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Flagstar Bank, F.S.B. v. Pinnex

United States District Court, D. South Carolina

June 21, 2016

Flagstar Bank, F.S.B., Plaintiff,
v.
Ruby Elaine Pinnex and Mortgage Electronic Registration Systems, Inc., as nominee for Homecomings Financial Network, Inc., Defendants.

          Flagstar Bank, FSB, Plaintiff, represented by Andrew Augustyn Powell, Rogers Townsend and Thomas, Angelia Jacquline Grant, Scott Law Firm, Brian Montgomery Barnwell, Nelson Mullins Riley and Scarborough, Jeremy Cook Hodges, Nelson Mullins Riley and Scarborough, Reginald P. Corley, Rogers Townsend and Thomas, Ronald Charles Scott, Scott Law Firm, Vance Lyn Brabham, III, Scott and Corley & William Stapleton Koehler, Weston Adams Law Firm.

          Ruby Elaine Pinnex, Defendant, Pro Se.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, Magistrate Judge.

         Ruby Elaine Pinnex ("Pinnex"), proceeding pro se, filed a notice of removal that purports to remove a mortgage foreclosure action filed in the Court of Common Pleas in Calhoun County, South Carolina, Case No. 2015-CP-09-00126. [ECF Nos. 1 at 1; 1-1]. All pretrial proceedings in this matter were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the reasons that follow, the undersigned recommends that the district judge deny Pinnex's motion to proceed in forma pauperis [ECF No. 3]. However, even if Pinnex were to pay the filing fee, the undersigned recommends this matter be remanded for lack of subject matter jurisdiction.

         I. Factual and Procedural Background

         Pinnex purports to remove a mortgage foreclosure action associated with property located at 204 Baronet Lane, Elloree, SC, 29047. [ECF No. 1-1 at 32-38]. Pinnex alleges she is removing the action "for Lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12b(1)" and argues the "[d]efense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal." [ECF No. 1 at 1].

         II. Discussion

         A. Motion to proceed in forma pauperis

         Grants or denials of applications to proceed in forma pauperis are left to the discretion of federal district courts. See Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980). There is no clear precedent in the Fourth Circuit concerning a magistrate judge's authority to issue an order denying an application to proceed in forma pauperis.[1] The Sixth Circuit has concluded that a magistrate judge cannot issue an order to deny an application to proceed in forma pauperis. Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990). Specifically, the Woods court ruled a denial of an application to proceed in forma pauperis by a magistrate judge is the functional equivalent of an involuntary dismissal, which cannot be granted by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A). Id. at 187. The Tenth and Fifth Circuits have reached similar conclusions. See Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005); Donaldson v. Ducote, 373 F.3d 622, 623-25 (5th Cir. 2004). Therefore, the undersigned submits a report and recommendation to preserve Plaintiff's opportunity to obtain de novo review by the district judge on objections.

         A litigant is not required to show he or she is completely destitute in order to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948). However, the "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who... would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). In Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D. Tex. 1976), the court enunciated three legal tests used to determine whether a person should proceed in forma pauperis under 28 U.S.C. § 1915:

(1) Is the litigant barred from the federal courts by the reason of his or her "impecunity"?
(2) Is his or her access to the courts blocked by the imposition of an undue hardship?
(3) Is the litigant forced to contribute his or her last dollar, or render himself or herself destitute, to prosecute his or her claim?

Id. at 943; see also Murray v. Gossett, C/A No. 3:13-2552-CMC-SVH, 2013 WL 5670907, at *2 (D.S.C. Oct. 17, 2013) (adopting and incorporating Report ...


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