Behrens v. GMAC Mortgage, LLC

Filing 13

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Upon careful consideration, the court's March 19, 2013, Memorandum and Order (Filing No. 9 ) is amended in two respects. First, the initial partial filing fee is $18.73 (not $11 2.40 as set forth in the March 19 order). Second, Plaintiff is granted an extension of time until May 20, 2013, to pay his initial partial filing fee. The clerk's office is directed to send a copy of this Memorandum and Order to the appropriat e financial official at Plaintiff's institution. Plaintiff's Notice of Interlocutory Appeal, which the court liberallyconstrues as a Motion for Interlocutory Appeal, is denied as moot. (Filing No. 10 .) Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed and to pro se party )(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRYAN BEHRENS,
Plaintiff,
v.
GMAC MORTGAGE, LLC,
Defendant.

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8:13CV72

MEMORANDUM
AND ORDER

This matter is before the court on reconsideration of the court’s calculation of
Plaintiff’s initial partial filing fee. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff must
pay an initial partial filing fee in the amount of 20 percent of the greater of Plaintiff’s
average monthly account balance or average monthly deposits for the six months
preceding the filing of the complaint. On March 19, 2013, the court assessed an
initial partial filing fee in the amount of $112.40 “based on average monthly deposits
of $562.00” for the six months preceding the filing of Plaintiff’s Complaint. (Filing
No. 9.) Upon further review of Plaintiff’s inmate trust account statement, the court
notes that $562.00 was the total amount deposited in Plaintiff’s account, not the
average monthly amount. (See Filing No. 5.) Accordingly, the court finds that the
initial partial filing fee is $18.73 based on average monthly deposits of $93.67.
Also pending is Plaintiff’s Notice of “Interlocutory Appeal,” which the court
liberally construes as a Motion for Interlocutory Appeal. (Filing No. 10.) In light of
the court’s reconsideration of the calculation of the initial partial filing fee in this
matter, Plaintiff’s Motion for Interlocutory Appeal is denied as moot. In the
alternative, Plaintiff’s Motion for Interlocutory Appeal is denied because the decision
he seeks to appeal does not involve a controlling question of law. See 28 U.S.C.
§ 1292(b) (stating interlocutory appeal may be taken if the district court certifies that
an otherwise unappealable order involves a controlling question of law as to which
there is substantial ground for difference of opinion, and immediate appeal may
materially advance the ultimate termination of the litigation).

IT IS THEREFORE ORDERED that:
1.
Upon careful consideration, the court’s March 19, 2013, Memorandum
and Order (Filing No. 9) is amended in two respects. First, the initial partial filing fee
is $18.73 (not $112.40 as set forth in the March 19 order). Second, Plaintiff is granted
an extension of time until May 20, 2013, to pay his initial partial filing fee.
2.
The clerk’s office is directed to send a copy of this Memorandum and
Order to the appropriate financial official at Plaintiff’s institution.
3.
Plaintiff’s Notice of Interlocutory Appeal, which the court liberally
construes as a Motion for Interlocutory Appeal, is denied as moot. (Filing No. 10.)
DATED this 12th day of April, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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