Filed: Jun. 25, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 6-25-2009 In Re: Mac Truong Precedential or Non-Precedential: Non-Precedential Docket No. 08-3364 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "In Re: Mac Truong " (2009). 2009 Decisions. Paper 1131. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1131 This decision is brought to you for free and open access by the Opinions of the Un
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 6-25-2009 In Re: Mac Truong Precedential or Non-Precedential: Non-Precedential Docket No. 08-3364 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "In Re: Mac Truong " (2009). 2009 Decisions. Paper 1131. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1131 This decision is brought to you for free and open access by the Opinions of the Uni..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-25-2009
In Re: Mac Truong
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3364
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"In Re: Mac Truong " (2009). 2009 Decisions. Paper 1131.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1131
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BLD-213 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3364
___________
IN RE: MARYSE MACTRUONG and MAC TRUONG,
Debtors
Mac Truong,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-05066)
District Judge: Honorable Susan D. Wigenton
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 11, 2009
Before: MCKEE, FISHER and CHAGARES , Circuit Judges
(Opinion filed: June 25, 2009)
_________
OPINION
_________
PER CURIAM
Mac Truong appeals from an order of the District Court denying his motion to
reconsider the District Court’s prior order denying his motions to reopen his appeal, for
reconsideration, and to lift a filing injunction. For the reasons that follow, we will
dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
I.
In March 2007, Truong and his wife, through their company To-Viet-Dao LLP,
filed for Chapter 13 bankruptcy protection.1 A United States Bankruptcy Court
(“USBC”) sitting in New York denied the petition with prejudice and imposed a one-year
bar to Truong’s filing future petitions. Despite the injunction, Truong filed an individual
Chapter 13 petition in July 2007. The USBC again denied the petition, and reaffirmed the
one-year filing injunction. In August 2007, Truong filed a motion in the USBC seeking a
hearing on various claims against the trustee of his bankruptcy estate. The USBC denied
the motion, calling the claims raised therein duplicative of those denied in Truong’s
previous bankruptcy proceedings. Truong appealed to the District Court and moved for
in forma pauperis (“IFP”) status. The USBC denied the motion.
Truong renewed his IFP application in the District Court.2 After entering an order
denying his motion, the District Court vacated its order “because no fee is associated with
this Bankruptcy appeal before the Court.” The District Court then dismissed Truong’s
appeal without prejudice because the Bankruptcy Court had not granted IFP status and
Truong had not paid the filing fees. The District Court denied Truong’s subsequent
1
The Chapter 13 case was eventually converted to a Chapter 11 case.
2
Meanwhile, the USBC entered an order imposing an indefinite filing injunction
against Truong, his wife, and “any entity acting on their behalf,” finding that “the Debtors
have engaged in duplicative and vexatious litigation, and that they are likely to persist in
such conduct.”
2
motions to reopen his case and his motion to disqualify both his bankruptcy trustee and
the trustee’s attorneys based on alleged conflicts of interest.3
Shortly thereafter, the District Court, noting that Truong had failed to comply with
the USBC’s filing injunction, imposed its own filing injunction. Truong then filed a
motion requesting several forms of relief: 1) reconsideration of the District Court’s order
denying his motions to reopen and to disqualify the trustee; 2) an explanation as to why
the District Court’s order allegedly granting IFP status is not valid; and 3) vacatur of the
District Court’s filing injunction. The District Court denied the motion, stating that
Truong “has not been granted in forma pauperis status by the Bankruptcy Court, has not
paid the filing fee in this matter and has not raised any new issues.” Truong appealed
from that order.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s
denial of Truong’s motion to proceed IFP, dismissal for failure to pay fees and motion for
reconsideration for abuse of discretion. See Max’s Seafood Café ex rel. Lou Ann, Inc. v.
3
Truong has asserted this claim (that there is cause for removal of the trustee under 11
U.S.C. § 324(a) because the trustee is not sufficiently disinterested in the assets of the
bankruptcy estate), in one form/forum or another, countless times throughout the
preceding years. We previously recognized this fact in a published opinion. See In re
Truong, 513 F.3d 91, 92-94, 94 n.4 (3d Cir. 2008). Before this appeal, Truong most
recently attempted to raise this claim in this Court in In re Truong, 285 F. App’x 837 (3d
Cir. July 7, 2008), where we refused to consider Truong’s motions for “removal of the
trustee, injunctive relief from the trustee, and to disqualify the trustee, as they are not
properly before us.”
Id. at 840-41.
3
Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); Jones v. Zimmerman,
752 F.2d 76, 78 (3d
Cir. 1985). Having granted Truong leave to proceed in forma pauperis on appeal, we
must dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) if it is frivolous, i.e., if it
has no arguable basis in law. See Neitzke v. Williams,
490 U.S. 319, 325 (1989).
III.
IFP determinations are to be made solely on the basis of indigence. See Deutsch v.
United States, 67 F.3d 1080, 1084 n.5 (3d Cir. 1995); Roman v. Jeffes,
904 F.2d 192, 194
n.1 (3d Cir. 1990). Nevertheless, “‘extreme circumstances’ might justify denying an
otherwise qualified affiant leave to proceed in forma pauperis.”
Deutsch, 67 F.3d at 1084
n.5. Specifically, the Supreme Court has stated that IFP status should not be given to
individuals who have abused the system. See In re Sindram,
498 U.S. 177, 180 (1991)
(per curiam).
We agree with the District Court that Truong failed to demonstrate an inability to
pay the necessary filing fee. See 28 U.S.C. 1915(a). In the IFP application that Truong
submitted to the District Court, he indicated that he had rental income of $3000 a month,
two cars (though one had its “title in litigation”), “less than $500 average” in a bank
account, and an IRA account worth $8000. Given that information, we conclude that the
District Court did not abuse its discretion when it denied Truong’s motion to proceed IFP,
later dismissed Truong’s appeal, and denied his subsequent motions to reopen and for
4
reconsideration.4
Based on the foregoing, we need not determine whether this case presents the
extreme circumstances justifying denial of IFP status to an otherwise destitute litigant.
However, we note that Truong has consistently spurned court orders. And the bulk of his
voluminous filings appear to be no more than attempts to re-litigate issues already
decided against him as a tactical move to prolong his bankruptcy proceedings seemingly
ad infinitum.5
Accordingly, the appeal is utterly lacking in legal merit and we will dismiss it
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
4
On appeal Truong perpetuates his mistaken belief that he was granted IFP by the
District Court on December 10, 2007. That order merely vacated the District Court’s
denial of Truong’s IFP application; it did not grant IFP status.
5
For these reasons, we do not find an abuse of discretion in the District Court’s
imposition of a filing injunction. See Abdul-Akbar v. Watson, 901 F.2d 329, 331 (3d Cir.
1990) (“[w]e review the issuance of an order barring further filing of litigation for an
abuse of discretion”).
5
