Disanto et al v. Thomas

Filing 51

ORDER denying Defendant's 43 Motion for Relief from Judgment; denying Defendant's 45 Motion for Leave to Appeal in forma pauperis; dismissing Plaintiff Lawson and Cartwright's 49 Motion to Strike. Signed by Chief Judge Lisa G. Wood on 5/17/2016. (ca)

n the Uniteb Statto Jitritt Court
for the boutbiernMotrut Of georgia
aptro flibiiou
DORENE DISANTO; KAREN LAWSON;
MARGARET CART WRIGHT; STATE OF
OHIO; and MIKE DEWINE,
Plaintiffs,
V.

THOMAS L. THOMAS,
Defendant.

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CIVIL ACTION NO.: 5:15-cv-36

ORDER

Presently before the Court is Defendant Thomas L. Thomas'
Motion for Relief from Judgment and his Motion for Leave to
Appeal in Forma Pauperis.

Dkt. Nos. 43, 45. Additionally,

Plaintiffs Karen Lawson and Margaret Cartwright filed a Motion
to Strike Defendant's Notice of Appeal. Dkt. No. 49. For the
reasons set forth below, the Court

DENIES

Defendant Thomas'

Motion for Relief and Motion for to Leave to Appeal in Forma
Pauperis and DISMISSES Plaintiffs' Motion to Strike.

As the Court has already informed Defendant, this Court has
remanded this cause of action to the Lake County, Ohio, court,
and has entered a judgment closing this case. Dkt. No. 42, p.
2. Defendant provides no reason for the Court to reconsider or

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review its Orders, and, moreover, this Court lacks jurisdiction
to do so. Id. at pp. 2-3. For these reasons and for those
previously stated, the Court DENIES Defendant's Motion for
Relief from Judgment, and this case remains closed.
Further, Defendant cannot proceed on appeal in forma
pauperis if this Court certifies, either before or after the
notice of appeal is filed, that the appeal is not taken in good
faith. 28 U.S.C. § 1915(a) (3); Fed. R. App. P. 24(a)(3). Good
faith in this context must be judged by an objective standard.
Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999)
A party does not proceed in good faith when it seeks to advance
a frivolous claim or argument. See Coppedge v. United States,
369 U.S. 438, 445 (1962); Whitted v. Roberts, Case No. 06-CV776-KDB, 2010 WL 2025391, at *1 (S.D. Ala. Apr. 27, 2010) . A
claim or argument is frivolous when it appears the factual
allegations are clearly baseless or the legal theories are
indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327
(1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.1993)
Or, stated another way, an in forma pauperis action is
frivolous, and thus not brought in good faith, if it is "without
arguable merit either in law or fact." Napier v. Preslicka, 314
F.3d 528, 531 (11th Cir.2002); Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir. 2001) . "Arguable means capable of being

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2

convincingly argued." Sun v. Forrester, 939 F.2d 924, 925 (11th
Cir. 1991) (internal quotations and citations omitted).
For the reasons set forth in the Court's previous Orders in
this case, any argument Defendant seeks to raise on appeal is
without merit. Additionally, pursuant to 28 U.S.C. § 1447(d),
Defendant cannot appeal this Court's remand Order. Things
Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28 (1995) (where
district court remands case based on lack of subject matter
jurisdiction "a court of appeals lacks jurisdiction to entertain
an appeal of the remand under § 1447(d)"). Consequently, the
Court DENIES Defendant's Motion for Leave to Appeal in Forma
Pauperis because his appeal is not taken in good faith. 28
U.S.C. § 1915(a) (3).
In their Motion to Strike, Plaintiffs Lawson and Cartwright
ask the Court to strike Defendant's Notice of Appeal because the
Court of Appeals lacks jurisdiction to hear the appeal under
Section 1447(d). However, as a general rule, once a party files
a notice of appeal, this Court loses authority to make decisions
regarding the appeal. Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982) ("[t]he filing of a notice of appeal
is an event of jurisdictional significance-it confers
jurisdiction on the court of appeals and divests the trial court
of its control over those aspects of the case involved in the
appeal."); see also Ramara, Inc. v. Westfield Ins. Co., 814 F.3d
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660, 672 (3d Cir. 2016) (questioning district court's authority
to rule on motion to strike notice of appeal). Therefore, the
Court DISMISSES Plaintiff Lawson and Cartwright's

ion to

Strike for want of jurisdiction.
SO ORDERED, this

day

LISA GODBEY/WOOD,
UNITED STES DISTRICT COURT
SOUTHERN,'tISTRICT OF GEORGIA

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2016.