Butler v. Nordstrom, Inc.

Filing 128

ORDER DENYING PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS. Signed by Judge Maxine M. Chesney on March 20, 2009. (mmclc1, COURT STAFF) (Filed on 3/20/2009)

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1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, filed March 17, 2009. The above-titled action was removed to district court on June 6, 2004, and plaintiff was not required to pay a filing fee or any other fee at such time. Judgment was entered against plaintiff on August 25, 2005. Defendant did not seek to recover its costs, and, consequently, plaintiff was not found liable for any costs. On March 10, 2009, plaintiff filed a Notice of Appeal, but, to date, has not paid the $455 fee required for said filing. Under such circumstances, the Court construes the instant application as an application to allow plaintiff to proceed in forma pauperis on appeal. An application to proceed in forma pauperis on appeal must be denied if the appeal is "frivolous." See 28 U.S.C. 1915(e)(2)(B)(i). A notice of appeal must be filed within 30 days of the date of entry of judgment. See Fed. R. App. P. 4(a)(1)(A); see also Browder v. v. NORDSTROM, INC., Defendant / LASHAWN BUTLER, Plaintiff, No. 04-2268 MMC ORDER DENYING PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Director, Dep't of Corrections of Illinois, 434 U.S. 257, 264 (1978) (providing requirement that "notice of appeal in a civil case must be filed within 30 days of the judgment" is "mandatory"). Here, plaintiff filed the instant notice of appeal more than three years after entry of judgment. Under such circumstances, the notice of appeal is plainly untimely and, consequently, the appeal is frivolous. Accordingly, plaintiff's application is hereby DENIED. Plaintiff is hereby informed that she may file a motion to proceed on appeal in forma pauperis in the Ninth Circuit Court of Appeals. See Fed. R. App. Proc. 24(a)(5). The Clerk of the Court is hereby DIRECTED to send a copy of this order to the Ninth Circuit Court of Appeals. IT IS SO ORDERED. Dated: March 20, 2009 MAXINE M. CHESNEY United States District Judge 2

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