United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE
cause came on for consideration without oral argument on the
MOTION: MOTION TO APPEAL IN FORMA PAUPERIS (Doc. No.
FILED: January 10, 2018
THEREON it is RECOMMENDED
that the motion be DENIED.
December 29, 2017, Alexander Barhatkov, proceeding pro
se, removed a complaint (the “Complaint”)
from Florida state court. Doc. Nos. 1, 2. The Complaint seeks
foreclosure on a mortgage securing real property located in
Seminole County, Florida. Doc. No. 2 at 1, 5. On January 3,
2018, United States District Judge Paul G. Byron remanded the
case to Florida state court because Mr. Barhatkov filed his
notice of removal more than six months after the thirty-day
removal deadline provided in 28 U.S.C. § 1446(b)(1).
Doc. No. 11 at 2.
January 10, 2018, Mr. Barhatkov filed a notice of appeal of
Judge Byron's order. Doc. No. 12. The notice of appeal
states that Plaintiff has violated federal bankruptcy laws,
and Mr. Barhatkov has filed a lawsuit in this Court regarding
the same. Id. at 1 (citing Barhatkov v.
Centerstate Bank of Fla., 6:17-cv-2197-GKS-TBS). Mr.
Barhatkov also states that removal was timely because his
discovery of Plaintiff's violations were made after
consulting with and hiring new counsel. Id.
January 10, 2018, Mr. Barhatkov filed an Application to
Proceed in District Court without Prepaying Fees or Costs
(the “Motion”). Doc. No. 13. The undersigned
interprets the Motion as a motion to appeal in forma
pauperis under 28 U.S.C. § 1915(a)(3).
appeal may not be taken in forma pauperis if the
Court certifies that the appeal is not taken in good faith.
28 U.S.C. § 1915(a)(3). “Whether an appeal is
taken in good faith is a matter within the discretion of the
trial court.” Busch v. Cty. of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999) (citing Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 69 S.Ct. 85,
93 L.Ed. 43 (1948)). “Good faith” within the
meaning of Section 1915 must be judged by an objective
standard. Id. A party seeking to appeal in forma
pauperis fails to demonstrate good faith when he seeks
to advance a frivolous appeal. Id. (citing
authority). “In deciding whether an in forma
pauperis appeal is frivolous under § 1915(e), the
district court determines whether there is ‘a factual
and legal basis … for the asserted wrong, however
inartfully pleaded.'” Id. (citations
noted above, Mr. Barhatkov seeks to appeal Judge Byron's
order which remanded this case to Florida state court. Doc.
No. 12 at 1-2. Judge Byron's order, however, is not
reviewable. 28 U.S.C. § 1447(d) provides:
(d) An order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise,
except that an order remanding a case to the State court from
which it was removed pursuant to section 1442 or 1443 of ...