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VARGAS v. BOYETTE CREEK HOMEOWNERS ASSOCIATION, INC., 8:11-cv-1822-T-30AEP. (2012)

Court: District Court, M.D. Florida Number: infdco20120718789 Visitors: 4
Filed: Jun. 29, 2012
Latest Update: Jun. 29, 2012
Summary: REPORT & RECOMMENDATION ANTHONY E. PORCELLI, Magistrate Judge. This matter comes before the Court upon Plaintiff's Motion for Leave to Appeal In Forma Pauperis (Dkt. No. 29). Plaintiff filed a Complaint asserting multiple violations related to the Fair Debt Collection Practices Act, 15 U.S.C. 1692, et. seq., against various Defendants. (Dkt. No. 1.) In February 2012, Defendants filed Motions to Dismiss (Dkt. Nos. 15, 17). On April 19, 2012, the Court entered an order granting the Defendan
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REPORT & RECOMMENDATION

ANTHONY E. PORCELLI, Magistrate Judge.

This matter comes before the Court upon Plaintiff's Motion for Leave to Appeal In Forma Pauperis (Dkt. No. 29). Plaintiff filed a Complaint asserting multiple violations related to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq., against various Defendants. (Dkt. No. 1.) In February 2012, Defendants filed Motions to Dismiss (Dkt. Nos. 15, 17). On April 19, 2012, the Court entered an order granting the Defendants' Motions to Dismiss, and dismissed the Plaintiff's Complaint without prejudice and granted leave to file an amended complaint within fourteen days of the Court's Order. (Dkt. No. 24.) On April 30, 2012, the Plaintiff requested an extension of time to file an amended complaint (Dkt. No. 25), which the Court granted and directed that the amended complaint be filed no later than May 14, 2012. (Dkt. No. 26.) However, the Plaintiff simply did nothing, and failed to file an amended complaint or any other pleading before the May 14, 2012 deadline. As such, on May 16, 2012, the Court dismissed this case without prejudice. (Dkt. No. 27.) Plaintiff now seeks to appeal in forma pauperis the Court's Orders at Dkt. Nos. 24 and 27.

Pursuant to Federal Rule of Appellate Procedure 24(a), a party in a district-court action seeking to appeal in forma pauperis must file a motion and attach an affidavit that shows the party's inability to pay or to give security for fees and costs, claims an entitlement to redress, and states the issues that the party intends to present on appeal. Fed. R. App. P. 24(a)(1)(A)-(C). Where a party was permitted to proceed in forma pauperis in the district-court action, the party may proceed on appeal in forma pauperis without further authorization unless the district court certifies the appeal is not taken in good faith or finds the party is not otherwise entitled to proceed in forma pauperis. Fed. R. App. P. 24(a)(3)(A). Further, a court may dismiss a case at any time if it determines the action or appeal is frivolous or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(I)-(ii). "[A]n IFP action is frivolous, and thus not brought in good faith, if it is `without arguable merit either in law or fact.'" Ghee v. Retailers Nat'l Bank, 271 Fed. App'x 858, 859-60 (11th Cir. 2008) (per curiam) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)). In this context, "good faith" is judged by an objective standard and shown when a plaintiff seeks appellate review of any issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).

As the procedural history of this action makes plain, it was Plaintiff's failure to timely comply with the Court's Order that resulted in the dismissal of this case. Further, this matter was dismissed without any prejudice to the Plaintiff. Thus, the undersigned finds that any appeal in this matter is frivolous.

Accordingly, it is hereby RECOMMENDED that:

1. Plaintiff's Motion for Leave to Appeal In Forma Pauperis (Dkt. No. 29) be DENIED. 2. The Court certify that Plaintiff's appeal is not taken in good faith. 3. The Clerk notify the Eleventh Circuit that the motion to proceed in forma pauperis is denied and that the appeal is not taken in good faith in accordance with Federal Rule of Appellate Procedure 24(a)(4).

IT IS SO REPORTED.

Source:  Leagle

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