Robertson et al v. DLJ Mortgage Capital Incorporated et al
Filing
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ORDER that the Court certifies that this appeal is not taken in good faith. IT IS FURTHER ORDERED that Plaintiffs' Motion for Permission to Appeal InForma Pauperis, doc. 69 , is DENIED. Signed by Magistrate Judge Lawrence O Anderson on 11/13/2012.(KMG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Sherwin Dennis Robertson, et al.,
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Plaintiff,
vs.
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DLJ Mortgage Capital, Inc., et al.,
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Defendants.
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No. CV-12-8033-PCT-LOA
ORDER
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This matter is before the Court on Plaintiffs’ Motion for Permission to Appeal In
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Forma Pauperis. (Doc. 69)
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I. Background
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Plaintiffs filed their Complaint to Quiet Title to Real Property; Judgment Divesting
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Title; Forcible Entry and Detainer on February 22, 2012. (Doc. 1) Plaintiffs paid the filing
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fee at that time. (Id.) The parties agreed to jurisdiction before a magistrate judge on February
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28, 2012. (Docs. 4, 14) After several preliminary matters, the Court granted Defendants’
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Motion to Dismiss Plaintiffs’ pro se Amended Complaint for failure to state a plausible
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claim upon which relief may be granted. (Doc. 66) The Clerk entered judgment on October
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11, 2012. (Doc. 67) On November 5, 2012, Plaintiffs filed a Notice of Appeal of that
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judgment, doc. 68, and the pending Motion for Permission to Appeal In Forma Pauperis,
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doc. 69.
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II. Discussion
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Plaintiffs did not initially seek in forma pauperis status in filing this action; rather,
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they paid the filing fee in full. (Doc. 1) Nonetheless, Rule 24(a)(1), Federal Rules of
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Appellate Procedure (“Fed.R.App.P.”), provides that a party may proceed in forma pauperis
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on appeal if he or she files a motion in district court and attaches an affidavit that:
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(A) shows in the detail prescribed by Form 4 of the Appendix of Forms
the party’s inability to pay or give security for fees or costs;
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(B) claims an entitlement to redress; and
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(C) states the issues that the party intends to present on appeal.
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However, Rule 24(a)(1), Fed.R.App.P., is limited by 28 U.S.C. § 1915(a)(3) of the Prison
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Litigation Reform Act (“PLRA”), applicable to all in forma pauperis appeals, not just those
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filed by prisoners, which provides that “[a]n appeal may not be taken in forma pauperis if
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the trial court certifies in writing that it is not taken in good faith.” See O’Neal v. Price, 531
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F.3d 1146, 1149 (9th Cir. 2008); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en
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banc) (“[S]ection 1915(e) applies to all in forma pauperis complaints, not just those filed by
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prisoners.”).
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The PLRA further provides that “[n]otwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that -- . . . (B)(i) the action or appeal is frivolous or malicious . . . .” 28 U.S.C.
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§ 1915(e)(2)(B)(i); see also Plain Feather v. Preite, 2010 WL 3037530, at *1 (D. Mont.
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Aug. 4, 2010); Magee v. Hatch, 26 F. Supp. 2d 153, 155 (D.D.C. 1998) (“An in forma
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pauperis proceeding is not taken in good faith if it is ‘frivolous or malicious.’”) (quoting 28
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U.S.C. § 1915(e)(2)). The good faith standard is an objective one. Coppedge v. United
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States, 369 U.S. 438, 445 (1962). An appeal is frivolous if it lacks any arguable basis in law
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or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
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1225 (9th Cir. 1984). “Additionally, section 1915(e)(2)’s term ‘frivolous,’ when applied to
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a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual
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allegation.’” Magee, 26 F. Supp. 2d at 155 In other words, “a legal claim may be deemed
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frivolous if it is wholly unsupported by law or facts.” Id.
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Here, the Court finds and certifies in writing that Plaintiffs’ appeal is not taken in
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good faith under 28 U.S.C. § 1915(a)(3). The Court’s October 11, 2012 Order explained in
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detail why Plaintiffs’ causes of action challenging the trustee’s sale of the property and the
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validity of the various documents relating to the property’s title and deed are without any
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arguable legal or factual merit. See Robertson v. DLJ Mortg. Capital, Inc., 2012 WL
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4840033 (D. Ariz. Oct. 11, 2012). The Court’s finding, however, does not prevent Plaintiffs
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from filing a motion to proceed on appeal in forma pauperis in the Ninth Circuit Court of
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Appeals pursuant to, and in compliance with, Rule 24(a)(5), Fed.R.App.P. O’Neal, 531 F.3d
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at 1150 (citations omitted).
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Accordingly,
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IT IS ORDERED that the Court certifies that this appeal is not taken in good faith.
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IT IS FURTHER ORDERED that Plaintiffs’ Motion for Permission to Appeal In
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Forma Pauperis, doc. 69, is DENIED.
Dated this 13th day of November, 2012.
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