United States District Court, D. Kansas
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
J. James United States Magistrate Judge.
Timothy I. Moman removed this action on July 12, 2017, by
filing a Notice of Removal (ECF No. 1) of a Petition for
Foreclosure of Mortgage filed by Plaintiff Ocwen Loan
Servicing LLC in the District Court of Johnson County,
Kansas. Defendant has filed a Motion to Proceed Without
Prepayment of Fees (ECF No. 3) with an attached affidavit of
financial status. Under the in forma pauperis statute, 28
U.S.C. § 1915(a)(1), the court may authorize the defense
of a civil action “without prepayment of fees or
security therefor, by a person who submits an affidavit . . .
[if] the person is unable to pay such fees or give security
therefor.” To succeed on a motion to proceed in forma
pauperis, the movant must show he or she is financially
unable to pay the required filing fee. The decision to
grant or deny in forma pauperis status under section 1915
lies within the sound discretion of the trial
on the information provided in his financial affidavit,
Defendant has shown a financial inability to pay the required
filing fees. Defendant is currently employed, but his
reported monthly expenses are nearly as great as his income.
In addition, the Court notes the action is one for
foreclosure of Defendant's home. The Court will therefore
grant Defendant's Motion to Proceed Without Prepayment of
Fees pursuant to 28 U.S.C. § 1915(a)(1).
Defendant is granted leave to proceed without prepayment of
the filing fee, the Court conducts a review under 28 U.S.C.
§ 1915(e)(2)(B) to determine whether this case is
subject to dismissal.
removed this case under the authorizing statute which states
in relevant part that “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United
States.” Removal is entirely a statutory right, and
therefore the removing party must follow the relevant
statutory procedures. At any time before final judgment, the
district court must remand a case that appears to have been
removed improvidently. The burden of showing that removal is
proper is with the removing party.
asserts removal is proper because complete diversity exists
between Plaintiff Ocwen Loan Servicing LLC, a national bank
with a registered main office located in Florida that is
therefore considered a citizen of Florida for diversity
purposes, and Defendant Moman who is a citizen of Kansas. In
addition, Defendant states that Ocwen is seeking to collect a
debt relating to and to foreclose on real property whose
value is greater than $75, 000. Accordingly, Defendant
contends jurisdiction exists pursuant to 28 U.S.C. §
notice of removal must be filed “within 30 days after
the receipt by the defendant, through service or otherwise,
of a copy of the initial pleading.” In his notice of
removal, Defendant states that he “received notice of
the Complaint on March 31, 2017, via the court clerk. Service
has been effectuated by the court on February 7,
2017.” Under a heading of “Procedural
Requirements - Timeliness, ” Defendant asserts he
“first received notice of the Complaint on March 31,
2017.” While it is unclear what Defendant knew
as of February 7, the Court is cognizant that because
Defendant proceeds pro se, his pleadings are liberally
construed. Accordingly, for purposes of this Order,
the Court finds that Defendant received a copy of the initial
pleading on March 31, 2017. Calculating 30 days from that
date yields a deadline of May 1, 2017 for Defendant to file a
notice of removal. Defendant did not file his Notice of
Removal until July 12, 2017. It is therefore untimely, and
subject to remand to state court.
Court also notes that in a civil action removed under Section
1441(a), “all defendants who have been properly joined
and served must join in or consent to the removal of the
action.”The Complaint in this case filed by Ocwen
names seven Defendants in addition to Timothy I.
Moman. The 21-day deadline for Moman to file in
this court a copy of all state court records and proceedings
has not passed,  and as of the date of this order he has
not done so. Accordingly, the Court is unaware whether any or
all of these other defendants have been properly joined and
served. At this time, therefore, the Court does not find an
additional procedural deficiency caused by fewer than all
defendants joining in or consenting to the Notice of Removal.
Neither will the Court require Defendant to show cause with
respect to the other named defendants, as service on those
persons and entities is not his responsibility.
THEREFORE ORDERED that Defendant's Motion to Proceed
Without Prepayment of Fees (ECF No. 3) is hereby granted.
FURTHER ORDERED that Defendant is hereby required to show
good cause in writing to the Honorable Julie A. Robinson,
United States District Judge, on or before August 15, 2017,
why this action should not be remanded for failure to timely
file a notice of removal.