UNITED STATES SMALL BUSINESS ADMINISTRATION, v. HERBST
Filing
59
MEMORANDUM OPINION. Signed by Chief Judge Garrett E. Brown, Jr on 11/14/2011. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
ABRAHAM HERBST,
)
)
Defendant.
)
__________________________________________)
THE UNITED STATES SMALL BUSINESS
ADMINISTRATION AS RECEIVER FOR
PENNY LANE PARTNERS, L.P.,
Hon. Garrett E. Brown, Jr.
Civil Action No. 08-01396
MEMORANDUM OPINION
BROWN, Chief Judge
This matter comes before the Court upon Abraham Herbst’s (“Defendant”) motions for
PACER access (Doc. No. 54), to stay entry of judgment (Doc. No. 55), and for certain other
orders (Doc. No 58). The Court has considered Defendant’s submissions and decided the matter
without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth
below, the Court will deny all of Defendant’s motions.
I.
BACKGROUND
Plaintiff, the United States Small Business Administration, as Receiver (“Receiver”) for
Penny Lane Partners, L.P. (“Penny Lane”), brought an ancillary action to recover unfunded
capital contributions it claimed Defendant owed as a Private Limited Partner of Penny Lane.
Penny Lane was a licensed Small Business Investment Company, and it was placed into
Receivership under the SBA by this Court’s Order of May 16, 2006. United States v. Penny Lane
Partners, LP, Civ. No. 06-1894 (D.N.J. 2006).
On May 12, 2011, Receiver moved for summary judgment (Doc. No. 34). Instead of a
proper response to Receiver’s Statement of Undisputed Material Facts, Defendant submitted two
affidavits presenting a number of unsupported, conclusory assertions. Mindful of Defendant’s
pro se status, the Court endeavored to ascertain the material facts Defendant attempted to
dispute. The Court held that Receiver satisfied its initial burden of producing evidence of
Defendant’s commitments under the Limited Partnership Agreement (LPA), as well as evidence
of Defendant’s remaining balance. Defendant failed to present colorable evidence showing a
genuine dispute of material fact or a cognizable legal or factual theory that would overcome his
obligations under the LPA. Consequently, the Court granted summary judgment in favor of
Receiver in the amount requested, $51,750 plus 10% interest pursuant to Article 5.11 of the LPA.
(Doc. No. 52)
The Defendant subsequently moved for access to PACER (Doc. No. 54), to stay entry of
judgment (Doc. No. 55), and for the court to issue various declaratory orders (Doc. No 58).
II.
ANALYSIS
A. Defendant’s Motion for PACER Access
The standard of review for in forma pauperis motions is that “the procedure followed in
the district court may not be so employed as to leave a pro se litigant absolutely penniless.”
Bullock v. Suomela, 710 F. 2d 102, 103 (3d Cir. 1983). The motion for access to PACER has
been submitted at a particularly late stage of litigation, after the Court has granted summary
judgment. The courts have not looked favorably on this practice. See In re Mactruong, 335 Fed.
Appx. 156 (3d Cir. 2009). Additionally, Defendant has not shown that free legal research on
2
PACER is “necessary to avoid unreasonable burdens.” See Electronic Public Access Fee
Schedule (reprinted with 28 U.S.C. § 1914). Accordingly, the Court will deny access to PACER.
B. Defendant’s Motion to stay entry of judgement
Defendant has moved to stay entry of judgment and requests an extension of time to file a
motion for reconsideration. He argues that a stay is necessary because he was prevented from
taking legal action as a result of the “Jewish High Holidays,” during which work is prohibited.
The motion is clearly untimely. The Defendant failed to request an extension of time to file in
advance of the holidays, nor would such an extension have made an appreciable difference in the
time available to work on this litigation. The period during which Defendant could have appealed
or moved to reargue expired on September 29, 2011. See FED . R. CIV . P. 59.1 However, the first
and only holiday named in the motion for extension that occurred during the period in which
Defendant could have filed a timely motion was Rosh Hashanah. Rosh Hashanah began at sunset
on September 28, 2011, the night before the last day to appeal or make a motion. Defendant has
not shown that the one day lost for religious observances caused him to miss the deadline to
make a timely motion. Nor did he file a motion for an extension in advance of the holidays in
question. See Joseph v. Hess Oil Virgin Islands Corp. 651 F.3d 348 (3d Cir. 2011) (“While
appellate counsel contends that he had other obligations during the week when the certiorari
petition was due, he does not claim to have been unaware of those obligations well in advance,
nor does it appear that he is so encumbered by them that requiring compliance with the deadline
1
Additionally, local rules of this Court require that a motion for reconsideration be filed within 14 days. See L. C IV .
R. 7.1(i) (“Unless otherwise provided by statute or rule (such as Fed. R. Civ. P. 50, 52 and 59), a motion for
reconsideration shall be served and filed within 14 days after the entry of the order or judgment on the original
motion by the Judge or Magistrate Judge.”).
3
would be unreasonable. A busy schedule, by itself, is not good cause for more time.”) (citing
Mississippi v. Turner, 498 U.S. 1306, 1032 (1991)). Consequently, the Court will not grant
Defendant’s motion to stay entry of judgment or an extension of time to file.
C. Defendant’s Other Motions
Finally, Defendant has submitted a motion that makes a number of unsupported,
conclusory allegations about the purportedly fraudulent nature of the LPA and requests various
“declaratory orders.” (Doc. No. 58). Defendant has not submitted a proper motion. Even if the
Court were to attempt to ascertain a legal argument in the affidavit submitted, the motion would
still be untimely. The affidavit was submitted on October 21, 2011 and any motion regarding the
nature of the LPA agreement should have been made either in the opposition to Receiver’s
motion to summary judgment or during the period in which Defendant cold have appealed or
moved to reargue. Accordingly, the Court will deny Defendant’s motion for certain declaratory
orders.
III.
CONCLUSION
.
For the forgoing reasons, the Court denies Defendant’s motions for PACER access (Doc.
No. 54), to stay entry of judgment (Doc. No. 55), and for certain other orders (Doc. No 58). An
appropriate form of Order accompanies this Memorandum Opinion.
Dated: November 14, 2011
s/ Garrett E. Brown, Jr.
GARRETT E. BROWN, JR., U.S.D.J.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?