Free Memorandum and Order - District Court of Delaware - Delaware

Case 1 :04-cv-01555-KAJ Document 6 Filed 05/06/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SPRING & ASSOCIATES, INC., )
MYRTLE A. THOMAS, THOMAS E. )
HENSON, JR., ESQ., JOYCE M. )
COLLINS, and THE STATE OF )
DELAWARE ET AL., )
)
Plaintiffs, )
)
v. ) Civil Action No. 04-1555-KAJ
)
BISHOP JAMES R. JOHNSON, and )
BISHOP TERRANCE LAMONT )
JOHNSON, )
)
Defendants. )
MEMORANDUM ORDER
James R. Johnson and Terrance L. Johnson (collectively “Defendants") appear IQ Q.
On December 27, 2004, the Defendants filed a Notice of Removal pursuant to 28 U.S.C. §
1441(b). However, only James R. Johnson has tiled a motion to proceed Q forma pauperis.
I. PAUPER DETERMINATION
The Court reviews James R. Jo1u1son’s request to proceed Q forma pauperis pursuant to
28 U.S.C. § 1915 to determine whether he is eligible for pauper status. Section 1915 also
requires the Court to determine whether the action is frivolous, malicious or fails to state a claim
upon which reliefrnay be granted pursuant to 28 U.S.C. § I915(e)(2)(B). Funhemiore, Section
1915(e)(2)(B) authorizes the Court to dismiss an Q forma pauperis complaint at any time, if the

Case 1:04-cv-01555-KAJ Document 6 Filed 05/06/2005 Page 2 of 4
Court finds the complaint is frivolous, malicious or fails to state a claim upon which reliefmay
be granted.
When determining whether James R. Johnson is entitled to Q Qrmg status, the
Court begins by looking at his affidavit requesting such. If he lacks sufficient assets with which
to pay the filing fee, the Court may grant his request. Here, there is a question regarding James
R. Johnson’s income. First, he indicates in his affidavit that he has not worked since September
2004, and that prior to that time, his income was $1,000 per month. He also states that in
November 2004, he received $2,500 from the Apostolic Church oflesus Christ. Finally, he
indicates that he owns five cars worth $25,000.
Based on the information provided, the Court finds that James R. Johnson does have the
financial assets available to pay the $150.00 filing fee. This, however, is not the end ofthe
Court’s review of this matter, In addition to determining that James R. Johnson has the ability to
pay the filing fee, the Court also denies his request to proceed ir; _f pauperis because, as
discussed below, the Court finds that he does not have standing to bring this removal action.
Il. DISCUSSION
A. James R. Johnson Does Not Have Standing to Remove the Underlying Action
Under 28 U.S.C. § 1446, "a defendant or defendants desiring to remove any civil action
or criminal prosecution from a State court shall file in the district court ofthe United States for
the district and division within which such action is pending a notice of removal ." Section
1446 does not allow other non-parties to file a notice ofremoval. 28 U.S.C. § 1446.
It appears that Terrance L. Johnson is being sued in the Superior Court of Sussex County,
along with the Apostolic Church of Jesus Christ of the Apostolic Faith, Inc., and Leisure
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Case 1:04-cv-01555-KAJ Document 6 Filed 05/06/2005 Page 3 of 4
Construction, Inc., for breach of contract. (D.I. 2 at Atch 2) James R. Johnson is not a party to
the underlying civil action. (Q at Atch 1) Consequently, he does not have standing to seek
removal ofthe action.
B. The Notice of Removal is Defective
A defendant desiring to remove a civil action from state court must tile a short and plain
statement of the grounds for removal. 28 U.S.C. § l446(a). This section of the removal statute
also requires that all defendants in an action who may properly join a removal action sign the
notice or consent to the removal. Q; gg Q Prize Frize, Inc. V. Matrix Inc., 167 F.3d 1261,
1266 (9“‘ Cir. 1999)("Where fewer than all the defendants have joined in a removal action, the
removing party has the burden under section 1446(a) to explain affirmatively the absence of any
co-defendants in the notice for removal.")(citing Northern Illinois Gas Co. v. Airco Industrial
Qag, 676 F.2d 270, 273 (7"‘ Cir. 1982)); Lewis v. Rego Company, 757 F.2d 66, (3d Cir.
1985)("Section 1446 has been construed to require that when there is more than one defendant,
all mustjoin in the removal petition.")(internal citation omitted). In this case, neither the
Apostolic Church of Jesus Christ of the Apostolic Faith, Inc., nor Leisure Construction, Inc. have
signed the Notice of Removal. (D.I. 2 at 4.) Terrance L. Johnson has not indicated in the Notice
of Removal that either of the other defendants have consented to the removal action, nor has he
explained their absence from this action. (Id.)
Section 1446(a) also requires that a defendant removing an action to the District Court
include "a copy of all process, pleadings, and orders served upon such defendant..." 28 U.S.C. §
l446(a). Moreover, the defendant must file the Notice of Removal “within thirty days after the
receipt by defendant, through service or otherwise, of a copy of the initial pleading setting forth
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Case 1:04-cv-01555-KAJ Document 6 Filed 05/06/2005 Page 4 of 4
the claim for relief." 28 U.S.C. § l446(b). In this instance, Terrance J. Johnson has not
provided the Court with a copy ofthe original complaint tiled in the Superior Court of Sussex
County. Rather, he has filed a copy of a "motion for summary judgment" and miscellaneous
documents in support of that motion. (D.I. 2.) Consequently, there is no way for the court to
know if Terrance L. Johnson tiled the Notice of Removal within thirty days of his receipt ofthe
complaint.
Thus, Terrance L. Johnson has not properly removed this action from the Superior Court
of State of Delaware in and for Sussex County in accordance with the requirements ot`28 U.S.C.
§ 1446.
NOW THEREFORE, at Wilmington this 6'“ day of May , 2005, IT IS HEREBY
ORDERED that:
James R. Johnson’s Motion to Proceed Ig; Pauperis is DENIED, and ,
The Notice of Removal being defective, the case was not removed from state court and
the action opened here is DISMISSED.
..; _ :· ~ ‘ `’

ire n l‘ DGE
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