United States District Court, D. New Mexico
December 28, 2016
JARED MORRIS NICHOLSON, Plaintiff,
KENT BLACK, JEREMY R. JONES, BRIAN PARRISH, and SOMMER, UDALL, SUTIN, HARDWICK and HYATT, PA, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on pro se
Plaintiff's Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 3, filed November 14,
2016 (“Application”), and on his Complaint for a
Civil Case Alleging Breach of Contract (28 U.S.C. §
1332; Diversity of Citizenship), Doc. 1, filed November 14,
2016 (“Complaint”). For the reasons stated below,
the Court will GRANT Plaintiff's Application and DISMISS
Plaintiff's Complaint without prejudice. Plaintiff shall
have 21 days from entry of this Order to file an amended
to timely file an amended complaint may result in dismissal
of this case without prejudice.
to Proceed in forma pauperis
statute for proceedings in forma pauperis, 28 U.S.C.
§ 1915(a), provides that the Court may authorize the
commencement of any suit without prepayment of fees by a
person who submits an affidavit that includes a statement of
all assets the person possesses and that the person is unable
to pay such fees.
When a district court receives an application for leave to
proceed in forma pauperis, it should examine the papers and
determine if the requirements of [28 U.S.C.] § 1915(a)
are satisfied. If they are, leave should be granted.
Thereafter, if the court finds that the allegations of
poverty are untrue or that the action is frivolous or
malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th
Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60
(10th Cir. 1962). “[A]n application to proceed in
forma pauperis should be evaluated in light of the
applicant's present financial status.” Scherer
v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008)
(citing Holmes v. Hardy, 852 F.2d 151, 153 (5th
Cir.1988)). “The statute [allowing a litigant to
proceed in forma pauperis ] was intended for the
benefit of those too poor to pay or give security for
costs....” Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 344 (1948). While a litigant need not
be “absolutely destitute, ” “an affidavit
is sufficient which states that one cannot because of his
poverty pay or give security for the costs and still be able
to provide himself and dependents with the necessities of
life.” Id. at 339.
Court will grant Plaintiff's Application to Proceed in
District Court Without Prepaying Fees or Costs. Plaintiff
signed an affidavit declaring that he is unable to pay the
costs of these proceedings and that the following information
is true: (i) his average monthly income during the past 12
months was $2, 000.00; (ii) his and his spouse's combined
monthly income expected next month is $300.00; (iii) his and
his spouse's combined monthly expenses are $1, 380.00;
(iv) he has $207.00 in bank accounts; and (v) his only assets
are two vehicles with a combined value of $4, 000.00. Because
his monthly expenses exceed his expected monthly income, the
Court finds that Plaintiff is unable to prepay the fees to
initiate this action.
filed his Complaint using the form “Complaint for a
Civil Case Alleging Breach of Contract (28 U.S.C. §
1332; Diversity of Citizenship).” Plaintiff, who
resides in New Mexico, alleges that Defendant Black, who
resides in California, is Plaintiff's landlord and that
Defendant Black breached the lease agreement and failed to
disclose that the leased property contains lead-based paint.
Defendants Jeremy R. Jones, Brian Parrish and Sommer, Udall,
Sutin, Hardwick and Hyatt, P.A. (“Sommer Law
Firm”), who represent Defendant Black in his attempt to
terminate the lease, reside in New Mexico. Plaintiff alleges
Defendant Black breached the lease agreement because he: (i)
failed to provide disclosures required under federal law;
(ii) did not provide for the upkeep of the property; (iii)
did not make need repairs; (iv) did not adjust the rent to
the market value; and (v) failed to give Plaintiff notice of
changes to the lease agreement.
Court does not have diversity jurisdiction over this action.
In order to invoke diversity jurisdiction, “a party
must show that complete diversity of citizenship exists
between the adverse parties and that the amount in
controversy exceeds $75, 000. Complete diversity is lacking
when any of the plaintiffs has the same residency as even a
single defendant.” Dutcher v. Matheson, 733
F.3d 980, 987 (10th Cir. 2013). There is not complete
diversity n this case because Plaintiff and Defendants Jones,
Parrish and Sommer Law Firm are residents of New Mexico.
Court also does not have federal question jurisdiction
because the only claim is breach of contract; there are no
allegations that this action arises under the Constitution or
laws of the United States. See 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction
of all actions arising under the Constitution, laws, or
treaties of the United States”). “A case
‘arises under' federal law under two circumstances:
‘a well-pleaded complaint establishes either that
federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on
resolution of a substantial question of federal law.'
” Gilmore v. Weatherford, 694 F.3d 1160, 1170
(10th Cir.2012) (quoting Empire Healthchoice Assurance,
Inc. v. McVeigh, 547 U.S. 677, 690, 126 S.Ct. 2121, 165
L.Ed.2d 131 (2006)). Although Plaintiff alleges that
Defendant Black breached the contract in part because Black
“failed to provide disclosures required under federal
law, ” and calculates a portion of his damages based on
“the EPA's 1984 policy on civil penalties, ”
federal law does not create the breach of contract cause of
action and resolution of the breach of contract claim will
not depend on resolution of a substantial question of federal
law. Complaint at 4.
Court will dismiss the Complaint without prejudice for lack
of jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action”). Plaintiff may file an amended complaint
within 21 days of entry of this Order. Failure to timely file
an amended complaint may result in dismissal of this case
1915 provides that the “officers of the court shall
issue and serve all process, and perform all duties in
[proceedings in forma pauperis]”). 28 U.S.C.
§ 1915(d). Rule 4 provides that:
At the plaintiff's request, the court may order that
service be made by a United States marshal or deputy marshal
or by a person specially appointed by the court. The court
must so order if the plaintiff is authorized to proceed in
forma pauperis under 28 U.S.C. § 1915 or as a seaman
under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
Court will not order service of Summons and Complaint on
Defendants at this time. The Court will order service if
Plaintiff timely files an amended complaint which includes a
short and plaint statement of the grounds for the Court's
ORDERED that Plaintiffs Application to Proceed in District
Court Without Prepaying Fees or Costs, Doc. 3, filed November
14, 2016, is GRANTED.
ALSO ORDERED that Plaintiffs Complaint for a Civil Case
Alleging Breach of Contract (28 U.S.C. § 1332; Diversity
of Citizenship), Doc. 1, filed November 14, 2016, is
DISMISSED without prejudice. Plaintiff may file an amended
complaint within 21 days of entry of this Order.