United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL
REPORT AND RECOMMENDATION
J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE.
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.
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”). [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.
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.
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)). “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).
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).
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).
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.
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.
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 ...