.nvd.uscourts.gov/court1 IT IS FURTHER ORDERED that failure to comply with this order may result in 2 case terminating sanctions. [3] 4 DATED: June 14, 2014 [5] DANIEL J. ALBREGTS 6 UNITED STATES MAGISTRATE JUDGE