Case5:10-cv-03865-JF Document8 Filed09/17/10 Page1 of 4

1 ** E-filed September 17, 2010 **

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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10 SAN JOSE DIVISION
United States District Court

11 TSVETEN S. TORBOV, No. C10-03865 HRL

For the Northern District of California

12 Plaintiff, ORDER THAT CASE BE

REASSIGNED TO A DISTRICT
13 v. COURT JUDGE
14 ANE MURPHY, REPORT AND RECOMMENDATION
15 Defendant. [Re: Docket Nos. 1 & 2]
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17 On August 27, 2010, Plaintiff Tsveten Torbov (“Torbov”) filed a notice of removal
18 requesting the “removal of the State of California Court of Appeals (Sixth Appellate) Case no.
19 H033029.” (Docket No. 1 (“Notice of Removal”) at 1.) Torbov’s Notice of Removal contains no
20 other information about the case. He also filed an application for leave to proceed in forma pauperis
21 (“IFP”). (Docket No. 2.)
22 A court may authorize the commencement of a civil action IFP if the court is satisfied that
23 the would-be litigant cannot pay the filing fees necessary to pursue the action. 28 U.S.C §
24 1915(a)(1). In evaluating such an application, the court should “gran[t] or den[y] IFP status based
25 on the [litigant’s] financial resources alone and then independently determin[e] whether to dismiss
26 the complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5
27 (9th Cir. 1984). Although Torbov filed a “Prisoner’s Application to Proceed In Forma Pauperis,”
28 (despite there being no indication that Torbov is currently incarcerated), his application nevertheless
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1 indicates that his assets and income are insufficient to enable him to pay the filing fee. Accordingly,
2 his application to proceed without the payment of the filing fee should be granted.
3 However, the court’s grant of his IFP application does not mean that Torbov may continue
4 with this action here. A court may dismiss a case filed without the payment of the filing fee
5 whenever it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on
6 which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from
7 such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Additionally, if the court determines at any time that
8 it lacks subject matter jurisdiction, it must dismiss the action. FED. R. CIV. P. 12(h)(3).
9 Removal to federal court is proper where the federal court would have original subject
10 matter jurisdiction over the complaint. 28 U.S.C. § 1441. Under the Rooker-Feldman doctrine,
United States District Court

11 federal district courts lack jurisdiction to review the final determinations of a state court in judicial
For the Northern District of California

12 proceedings. Doe & Associates Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001)
13 (citations omitted). Such a review may only be done by the United States Supreme Court. 28
14 U.S.C. § 1257.
15 Here, Torbov seeks federal review of the final determination of a state appellate court. This
16 case involves a family law dissolution action that was filed in Santa Clara County Superior Court in
17 2002. See In re Marriage of Tsvetan Steven Ivanov Torbov and Katerina A. Shikoff-Torbov, No. 1-
18 02-FL-110620, Superior Court of California, Santa Clara County (filed Dec. 9, 2002). As a part of
19 that case, the Superior Court issued an order granting attorney’s fees to Ana Murphy, counsel for
20 Torbov’s minor children. Torbov appealed the Superior Court’s decision. See Torbov v. Shikoff-
21 Torbov, No. H33029 (California Court of Appeals, Sixth District (filed June 12, 2008). After the
22 appellate court affirmed the Superior Court’s order, Torbov removed his appeal to federal court.
23 But since Torbov’s appeal was finally decided, this court lacks subject-matter jurisdiction.
24 Because all parties have not yet consented to the undersigned’s jurisdiction, this court
25 ORDERS the Clerk of the Court to reassign this case to a district court judge. The undersigned
26 further RECOMMENDS that the newly-assigned district court judge dismiss this action for lack of
27 subject-matter jurisdiction. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve
28 and file objections to this Report and Recommendation within fourteen days after being served.

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1 IT IS SO ORDERED.
2 Dated: September 17, 2010
3 HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
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United States District Court

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For the Northern District of California

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1 C10-03865 HRL Notice will be electronically mailed to:

2 Carlos Gregory Martinez cmartin@isonlaw.com
3 Notice will be provided by other means to:
4 Bernard Nathan Wolf
Attorney at Law
5 225 Bush Street
Suite 1439
6 San Francisco, CA 94104
7 Tsveten S. Torbov
1679 Valley Crest Court
8 San Jose, CA 95131
9 Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.
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United States District Court

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For the Northern District of California

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