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Ditech Financial LLC v. Ross

United States District Court, D. New Jersey

April 17, 2019

DITECH FINANCIAL LLC formerly known as GREEN TREE SERVICING LLC, Plaintiff,
v.
MICHAEL J. ROSS, DEBORAH ROSS, ABC BAIL BONDS INC., SANTANDER BANK, NATIONAL ASSOCIATION, STATE OF NEW JERSEY, CLAYTONS SELF STORAGE, MIDLAND FUNDING LLC, and UNITED STATES OF AMERICA, Defendants.

          Appearances: Michael J. Ross Appearing pro se.

          MEMORANDUM OPINION & ORDER

          NOEL L. HILLMAN, U.S.D.J.

         WHEREAS Defendant Michael J. Ross filed a Notice of Removal, Petition for Removal, Memorandum Supporting Petition for Removal, a copy of the underlying state court docket and various court documents, various exhibits, and an application to proceed in forma pauperis (“IFP Application”) on April 1, 2019; and

         WHEREAS Mr. Ross did not include a copy of the original state court complaint within the papers initially filed with the Court; and

         WHEREAS Mr. Ross transmitted a copy of the state court complaint to the Court on April 5, 2019; and

         WHEREAS it appears the underlying complaint was filed in the Superior Court of New Jersey, Chancery Division, Salem County on November 18, 2015; and

         WHEREAS 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 Mr. Ross submitted his IFP Application on the wrong form, it appears he would qualify to proceed in forma pauperis, without the prepayment of fees; 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 typically individuals seek permission to file a complaint, not a notice of removal; but

         WHEREAS the Court notes 28 U.S.C. § 1915(a)(1) applies to the “commencement, prosecution or defense of any suit . . . without prepayment of fees . . . by a person who submits an affidavit, ” see, e.g., Long & Foster Real Estate v. Smith, No. 17-6768 (NLH/KMW), 2017 U.S. Dist. LEXIS 148184, at *1 n.1 (D.N.J. Sept. 13, 2017) (finding 28 U.S.C. § 1915 applies to screening of a notice of removal) (citing Bey v. Pennsylvania, 345 Fed.Appx. 731, 732 (3d Cir. 2009); 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 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 “[f]ederal courts are courts of limited jurisdiction, and when there is a question as to [the] authority to hear a dispute, ‘it is incumbent upon the courts to resolve such doubts, one way or the other, before proceeding to a disposition on the merits, '” Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010) ...


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