In re Jacqueline C. Melcher

Filing 71

ORDER by Judge Ronald M. Whyte granting 69 , 70 Renewed Motion for Leave to Appeal in forma pauperis. (rmwlc2, COURT STAFF) (Filed on 6/2/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JACQUELINE C. MELCHER,

9th Cir. Case No. 16-15817
Dist. Ct. Case No. 5:14-cv-05586-RMW
Bankruptcy Case No. 01-53251

Appellant,
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v.

ORDER GRANTING RENEWED
MOTION TO PROCEED IN FORMA
PAUPERIS ON APPEAL

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JOHN W. RICHARDSON, Trustee in
Bankruptcy,

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Appellee.

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Re: Dkt. No. 69, 70

Appellant Jacqueline C. Melcher appeals to the Ninth Circuit this court’s March 31, 2016

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order affirming a decision of the bankruptcy court. Dkt. No. 65. Appellant renews her request to

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proceed in forma pauperis (IFP) in her appeal to the Ninth Circuit. Dkt. Nos. 69, 70. This court

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denied appellant’s previous request to proceed IFP on appeal for failure to provide the

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documentation required by Federal Rule of Appellate procedure 24(a)(1). Dkt. No. 68. On May

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26, 2016, appellant filed a renewed request to proceed IFP on appeal that attached the requested

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documentation. Dkt. No. 70.

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Analysis of an IFP application is governed by 28 U.S.C. § 1915. Section 1915(a) does not

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require an applicant to demonstrate absolute destitution. See Escobedo v. Applebees, 787 F.3d

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1226, 1234 (9th Cir. 2015). Having reviewed appellant’s financial affidavit, Dkt. No. 70-2, the

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court is satisfied that appellant meets the economic eligibility requirement to proceed IFP on

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5:14-cv-05586-RMW
ORDER GRANTING RENEWED MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
RS

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appeal.
In evaluating an application to proceed IFP on appeal, the court must not only examine a

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litigant’s economic status but also determine whether the appeal is taken in good faith. “An appeal

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may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good

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faith.” 28 U.S.C. § 1915(a)(3). “If at least one issue or claim is found to be non-frivolous, leave to

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proceed in forma pauperis on appeal must be granted for the case as a whole.” Hooker v. Am.

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Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).
This court has serious doubts about whether the majority of Ms. Melcher’s appeal is taken

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in good faith. For example, the first issue that appellant presents for appeal asks: “Did the Court
error [sic] when it did not consider the fact that the Trustee failed to serve the Appellant any of his

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United States District Court
Northern District of California

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papers to sell the Appellant’s Carmel home including: [four specific documents]?” Dkt. No. 70 at

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3. This court’s March 31, 2016 order explicitly considered and rejected appellant’s arguments

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about an alleged lack of service. Dkt. No. 64 at 4-7. Another issue that Ms. Melcher now presents

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for appeal was not presented in appellant’s brief before this court. Compare Dkt. No. 70 at 3-4

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(“Did the Court error [sic] by incorrectly believing the BAP’s harsh mandate . . . gave permission

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to the Trustee to retroactively cancel the Bankruptcy court’s previous orders allowing the

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Appellant to object to the Trustee’s fees . . . ?”) with Dkt. No. 51 at 2-4 (statement of issues before

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district court). Moreover, in the course of appellant’s bankruptcy case, which has been open for

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approximately 14 years, appellant has been declared a vexatious litigant,1 and the Ninth Circuit

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has called her litigation tactics an “abuse of the bankruptcy process.”2 Nevertheless, this court

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finds that at least one issue underlying the instant appeal—whether appellant was provided

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adequate notice before her residence was sold—may not be frivolous. Applying the standard of

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Hooker v. American Airlines, this court GRANTS Ms. Melcher’s application to proceed IFP on

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appeal.

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In re Melcher, No. BAP NC-14-1573-TADJU, 2015 WL 8161915, at *5 (B.A.P. 9th Cir. Dec. 7,
2015).
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In re Melcher, 300 Fed. Appx. 455, 456 (9th Cir. 2008).
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5:14-cv-05586-RMW
ORDER GRANTING RENEWED MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
RS

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IT IS SO ORDERED.
Dated: June 2, 2016
______________________________________
Ronald M. Whyte
United States District Judge

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United States District Court
Northern District of California

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5:14-cv-05586-RMW
ORDER GRANTING RENEWED MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
RS