Stoller v. Bank of New York Mellon Trust Company et al

Filing 27

ORDER denying 21 Plaintiff's Motion for Leave to Appeal in forma pauperis; denying 22 Plaintiff's Motion to Stay pending appeal. The docket shall reflect that the Court certifies, pursuant to 28:1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that Plaintiff's interlocutory appeals 15 and 20 , are not taken in good faith. Signed by Judge G Murray Snow on 8/10/11.(TLJ)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Bank of New York Mellon Trust)
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Company, et al.,
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Defendants.
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Christopher Stoller,

No. CV 11-01105-GMS-JRI
ORDER

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Plaintiff Christopher Stoller, who is confined in the Lake County Adult Corrections

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Facility, in Waukegan, Illinois, filed a pro se Complaint asserting fraud claims and violations

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of his constitutional rights under 42 U.S.C. § 1983 with a pro se motion to proceed in forma

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pauperis, which was not on this District’s court-approved form. (Doc. 1.) In an Order filed

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on July 25, 2011, this Court denied Plaintiff’s in forma pauperis motion with leave to file a

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new in forma pauperis application within 30 days using this District’s required form. (Doc.

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9.) On August 3, 2011, Plaintiff filed a motion for injunctive relief, a notice of interlocutory

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appeal concerning the denial of his in forma pauperis motion, and a motion for leave to

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appeal in forma pauperis. (Doc. 10, 11, 12.) The Court denied Plaintiff’s motion for leave

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to proceed in forma pauperis on appeal as not taken in good faith. (Doc. 16.) By separate

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order, the Court also denied Plaintiff’s motion for injunctive relief. (Doc. 17.)

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Plaintiff has filed a second interlocutory appeal concerning the denial of injunctive

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relief. (Doc. 20.) He has also filed a motion for leave to proceed in forma pauperis in that

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appeal and a motion for stay pending appeal. (Doc. 21, 22.) Both of those motions will be

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denied and the Court will certify that his interlocutory appeals are not taken in good faith.

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I.

Plaintiff’s Motion to Appeal In Forma Pauperis

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Plaintiff asks the Court to grant him in forma pauperis status on his second

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interlocutory appeal. (Doc. 20.) Rule 24(a)(1) of the Federal Rules of Appellate Procedure

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requires a party who desires to proceed in forma pauperis on appeal to file a motion in the

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district court which includes an affidavit that: “(A) shows in the detail prescribed by Form

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4 of the Appendix of Forms the party’s inability to pay or to give security for fees and costs;

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(B) claims an entitlement to redress; and (C) states the issues that the party intends to present

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on appeal.” Fed. R. App. P. 24(a)(1). The Court will deny Plaintiff’s second motion to

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proceed in forma pauperis on appeal because he has not fully complied with Rule 24(a)(1)

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of the Federal Rules of Appellate Procedure and because the Court finds that this

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interlocutory appeal is not taken in good faith. Pursuant to Federal Rule of Appellate

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Procedure 24(a)(4), the Court will direct the Clerk of Court to immediately notify Plaintiff

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and the Ninth Circuit Court of Appeals of this denial.

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II.

Motion for Stay

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Plaintiff also seeks a stay of these proceedings pending his interlocutory appeals on

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the basis that this Court is divested of jurisdiction. As relevant here, the federal courts of

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appeal have jurisdiction over appeals from interlocutory orders denying injunctive relief. 28

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U.S.C. § 1292(a)(1). This Court’s denial of Plaintiff’s motion for injunctive relief was an

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order immediately appealable. See id. The Court is, therefore, divested of jurisdiction as to

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that order and Plaintiff’s motion for stay is moot to that extent.

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Plaintiff also filed an interlocutory appeal from the denial of his motion to proceed in
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forma pauperis. An order otherwise not appealable “shall not stay proceedings in the district

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court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28

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U.S.C. § 1292(b). Thus, absent a stay, an appeal seeking review of collateral orders does not

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deprive a court of jurisdiction over other proceedings in the case and an interlocutory order

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does not ordinarily deprive a district court of jurisdiction except as to the matters that are the

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subject of the appeal. Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990).

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Thus, “‘where an appeal is taken from a judgment which does not finally determine the entire

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action, the appeal does not prevent the district court from proceeding with matters not

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involved in the appeal.’” Long Beach Area Chamber of Commerce v. City of Long Beach,

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603 F.3d 684, 691 (9th Cir. 2010) (quoting Britton, 916 F.2d at 1411); see Ruby v. Sec’y of

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the Navy, 365 F.2d 385, 388 (9th Cir. 1965); see also Montes v. United States, 37 F.3d 1347,

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1350 (9th Cir. 1994) (dismissal of complaint with leave to amend is not final appealable

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order).

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This Court’s denial of Plaintiff’s motion to proceed in forma pauperis – with leave

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to file a new in forma pauperis application using this District’s approved form – was an

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“order not otherwise appealable.” 28 U.S.C. § 1292(b) (emphasis added). Thus, Plaintiff’s

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interlocutory appeal of that order does not operate as a stay of proceedings. Plaintiff has

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articulated no basis for staying this action as to matters unrelated to his motion for injunctive

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relief. Because his motion for stay is moot as to his interlocutory appeal of the denial of his

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motion for injunctive relief and he fails to articulate a basis for a stay as to other proceedings

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in this case, Plaintiff’s motion for stay will be denied.

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III.

Warnings

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A.

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

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in dismissal of this action.

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Release

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B.

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

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C.

Copies

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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to Plaintiff.

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IT IS ORDERED:

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(1)

Plaintiff’s motion for leave to appeal in forma pauperis is denied. (Doc. 21.)

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(2)

Plaintiff’s motion for stay pending appeal is denied. (Doc. 22.)

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(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that Plaintiff’s

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interlocutory appeals, doc. 15 and 20, are not taken in good faith.

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DATED this 10th day of August, 2011.

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