United States District Court, D. New Jersey
AHS HOSPITAL CORP. d/b/a MORRISTOWN MEDICAL CENTER, Plaintiff',
TOBIA IPPOLITO, Defendant.
OPINION & ORDER
MICHAEL VAZQUEZ. U.S.D.J.
matter comes before the Court upon Defendant Tobia
Ippolito's notice of removal and his application to
proceed in forma pauper is. D.E. 1.
28 U.S.C. § 1915, this Court may excuse a litigant from
prepayment of fees when the litigant "establishes] that
he is unable to pay the costs of his suit." Walker
v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d
Cir. 1989). Defendant sufficiently establishes his inability
to pay, and the Court grants his application to proceed
in forma pauperis without prepayment of fees and
costs. When allowing a plaintiff to proceed in forma
pauperis, however, the Court must review the pleadings
and dismiss the matter if it determines that the action is
frivolous, malicious, or fails to set forth a proper basis
for this Court's subject matter jurisdiction. 28 U.S.C.
§ 1915(e)(2)(B); 28 U.S.C. § 1447(c); see also
New Jersey v. Aristeo, No. 14-7911, 2014 WL 7404539, at
*l-2 (D.N.J. Dec. 30, 2014) (granting in forma
pauperis application of removing defendant and sua
sponte remanding the action for lack of subject matter
jurisdiction), aff'd, 610 Fed.Appx. 95 (3d Cir.
2015). Because Defendant is proceeding pro se, the
Court construes Defendant's papers liberally and holds
them to a less stringent standard than those filed by
attorneys. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court, however, need not credit a pro se
party's "'bald assertions' or 'legal
conclusions.'" Grohs v. Yatauro, 984
F.Supp.2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
case is filed in state court, a defendant may remove any
action over which federal courts have original subject matter
jurisdiction. See 28 U.S.C. § 1441(a). The
party removing the action has the burden of establishing
federal jurisdiction. Steel Valley Auth. v. Union Switch
& Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).
This burden is heavy, since removal statutes are
"strictly construed against removal and all doubts
should be resolved in favor of remand." Id. For
removal to be proper based on federal question jurisdiction,
a federal court must have original jurisdiction, that is, the
removed claims must arise from a "right or immunity
created by the Constitution or laws of the United
States." Concepcion v. CFG Health Sys. LLC, No.
13-02081, 2013 WL 5952042, at *2 (D.N.J. Nov. 6, 2013);
see also 28 U.S.C. § 1331 ("The district
courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States."). In determining whether a complaint
alleges a federal question, courts are generally guided by
the well-pleaded complaint rule. According to the rule,
"a plaintiff is ordinarily entitled to remain in state
court so long as its complaint does not, on its face,
affirmatively allege a federal claim."
Concepcion, 2013 WL 5952042, at *2.
is removing a matter in which Plaintiff is attempting to
recover approximately S5, 000 of unpaid medical bills.
See Notice of Removal at 13-16. The Complaint does
not raise a federal question on its face. Defendant, however,
appears to argue that the medical bills were incurred while
he was incarcerated at county correctional facilities and
that resolution of the matter involves a substantial question
of federal law. See generally Notice of Removal.
These arguments, however, appear to relate to a potential
federal affirmative defense, not something that Plaintiff
alleged in its Complaint. "Federal jurisdiction cannot
be established by a federal defense or by challenging the
merits of a claim." Rutterv. Wright, No,
15-4418, 2015 WL 3949092, at *2(D.N.J. June 29, 2015) (citing
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
case also does not meet the federal question jurisdiction
standard recognized in Smith v, Kan. City Title & Tr.
Co., 255 U.S. 180 (1921) or its progeny, including
Gunn v. Minton, 568 U.S. 1 (2013). Therefore, the
Court lacks subject matter jurisdiction over this matter. As
such, remand is proper.
and for good cause shown, IT IS on this 16th day of May,
2019, ORDERED that pursuant to 28 U.S.C.
§ 1915(a), Defendant Tobia Ippolito's application to
proceed in forma pauperis is
GRANTED; and it is further
that the Clerk of the Court is directed to file the Notice of
Removal without prepayment of the filing fee; and it is
further ORDERED that this matter is
REMANDED to the Superior Court of New
Jersey, Morris County for lack of subject matter
jurisdiction; and it is further
that the Clerk of the Court is directed to mail a copy of
this Opinion and Order to Defendant by regular mail and by
certified mail return receipt; and it is further ORDERED that
the Clerk of the Court shall CLOSE this matter.
 Although a defendant may also seek to
remove a matter based on diversity jurisdiction, 28 U.S.C.
§ 1332, Defendant's notice of removal only addresses
federal question jurisdiction. Therefore, the Court will not