Opinion
Civil Action No. 06-2038.
July 10, 2006
ORDER-MEMORANDUM
AND NOW, this 10th day of July, 2006, plaintiff Michael Norley's pro se "Application to Proceed in Forma Pauperis" in this court is granted, 28 U.S.C. § 1915(a). This action is also remanded to the Court of Common Pleas of Chester County, 28 U.S.C. § 1447(c).
"In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing the action; and second, whether the action is frivolous or malicious."Rewolinski v. Morgan, 896 F. Supp. 879, 880 (E.D. Wis. 1995), citing 28 U.S.C. § 1915(a) and (d).
Michael Norley's "Application to Proceed in Forma Pauperis" demonstrates his inability to pay this court's statutory filing fee. Plaintiff has been diagnosed with multiple sclerosis and has been unable to work since September 1994. He receives food stamps ($148 per month) and loans from friends. He has no savings or checking accounts. His application does not disclose the value of residential and business real property that he owns, apparently with his estranged wife, but does refer to a mortgage in the amount of $315,000, and his ownership of two automobiles with an alleged combined value of $700. It represents that two of plaintiff's minor children are dependent on him for support. Application, ¶¶ 2, 5-9. Because of his lack of funds, he is unable to pays the costs of these proceedings or to give security, Application, ¶ 2.
"One need not be completely destitute in order to proceed in forma pauperis under § 1915. An affidavit demonstrating that the petitioner cannot, because of poverty, provide himself and any dependents with the necessities of life is sufficient."Rewolinski, 896 F. Supp. at 880, citing Adkins v. DuPont de Nemours Co., 335 U.S. 331, 339-40 (1948).
The application also avers having taken defaults against defendants in Norley v. State of Pennsylvania, U.S.D.C., E.D. Pa., Civ. A. No. 05-5311 totaling approximately $500 million. However, the docket in that case does not reflect the entry of default against any defendant, and six separate motions to dismiss the complaint are pending. See docket entries. These defaults will not be considered in deciding plaintiff's request to proceed in forma pauperis.
With respect to the merits of plaintiff's claim, an action was commenced by East Bradford Township in the Court of Common Pleas of Chester County against Michael Norley and Mary Norley, and removed by Michael Norley without the joinder of Mary Norley. The state court complaint alleges that Michael Norley and Mary Norley maintain a junkyard and a temporary structure on their property located at 912 Greene Countrie Drive, West Chester, PA, Tax Parcel No. 51-03-0043. Complaint, Counts I and II. The Norleys lack the required licenses or use and occupancy permits to utilize the property as a junkyard or to maintain the temporary structure. Complaint, ¶¶ 57-61, 81-82. Therefore, they are in violation of § 66-3, § 115-86.1(A)(2), § 115-109, and § 73-2(A) of the Ordinances of East Bradford Township. Complaint, ¶¶ 64, 83, 84, 91. The complaint requests an injunction against the Norleys' illegal use of the property. Without filing any response to the state court complaint, on May 12, 2006, Mr. Norley filed a Notice of Removal. East Bradford Township and the other defendants named in the Notice of Removal have filed a motion to remand the action to state court, which will be granted because this court lacks jurisdiction over this matter.
"Under § 1915(e)(2)(B), a court may dismiss a case `at any time' if it determines an action or appeal (1) is frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages from a defendant with immunity. An action or appeal can be frivolous for either legal or factual reasons." Tittler v. Klem, 2002 WL 31993975 (3d Cir., Dec. 9, 2002), citing Neitzke v. Williams, 490 U.S. 319, 325 (1989). "The frivolous standard . . . requires that a court assess an in forma pauperis complaint from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention." Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995).
On March 27, 2006, East Bradford Township filed the state court action, styled East Bradford Township v. Michael Norley, Sr. and Mary C. Norley, C.P. Chester, No. 06-2549. On May 12, 2006, Mr. Norley removed the state court action to this court, and, in addition to East Bradford Township, named as defendants the following individuals: Brendan L. Beaumont, Thomas A. Egan, John B. Hagens, Vincent M. Pompo, Unruh, Turner, Burke Frees, P.C., Anthony T. Verwey, Carolyn B. Welsh, David Reeves, William P. Mahon and John and Jane Doe defendants.
East Bradford Township also filed a petition for preliminary injunctive relief with the complaint. On March 27, 2006, the Honorable William P. Mahon entered an order requiring defendants to appear at a hearing on May 26, 2006, to show cause why the requested injunction should not issue. A copy of the order is included with the Notice of Removal.
On April 12, 2006, plaintiff was served with the complaint and the petition by the Chester County Sheriff. On April 17, 2006, Ms. Norley was served with the complaint and the petition. Ms. Norley has not consented to or otherwise joined in Mr. Norley's removal of this action.
In the absence of diversity of citizenship, a federal court may not exercise jurisdiction over a matter unless a federal question exists. Pan American Petroleum Corp. v. Superior Court of Delaware, 366 U.S. 656, 663 (1961). Diversity jurisdiction requires that, "all of the parties on one side of the controversy must be citizens of a different state from all of the parties on the other side." Enza v. We the People, Inc., 838 F. Supp. 975, 977 (E.D. Pa. 1993); 28 U.S.C. § 1332(a). Here, there is no diversity between the parties — to the contrary, the state court pleadings and the Notice of Removal demonstrate that all parties are citizens and residents of the Commonwealth of Pennsylvania. Therefore, in order for this court to exercise jurisdiction, a federal question must be presented.
"The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal question jurisdiction exists only when a federal question is presented on the face of plaintiff's properly pleaded complaint." Gukin v. Nagle, 259 F.Supp.2d 406, 409 (E.D. Pa. 2003), quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Removal is permitted "`only when the plaintiff's statement of his own cause of action shows that it is based upon [federal] laws or [the] Constitution.'"Gukin, 259 F.Supp.2d at 409, quoting Bracken v. Matgouranis, 296 F.3d 160, 163 (3d Cir. 2002) (emphasis added). Here, East Bradford Township's complaint states a cause of action in equity to enforce local zoning ordinances. It is a purely state law matter. In the absence of either diversity or a federal question, this court lacks jurisdiction over this matter and it must be remanded to state court.
It is noted that plaintiff's Notice of Removal alleges violations of his Constitutional rights of Due Process and Equal protection. See Notice of Removal. However, "actions are not removable based on the availability of a federal defense to the state law grounded complaint." Gukin, 259 F.Supp.2d at 409, citing Bracken, 296 F.3d at 163.
Defendants also argue that a fatal defect exists in the removal process because Ms. Norley has not consented in writing to the removal of this action. Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995) ("the failure of all defendants to remove creates a defect in removal proceedings within the meaning of [28 U.S.C.] § 1447(c)"). Plaintiff counters that Ms. Norley was never served with original process because the Sheriff of Chester County did not personally serve her, as required by Pa.R.Civ. P. 400(a). It is unnecessary to discuss this argument, given the absence of jurisdiction over this matter.