Khurana v. Elsaesser

Filing 2

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Debtor and Appellant Praveen Kevin Khurana's Motion to Waive Filing Fee on Appeal 1 is DENIED WITHOUT PREJUDICE. Within 21 days of this Order, Khurana may file a supplemental affidavit suppo rting his motion for IFP status. Failure to file a supplemental affidavit will result in an automatic denial of Khurana's Motion to Waive Filing Fee on Appeal. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
PRAVEEN KEVIN KHURANA,
Case No. 2:16-mc-08520-BLW
Appellant,

MEMORANDUM DECISION AND
ORDER

v.
J. FORD ELSAESSER,
Appellee.

INTRODUCTION
Pending before the Court is Appellant and Debtor Praveen Kevin Khurana’s
Motion to Waive Filing Fee on Appeal. (Dkt. 1). For the reasons explained below, the
Court will deny the motion without prejudice.
BACKGROUND
In June 2016, Khurana appealed three orders entered by the bankruptcy court: (1)
an order denying his motion to abandon; (2) an order denying his conditional motion to
transfer; and (3) an order disallowing his claim of exemption. Shortly thereafter,
Khurana filed a motion to waive the appellate filing fee, along with an affidavit
supporting that motion.
The bankruptcy court determined it could not rule on Khurana’s motion to proceed
in forma pauperis (IFP) because it is not a “court of the United States” as defined by 28

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U.S.C. § 451. See generally Perroton v. Gray (In re Perroton), 958 F.2d 889, 896 (9th
Cir. 1992). It therefore referred the motion to this Court for a ruling.
DISCUSSION
Federal courts may authorize the commencement of any suit, without prepayment
of fees or security, by a person who submits an affidavit that includes a statement of all
assets the person possesses and demonstrates that he or she is unable to pay such costs or
give such security. See 28 U.S.C. § 1915(a)(1). “[A]n affidavit is sufficient which states
that one cannot because of [ ] poverty pay or give security for the costs and still be able to
provide himself and dependents with the necessities of life.” Adkins v. E.I. Du Pont de
Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted); see also United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (stating that the affidavit must
“state the facts as to affiant’s poverty with some particularity, definiteness and certainty”
(internal quotation omitted)). While § 1915(a) does not require a litigant to demonstrate
absolute destitution, Adkins, 335 U.S. at 339, the applicant must nonetheless show that he
or she is “unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a).
Khurana’s IFP application is difficult to decipher, mainly because he used a form
affidavit, but he did not fill it out carefully or completely. For example, in the sections of
the form that ask about sources of income, Khurana indicates that his average monthly
employment income during the past 12 months is “$3,842 per annum.” Affidavit, Dkt. 11, at 2. So it is not entirely clear if Khurana is saying he makes just $3,842 per year or –
probably more likely – that he makes $3,842 per month. In addition to this problem,

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Khurana did not fill in various blanks throughout the form, including those designed to
inform the Court if he receives income from sources other than employment.
Assuming for the moment, however, that Khurana is reporting that he receives
$3,842 in employment income every month, then he is well above the poverty threshold
identified by the Department of Health and Human Services. See 2016 HHS Poverty
Guidelines, (https://www.federalregister.gov/articles/2016/01/25/2016-01450/annualupdate-of-the-hhs-poverty-guidelines) (last visited Oct. 19, 2016) (indicating that the
poverty threshold for a one-person household in Idaho is $11,880). Khurana also reports
that he has other assets, including two pieces of real estate reportedly worth a combined
total of $125,000. 1
Despite his income and assets, Khurana certainly has various debts and expenses;
after all, he sought bankruptcy protection. Nevertheless, in the section of the IFP
affidavit regarding current expenses, Khurana says that every month, he pays $2,986
related to “regular expenses for operation of business, profession, or farm.” Affidavit,
Dkt. 1-1 (response to question 8). Khurana did not provide any detail for these reported
expenses, despite the form’s instruction to “attach [a] detailed statement” for these sorts
of expenses.

1

Khurana did not fill out the form correctly, so the Court cannot ascertain if these
parcels of land are residential, commercial, or some other type of real estate. See Aff.,
Dkt. 1-1 (response to question 5).

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Based on this record, Khurana has failed to demonstrate poverty “with some
particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940
(9th Cir.1981) (internal quotation marks omitted). He therefore fails to qualify for IFP
status under § 1915(a). Further, based on his likely income ($3,842 per month) and his
reported assets, it seems quite unlikely that Khurana has any chance of qualifying for IFP
status. The Court believes his best course of action would be to simply pay the fee if he
wishes to pursue the appeal. In an abundance of caution, however, the Court will allow
Khurana a chance to file an amended affidavit supporting his motion. Any such affidavit
should detail Khurana’s financial situation with particularity, definiteness, and certainty.
ORDER
IT IS ORDERED that Debtor and Appellant Praveen Kevin Khurana’s Motion to
Waive Filing Fee on Appeal (Dkt. 1) is DENIED WITHOUT PREJUDICE. Within 21
days of this Order, Khurana may file a supplemental affidavit supporting his motion for
IFP status. Failure to file a supplemental affidavit will result in an automatic denial of
Khurana’s Motion to Waive Filing Fee on Appeal.
DATED: October 20, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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