US Bank National Association et al v. Gunn

Filing 107

MEMORANDUM OPINION re 91 MOTION for Reconsideration re 84 Order, and 105 MOTION for Reconsideration re 103 Order. Signed by Judge Richard G. Andrews on 8/1/2012. (nms)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF DELAWARE

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U.S. BANK NATIONAL ASSOCIATION as
Trustee for the Holders of the EQCC Home
Equity Loan Asset Backed Certificates,
Series 1998-3 and SELECT PORTFOLIO
SERVICING, INC.,

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Plaintiffs,

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Civ. No. 11-1155-RGA

LA MAR GUNN,
Defendant.
MEMORANDUM
On June 4, 2012, the Court denied Defendant LaMar Gunn's Motion for an
Extension of Time to file a First Amended Answer. (D.I. 79, 84.) Defendant filed a
Notice of Appeal of the Order and an Application to Proceed without Prepaying Fees or
Costs on Appeal. (D. I. 101, 102.) The Court denied the Application on July 17, 2012.
(D.I. 103.) Now before the Court are Defendant's Motions for Reconsideration for each
order. (D.I. 91, 105.) For the reasons discussed below, the Court will deny the
Motions.
The purpose of a motion for reconsideration is to "correct manifest errors of law
or fact or to present newly discovered evidence." Max's Seafood Cafe ex ref. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). "A proper Rule 59(e) motion ...
must rely on one of three grounds: (1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice." Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).
On February 8, 2012, the Court entered a Scheduling Order that provided for
amendment of pleadings on or before February 22, 2012. (D. I. 24.) On May 17, 2012,

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the Court granted Defendant's Motion for Leave to File an Amended Answer in
compliance with the Local Rules of the Court. (D.I. 63.) Defendant was given fourteen
days from the date of the Order to file the Amended Answer. On May 30, 3012,
Defendant filed a Motion for an Extension of Time of thirty days to file the Amended
Answer. (D. I. 79.) The Court denied the motion finding that the discovery cut-off had
passed and no good cause had been shown for an extension. (D.I. 84.) Federal Rule
Civil Procedure 16(b)(4) provides that a scheduling order may be modified only for good
cause and with the judge's consent.
Defendant seeks reconsideration on the grounds that he has discovered a
number of new facts that require more time for him to prepare his amended response
and to conduct discovery. (D. I. 91.) He contends that his "substantial rights stand to be
affected if blocked from introducing new evidence and extending discovery." (/d.)
Plaintiffs oppose the motion. (D.I. 95.)
The court has reviewed Defendant's motion and the other filings of record.
Defendant refers to newly discovery evidence but does not state what that evidence
might be. Defendant has failed to demonstrate any of the grounds necessary to
warrant reconsideration of the Court's June 4, 2012 Order. (See D.l. 84.) Nor has
Defendant provided adequate reasons for this Court to extend the discovery deadline.
Therefore, the Court will deny the Motion for Reconsideration.
One month after Defendant filed the Motion for Reconsideration found at Docket
Item 91, he filed a Notice of Appeal of the June 4, 2012 Order. (See D.l. 101.)
Concurrent with the filing of the Notice of Appeal, Defendant filed an Application to
Proceed without Prepaying Fees or Costs on Appeal. (D.I. 102.) The Court denied the
Application based upon Defendant's reported annual income of $33,600.00. (D.I. 103.)
Defendant moves for reconsideration on the grounds that he has been granted

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permission to proceed in forma pauperis in several courts including the United States
District Court for the Southern District of New York, the Supreme Court of the State of
Delaware and the Superior Court of the State of Delaware. (D.I. 105.) Plaintiffs oppose
the motion. (D.I. 106.)
The Defendant has not been previously granted in forma pauperis status in this
case because the issue has not needed to be addressed, inasmuch as it was not his
choice to begin this litigation. It is his choice to file an appeal, and therefore, pursuant
to Fed. R. App. P. 24(a)(1), if he wants to proceed in forma pauperis, he needed to
make a motion to do so.
The Rule of Appellate Procedure follows from the in forma pauperis statute, 28
U.S.C. § 1915, which "is designed to ensure that indigent litigants have meaningful
access to the federal courts." Neitzke v. Williams, 490 U.S. 319, 324 (1989). Congress
enacted the statute to ensure that administrative court costs and filing fees, both of
which must be paid by everyone else who files a lawsuit, would not prevent indigent
persons from pursuing meaningful litigation. Douris v. Middletown Twp., 293 F. App'x
130, 131 (3d Cir. 2008) (citing Deutsch v United States, 67 F.3d 1080, 1084 (3d Cir.
1995)). Section 1915(a) allows a litigant to commence a civil action in federal court in
forma pauperis by filing in good faith an affidavit stating, among other things, that he is
unable to pay the costs of the lawsuit. /d. at 131-32 (citing Neitzke, 490 U.S. at 324).
In the appellate context, it also requires that the litigant state the issue he intends to
present on appeal. Based on the record, it is clear that the appellate issue he wants to
present involves denying him more time to amend his answer. This is a classic
interlocutory appeal, and therefore the Court of Appeals is without jurisdiction. While I
cannot say that the Defendant has appealed in bad faith (as I have no reason to believe

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that he knows any better), the appeal is the equivalent of a bad faith appeal.
Nevertheless, I have denied leave to proceed in forma pauperis entirely on the financial
information submitted.
Whether to grant or deny a request to proceed in forma pauperis lies within the
sound discretion of the trial court. Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985).
"[l]n order for a court to grant in forma pauperis status, the litigant seeking such status
must establish that he is unable to pay the costs of his suit." Walker v. People Express
Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989).
A court's decision whether to grant in forma pauperis status is based solely on
the economic eligibility of the plaintiff. See Sin well v. Shapp, 536 F.2d 15, 19 (3d Cir.
1976). The court reviews the litigant's financial statement, and, if convinced that he or
she is unable to pay the court costs and filing fees, the court will grant leave to proceed
in forma pauperis. Deutsch, 67 F.3d at 1084 n.5. Economic eligibility does not require
that a litigant subject himself to complete destitution to maintain his lawsuit. See Jones
v. Zimmerman, 752 F.2d at 79.

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Defendant provides no new information. His affidavit of poverty indicates that he
has an adequate income to pay the required filing fee on appeal. While Defendant
refers to the grant of in forma pauperis status by other courts, this Court does not know
what information was considered by those courts. Nor did Defendant provide that
information to the Court. Defendant has failed to demonstrate any of the necessary
grounds to warrant reconsideration of the Court's July 17, 2012 Order. Therefore, the
Court will deny the Motion for Reconsideration.
An appropriate Order will issue.

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2012
August
Wilmington, Delaware

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