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Wells Fargo Bank, N.A. v. Ford

United States District Court, D. New Jersey

August 22, 2018

WELLS FARGO BANK, N.A. as trustee, on behalf of the holders of the Harbor View Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1, Plaintiff,
v.
EMILIE FORD, Defendant.

          STEFANIE MALONE-ZEITZ STERN & EISENBERG On behalf of Plaintiff

          EMILIE FORD Appearing pro se

          MEMORANDUM OPINION & ORDER

          NOEL L. HILLMAN, U.S.D.J.

         WHEREAS Defendant Emilie Ford, appearing pro se, filed a Notice of Removal on August 14, 2018; and

         WHEREAS Defendant states an “Unlawful Detainer action” was initiated against her and that she has been denied “her due process right and equal protection under the 14th Amendment to protect her tenancy”; and

         WHEREAS Defendant has filed an application to proceed without prepayment of fees (“in forma pauperis” or “IFP” application), and pursuant to 28 U.S.C. § 1915(a)(1), a court may allow a litigant to proceed without prepayment of fees if he submits a proper IFP application; and

         WHEREAS, although § 1915 refers to “prisoners, ” federal courts apply § 1915 to non-prisoner IFP applications, Hickson v. Mauro, No. 11-6304, 2011 WL 6001088, at *1 (D.N.J. Nov. 30, 2011) (citing Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005)); Lister, 408 F.3d at 1312 (“Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners.”); and

         WHEREAS the screening provisions of the IFP statute require a federal court to dismiss an action sua sponte if, among other things, the action is frivolous or malicious, or if it fails to comply with the proper pleading standards, see 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); Martin v. U.S. Dep't of Homeland Security, No. 17-3129, 2017 WL 3783702, at *1 (D.N.J. Aug. 30, 2017) (“Federal law requires this Court to screen Plaintiff's Complaint for sua sponte dismissal prior to service, and to dismiss any claim if that claim fails to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6) and/or to dismiss any defendant who is immune from suit.”); and

         WHEREAS pro se complaints and notices of removal must be construed liberally, and all reasonable latitude must be afforded the pro se litigant, Estelle v. Gamble, 429 U.S. 97, 107 (1976), but pro se litigants “must still plead the essential elements of [their] claim and [are] not excused from conforming to the standard rules of civil procedure, ” McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”); Sykes v. Blockbuster Video, 205 Fed.Appx. 961, 963 (3d Cir. 2006) (finding that pro se plaintiffs are expected to comply with the Federal Rules of Civil Procedure); and

         WHEREAS the Court notes that “[f]ederal courts are courts of limited jurisdiction” which “possess only that power authorized by Constitution and statute, ” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); and

         WHEREAS it is unclear whether Defendant is basing this Court's jurisdiction on diversity or federal question;[1] and

         WHEREAS, to the extent Defendant pleads this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, Plaintiff has failed to sufficiently plead the citizenship of Plaintiff and Defendant[2]; and

         WHEREAS to the extent Defendant pleads the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, federal question jurisdiction cannot be predicated on a federal defense, see Ayala-Castro v. GlaxoSmithKline (In re Avandia Mktg.), 624 F.Supp.2d 396, 414 (E.D. Pa. 2009) (“In determining whether a case ‘arises under' federal law and thus supports federal question jurisdiction, a federal court refers to the plaintiff's well-pleaded complaint. The requisite federal issue ‘must be disclosed upon the face of the complaint.' Federal question jurisdiction may not be based on a federal issue raised in a defense.” (footnotes omitted))); and

         WHEREAS it further appears to this Court that Defendant's Notice of Removal reads more as an appeal of a state court action, than as a removal of a state court action, see Notice of Removal at 4 (“[T]he actions of Counsel for Plaintiff, and the State Court are depriving Defendant of due ...


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