Collum v. PayPal et al

Filing 36

MEMORANDUM AND ORDER - In accordance with this Memorandum and Order, Plaintiff is permitted to appeal the court's November 20, 2012, Memorandum and Order and Plaintiff's Motion for Leave to Appeal in forma pauperis (filing no. 35 ) is granted. The Clerk of the court shall provide the Court of Appeals with a copy of this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN T. COLLUM,
Plaintiff,
v.
PAYPAL, and KELLIE CAIN,
Defendants.

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8:12CV17

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to Appeal in
forma pauperis. (Filing No. 35.) On May 16, 2012, the court dismissed Plaintiff’s
claims and entered Judgment against him. (Filing Nos. 18 and 19.) On November 20,
2012, the court, in an effort to curb Plaintiff’s litigation abuses, entered a
Memorandum and Order restricting Plaintiff from filing complaints in this court and
proceeding IFP without first seeking the court’s leave to do so. (Filing No. 33.) On
December 3, 2012, Plaintiff filed a Notice of Appeal. (Filing No. 34.)
Federal Rule of Appellate Procedure 4(a)(1) requires that the notice of appeal
in a civil case be filed within thirty days after the judgment or order appealed from is
entered. “A timely notice of appeal is both mandatory and jurisdictional.” Burgs v.
Johnson Cnty., Iowa, 79 F.3d 701, 702 (8th Cir. 1996). Morever, an untimely notice
of appeal cannot serve as a motion for extension of time to file an appeal. Id.
However, the district court may extend the time to file a notice of appeal if a party
moves for an extension of time and shows excusable neglect or good cause. Fed. R.
App. P. 4(a)(5)(A)(ii).

Plaintiff’s Notice of Appeal was filed more than six months after the court’s
May 16, 2012, Memorandum and Order and Judgment.1 (See Docket Sheet.) Thus,
it is untimely with respect to the court’s May 16, 2012, Memorandum and Order and
Judgment. Liberally construed, however, Plaintiff may have intended to appeal the
court’s November 20, 2012, Memorandum and Order. (Filing Nos. 33 and 35.) To
the extent Plaintiff intended to appeal the court’s November 20, 2012, Memorandum
and Order, his Notice of Appeal was timely filed.
Plaintiff is a non-prisoner and has previously been granted leave to proceed in
forma pauperis in this matter. (Filing No. 5.)
As set forth in Federal Rule of Appellate Procedure 24(a)(3):
(a) Leave to Proceed in Forma Pauperis. . . .
(3) Prior Approval. A party who was permitted to proceed
in forma pauperis in the district-court action, or who was determined to
be financially unable to obtain an adequate defense in a criminal case,
may proceed on appeal in forma pauperis without further authorization,
unless:
(A) the district court—before or after the notice of
appeal is filed—certifies that the appeal is not taken in good faith or

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The court notes that Plaintiff filed a Motion to Reopen on the same day the
court entered its May 16, 2012, Judgment in this matter. (Filing No. 20.) Liberally
construed, Plaintiff may have intended to file this Motion under Fed. R. Civ. P. 59(e),
which would have tolled the time to appeal while the Motion was pending. See Fed.
R. App. P. 4(a)(1), (a)(4)(A)(iv) (30-day time limit; timely Rule 59(e) motion tolls
time to file appeal until entry of order disposing of motion). However, the court
disposed of Plaintiff’s Motion to Reopen on June 22, 2012 (filing no. 22) and
Plaintiff’s successive motions for reconsideration do no repeatedly toll the time to
appeal. Charles v. Daley, 799 F.2d 343, 347–48 (7th Cir.1986).
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finds that the party is not otherwise entitled to proceed in forma pauperis
and states in writing its reasons for the certification or finding; or
(B) a statute provides otherwise.
The court finds that because Plaintiff proceeded in forma pauperis in the district
court, he may now “proceed on appeal in forma pauperis without further
authorization.” Id.
IT IS THEREFORE ORDERED that:
1.

In accordance with this Memorandum and Order, Plaintiff is permitted

to appeal the court’s November 20, 2012, Memorandum and Order and Plaintiff’s
Motion for Leave to Appeal in forma pauperis (filing no. 35) is granted.
2.

The Clerk of the court shall provide the Court of Appeals with a copy of

this Memorandum and Order.
DATED this 5 th day of December, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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