THOMAS B. McCOUN, III, Magistrate Judge.
THIS MATTER is before the Court on
Rule 24 of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1915 govern the determination of applications to proceed in forma pauperis on appeal. See Ex parte Chayoon, 2007 WL 1099088, No. 6:06-cv-1812-Orl-19JGG (M.D. Fla. Apr. 10, 2007). Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides:
Fed. R. App. P. 24(a)(1).
Similarly, § 1915 provides, in pertinent part:
28 U.S.C. § 1915(a)(1), (3).
The statute provides further that the court must dismiss a case at any time if it determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious. Id. at (e)(2)(A), (B). Thus, two requirements must be satisfied for a party to prosecute an appeal in forma pauperis: (1) the party must show an inability to pay, and (2) the appeal must be brought in good faith.
Plaintiff Helen Ferguson instituted this action on December 21, 2016. (Doc. 1). Initially, her request to proceed in forma pauperis was deferred, pending the filing of an Amended Complaint. (Doc. 6). On January 9, 2017, this Court granted Plaintiff leave to proceed in forma pauperis in the District Court upon consideration of her Amended Complaint. (Doc. 9). A summons to Defendant was issued and provided to the U.S. Marshal for service on January 20, 2017. (Doc. 12).
Beginning in March 2017, Ms. Ferguson began requesting that the Clerk enter default and/or default judgment against Defendant. On six separate occasions, Ms. Ferguson moved for default and/or default judgment. (See Docs. 14, 23, 25, 31, 33, 48). Each request was denied. (Docs. 15, 24, 26, 32, 41, 48).
On March 17, 2017, Defendant filed a Waiver of the Service of Summons, signed by Defendant's counsel. (Doc. 21). Therein, counsel indicated his understanding that Defendant must serve a response to the Amended Complaint within sixty (60) days from February 27, 2017. Id.
On May 9, 2017, this Court held a hearing on the matter of Ms. Ferguson's request for default and default judgment. At that hearing, the Court explained that default judgment and the payment of expenses were inappropriate, given that Defendant had filed a Waiver of the Service of Summons and an Answer and Affirmative Defenses. The undersigned entered an Order following the hearing. (Doc. 41).
On August 28, 2017, Plaintiff filed a Notice of Appeal, stating, "the reason for [her] appeal is a Judgement Default should have been entered against former employer, Defendant Gettel Acura, a relief awarded to Plaintiff and case should be closed." (Doc. 62). She now seeks to proceed on appeal in forma pauperis.
While Plaintiff's Motion and Affidavit evidences an inability to pay the filing fee on appeal, the motion should nonetheless be denied.
As an initial matter, Plaintiff's Notice of Appeal does not "designate the judgment, order, or part thereof being appealed" in accordance with Rule 3 of the Federal Rules of Appellate Procedure. See Fed. R. App. P. 3(c). Rather, it appears Plaintiff is seeking generally to appeal the Order(s) denying her default and/or default judgment and generally objecting to the way the District Court has handled her case. (See Doc. 62 at ¶ 24).
In addition, the Notice of Appeal appears untimely. The most recent Order as to her request for default judgment was entered was on July 3, 2017. (Doc. 51). The Defendant's Notice of Appeal was not filed until August 28, 2017. See Fed. R. of App. P. 4(a)(1)(A) ("In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from").
Moreover, by my consideration, the Court of Appeals lacks jurisdiction to hear the instant appeal. The Order(s) Ms. Ferguson seeks to appeal is not a final, appealable order. See 28 U.S.C. § 1291; see also Wright & Miller, 15A Fed. Prac. & Proc. Juris. § 3914.5 (2d ed.) ("Refusal to enter a default simply sets the stage for continued trial court proceedings and plainly is not final. . . . Denial of default judgment similarly is not final, for the same reasons."). Nor is it an appealable interlocutory or collateral order, nor has she obtained a certification from the district court as to the legal significance of the rulings he has appealed, as provided in 28 U.S.C. § 1292. See Scinto v. Preston, 231 F. App'x 250 (4th Cir. 2007) (where plaintiff appealed denial of motion for default judgment, court dismissed appeal for lack of jurisdiction because order from which appeal was taken was neither a final order nor an appealable interlocutory or collateral order); Muhammad v. Dale, No. 06-0315WS-B, 2008 WL 4531767, at *2 (S.D. Ala. Oct. 9, 2008).
Even if the merits of Ms. Ferguson's appeal were to be reached, construed liberally,
For the foregoing reasons, it is
It is
Failure to file written objections to this Report and Recommendation within fourteen (14) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United States District Judge. 28 U.S.C. § 636(b)(1)(B); M.D.Fla. R. 6.02.
The docket does not otherwise reflect formal service of process upon Defendant.