Opinion
No. 03 C 8979
December 29, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Willie Pearl Parker filed suit in the Circuit Court of Cook County, Illinois, against defendants Jerome and George Butler, to quiet title to property to which both plaintiff and defendants claim ownership. Defendants thereafter filed a countersuit alleging federal mail fraud. Following a trial, Judge Billik granted plaintiff an equitable lien against the disputed property. He also ordered that plaintiffs second count for damages and defendants' countersuit be transferred to the Circuit Court's Law Division for further proceedings. The Butlers now move to remove this case to federal court. Along with their notice of removal, they have filed a petition to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 1915(a) we may authorize a party to proceed in forma pauperis if an inability to pay the required costs and fees is demonstrated. Though both Jerome and George Butler are counter — plaintiffs and both filed the notice of removal, only Jerome Butler filed a financial affidavit in support of their in forma pauperis application. Jerome Butler states that he was last employed in November 2002 and that his only asset is a residential building valued at $167,000, which property is the subject of foreclosure litigation — presumably the property at the center of the parties' dispute. While this affidavit evidences Jerome's financial need it does not address George Butler's financial status. Based on the filings we do not know whether George is dependent on Jerome or if he has resources of his own.
Even if George Butler had filed an affidavit attesting to his financial need, the Butlers' petition would still fail. As part of the initial review of a petition to proceed in forma pauperis, we analyze the claims and dismiss the complaint if we determine that the action is frivolous or malicious, or it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(c)(2)(B)(i) — (iii);Alston v. Debruyn. 13 F.3d 1036, 1039 (7th Cir. 1994). The Butlers' notice of removal does not provide enough information for the court to determine whether their motion is frivolous or whether they have a federal claim for which relief may be granted. To carry their burden on a notice of removal, the Butlers must establish the court's jurisdiction over their claims. Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir. 1993). They have not attached a copy of the counter — complaint they filed in state court nor have they explained the basis for their alleged federal claim(s). They provide no basis for jurisdiction beyond their bare assertion that plaintiff has violated federal mail fraud statutes. Thus, the Butlers' petition to proceed in forma pauperis is denied both because George Butler did not file a financial affidavit and because their notice to remove fails to sufficiently allege the basis for their federal claim(s).
The Butlers' petition to proceed in forma pauperis is denied.