Fisher v. Whitlock et al

Filing 28

ORDER adopting 27 REPORT AND RECOMMENDATIONS re 26 MOTION for Leave to Appeal in forma pauperis filed by Dorothy Fisher. Signed by Judge Roy B. Dalton, Jr. on 1/10/2019. (JLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DOROTHY FISHER,
Plaintiff,
v.

Case No. 6:17-cv-574-Orl-37TBS

GREGORY WHITLOCK; and
AUTHORHOUSE, LLC,
Defendants.
_____________________________________
ORDER
Plaintiff, proceeding pro se, initiated this action concerning Defendants’ alleged
misappropriation of royalties owed to her from her cookbook Cooking with Miss Dorothy
on March 31, 2017. (See Doc. 1.) Plaintiff twice failed to properly allege subject matter
jurisdiction (see Docs. 1, 6, 10, 11), so on April 28, 2017, the Court dismissed her Amended
Complaint without prejudice and granted her leave to amend, cautioning that failure to
timely comply would result in dismissal and closure of the case. (Doc. 11, p. 2.) Despite
this opportunity, Plaintiff failed to submit an amended filing. Thus, the Court dismissed
the case with prejudice on May 16, 2017. (Doc. 12 (“Dismissal Order”).) Over a year later,
Plaintiff filed a motion for reconsideration (Doc. 13), which the Court denied on August
27, 2018 (Doc. 14 (“Reconsideration Order”)).
After multiple other failed attempts to have the Court reconsider its Dismissal
Order and to hold a hearing in this case (see Docs. 15–23), Plaintiff filed a notice of appeal
on December 12, 2018 as to the Dismissal Order and the Reconsideration Order (Doc. 24).
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Now Plaintiff moves for leave to proceed in forma pauperis. 1 (Doc. 26 (“IFP Motion”).) On
referral, U.S. Magistrate Judge Thomas B. Smith recommends that the Court deny the IFP
Motion, finding that: (1) no basis for a good faith appeal exists because Plaintiff failed to
file a complaint that properly alleged subject matter jurisdiction over her claims despite
multiple opportunities; and (2) the notice of appeal is time barred. (Doc. 27 (“R&R”).)
The parties did not object to the R&R, and the time for doing so has now passed.
As such, the Court has examined the R&R only for clear error. See Wiand v. Wells Fargo
Bank, N.A., No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan 28, 2016); see
also Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Finding no such error, the
Court finds that the R&R is due to be adopted in its entirety.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation
(Doc. 27) is ADOPTED, CONFIRMED, and made a part of this Order.

2.

The Court certifies that Plaintiff’s appeal is not taken in good faith.

3.

Plaintiff’s motion for leave to proceed in forma pauperis on appeal (Doc. 26)
is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 10, 2019.

1 Although Plaintiff’s IFP Motion is filed on the

form titled “Application to Proceed
in District Court Without Prepaying Fees or Costs,” Magistrate Judge Smith
appropriately construed the IFP Motion as a motion to proceed on appeal in forma
pauperis. (See Doc. 27, p. 1.)
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Copies to:
Counsel of Record
Pro Se Party

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