United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITES STATES MAGISTRATE JUDGE
cause comes before the Court for consideration without oral
argument on the following motion:
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS (Doc. 25)
April 28, 2017
it is RECOMMENDED that the motion be DENIED.
January 5, 2017, Defendant Ivan Uribe (Uribe), proceeding pro
se, Filed a Notice of Removal to this Court, seeking
to remove a foreclosure action filed in the Ninth Circuit
Court in and for Orange County, Florida. Doc. 1. In filing
the Notice of Removal, Uribe paid the appropriate filing fee.
Id. The action removed was originally filed in state
court on April 9, 2012, (Doc. 2) and, according to counsel
for Plaintiff, the Notice of Removal was filed one day before
the state court trial in this matter was set to begin. Doc.
10 at 1.
removal, Plaintiff had not filed any of the documents
required by this Court and, as such, the Court entered an
Order to Show Cause (Doc. 8) directed to Plaintiff. Shortly
thereafter, Plaintiff filed an objection to the removal,
explained that Plaintiff did not receive notice of the
removal from the Uribe, and requested remand. Doc. 10.
February 9, 2017, the Court entered an Order (Doc. 11) in
which it stated that it construed Plaintiffs objection as a
motion to remand, and directed any Defendant (including
Uribe) to file a response thereto within fourteen days of the
date of that Order. Neither Uribe, nor any other Defendant
filed a response to the motion to remand.
February 15, 2017, Plaintiff filed a response to the Order to
Show Cause, wherein Plaintiff reiterated that it had not
received from Uribe appropriate notice of the removal, and
urged the Court to remand this action because the Court
lacked subject matter jurisdiction and, even if the Court had
subject matter jurisdiction, because removal was defective.
March 18, 2017, the Court remanded this case. Doc. 22.
April 7, 2017, Uribe file a "Notice of Appeal" in
which he stated that he appealed an order of a bankruptcy
judge under 28 U.S.C. § 158(a) and (b) and specifically
identified the Order of Remand (Doc. 22). Doc. 23. The Notice
of Appeal contained no additional information concerning the
basis of the appeal. Id. On April 28, 2017, Uribe
filed an "Affidavit Accompanying Motion for Permission
to Appeal In Forma Pauperis, " (the Motion) in which he
set forth his assets and liabilities. Doc. 25.
appeal may not be taken in forma pauperis if the
trial court certified in writing that it is not taken in good
faith." 28 U.S.C. § 1915(a)(3) (italics added);
see also Fed. R. App. P. 24(a)(3). Whether an appeal
is taken in good faith is a matter within the discretion of
the trial court. See Busch v. Cty. of Volusia, 189
F.R.D. 687, 692 (M.D. Fla. 1999) (citing Adkins v. E.I.
DuPont de Nemours & Co.,335 U.S. 331 (1948)). Good
faith in this context must be judged by an objective
standard. Busch, 189 F.R.D. at 691. A party does not
proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States,369 U.S. 438, 445 (1962). A claim or argument is frivolous
when it appears the factual allegations are clearly baseless
or the legal theories are indisputably meritless. See
Neitzke v. Williams,490 U.S. 319, 327 (1989);
Carroll v. Gross,984 F.2d 392, 393 (11th Cir.
1993). Or, stated another way, an in forma pauperis
action is frivolous and, thus, not brought in good faith, ...