Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Retreat LLC v. Moorer

United States District Court, N.D. Georgia, Atlanta Division

March 27, 2018

RETREAT LLC, doing business as Regal Vista, Plaintiff,
v.
OLIVIA MOORER, and All Others, Defendant.

          UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE.

         This matter is presently before the Court on an application to proceed in forma pauperis (“IFP”) filed by Defendant Olivia Moorer (“Defendant”). [Doc. 1]. For the reasons set forth below, the undersigned GRANTS the request to proceed IFP, but RECOMMENDS that the case be REMANDED to the State Court of DeKalb County, Georgia.

         I. Introduction

         On or about February 22, 2018, Plaintiff Retreat LLC, doing business as Regal Vista, (“Plaintiff”) filed a dispossessory action against Defendant in the Magistrate Court of DeKalb County, Georgia, for the property located at 3534 Pleasantbrook Village Lane, Apt. H, Doraville, Georgia 30340 (the “Property”).[1] [See Doc. 1-1 at 5]. On March 12, 2018, Defendant removed the case to this Court, filing a notice of removal and an IFP application. [Doc. 1; Doc. 1-1]. Although unclear, it appears that Defendant has removed the dispossessory proceeding on the basis of federal-question jurisdiction. [See Doc. 1-1 (alleging violation of 15 U.S.C. § 1692 and Rule 60 of the Federal Rules of Civil Procedure)]. The undersigned first turns to Defendant's request to proceed IFP before examining whether the state-court case may properly be removed to federal court.

         II. Discussion

         A. IFP Application

         The Court may authorize the commencement of an action without prepayment of fees if the claimant “submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). “Despite the statute's use of the phrase ‘prisoner possesses, ' the affidavit requirement applies to all persons requesting leave to proceed IFP.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004).

         “When considering a motion filed pursuant to § 1915(a), ‘[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty.' ” Id. at 1307 (alteration in original) (quoting Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976)).[2] “Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents.” Id. “A court may not deny an IFP motion without first comparing the applicant's assets and liabilities in order to determine whether he has satisfied the poverty requirement.” Thomas v. Chattahoochee Judicial Circuit, 574 Fed.Appx. 916, 917 (11th Cir. Sept. 9, 2014).

         Once the Court finds that the affidavit is “sufficient on its face to demonstrate economic eligibility, ” the Court should “then proceed to the question . . . of whether the asserted claim is frivolous.” Martinez, 364 F.3d at 1307 (alteration in original) (quoting Watson, 525 F.2d at 891). “[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal is frivolous . . . .” 28 U.S.C. § 1915(e)(2)(B)(i). “For purposes of § 1915(e)(2)(B)(i), an action is frivolous if it is without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (internal quotation omitted).

         An action only has legal merit in the federal court if it falls within the court's limited subject-matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see generally U.S. Const. art. III § 1. Accordingly, if an action does not fall within the Court's subject-matter jurisdiction, it is frivolous under § 1915(e)(2)(B)(i) and thus warrants dismissal of both the action itself and the accompanying IFP application. See Davis v. Ryan Oaks Apartment, 357 Fed.Appx. 237, 238 (11th Cir. Dec. 17, 2009) (affirming the district court's decision to vacate its order granting IFP because the court was “authorized, indeed compelled, to dismiss the case once it realized that subject-matter jurisdiction did not exist”). Moreover, whether or not a party has filed an IFP application with its action, the Court is obligated to consider sua sponte whether a claim falls within its subject-matter jurisdiction and dismiss the claim if it finds subject-matter jurisdiction to be lacking. See Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).

         Defendant's affidavit states that she has an average monthly income of $2200 through employment. She reports that she does not own real estate and has no bank accounts, and she does not report having any cash on hand or other assets. She states that she is a single mother of a five-year-old daughter. She reports monthly expenses of approximately $2200, made up of $1400 for housing, $300 for utilities, $200 for food, and $300 for motor vehicle installment payments.

         It appears that Plaintiff's affidavit is incomplete, as she reports making motor vehicle installment payments and states that she drives for Uber, but she does not report owning a car. Nevertheless, Defendant's modest expenses exceed her income, a minor child depends on her for support, and the nature of the lawsuit indicates that Defendant is behind in her housing payments and is at immediate risk of losing her home. The undersigned therefore concludes that Defendant cannot pay the Court's filing fees without foregoing basic necessities of life. The Court therefore GRANTS Defendant's IFP application for these proceedings only.

         B. Jurisdictional Review

         Because the undersigned has determined that Defendant has satisfied the § 1915(a) poverty requirement and may proceed IFP, the Court shall now perform a § 1915(e)(2)(B)(i) frivolity review of Defendant's removal action. [See Doc. 1-1]. A case can only be removed from state to federal court if the federal court has original jurisdiction over the matter in controversy. See 28 U.S.C. § 1441(a). The federal court has subject matter jurisdiction over civil actions on the basis of either diversity jurisdiction or federal-question jurisdiction. See 28 U.S.C. §§ 1331, 1332. “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “Consistent with the limited nature of federal jurisdiction, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.