WULSTER v. PFEIFFER
Filing
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OPINION ORDER and ORDER TO SHOW CAUSE Granting the Appellants application to 28 U.S.C. § 1915 to waive the filing fee; further Ordering that the appellant will Show Cause why the appeal should not be dismissed or in the alternative why the order appealed from should be affirmed; further Ordering if the appellant fails to timely file a brief in response hereto, then the appellant will be deemed to be in support of dismissal of the appeal. Signed by Judge Mary L. Cooper on 1/16/2012. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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IN RE GREGG F. WULSTER,
Debtor.
GREGG F. WULSTER,
Appellant,
v.
KAREN PFEIFFER,
Appellee.
Bankruptcy No. 09-13388 (MBK)
Adv. Proc. No. 09-2015 (MBK)
CIVIL ACTION NO. 11-3407 (MLC)
OPINION, ORDER, &
ORDER TO SHOW CAUSE
THE APPELLANT, who is pro se, seeks to appeal from an order
of the United States Bankruptcy Court.
Notice of Appeal.)
(See dkt. entry no. 1,
The appellant applies to waive the filing fee
for the appeal under 28 U.S.C. § (“Section”) 1915 (“Application”).
(See dkt. entry no. 5, Appl.)
The appellant properly filed the
Application in the United States District Court, rather than in
the Bankruptcy Court.
See Countryman v. Prue, 343 B.R. 904, 906
(N.D. Ind. 2006) (stating bankruptcy court lacks authority to
permit appellant to waive filing fee for appeal).
This Court,
based upon a review of the Application presenting the appellant’s
financial situation, will (1) grant the Application, and (2) deem
the notice of appeal to be filed.
THE COURT may now (1) review the appeal, and (2) dismiss it
sua sponte if it is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief
against an appellee who is immune from such relief.
See 28
U.S.C. § 1915(e)(2)(B); Roper v. Garden Ridge Corp. (In re Garden
Ridge Corp.), Nos. 06-555 & 06-723, 2009 WL 62442, at *1-3
(D.Del. Jan. 9, 2009) (reviewing appeal’s merits after granting
bankruptcy appellant’s application to waive filing fee); In re
Evans, No. 06-547, 2007 WL 2020166, at *1 (N.D. Fla. July 9,
2007) (adopting Magistrate Judge’s report and recommendation,
found at 2007 WL 1430264 (N.D. Fla. May 9, 2007), which granted
bankruptcy appellant’s application to waive filing fee and then
discerned appeal’s merits).
THE COURT thus will set a briefing schedule, whereupon the
appellant will show cause why (1) the appeal should not be
dismissed as being frivolous or malicious, for failing to state a
claim on which relief may be granted, or seeking monetary relief
against an appellee who is immune from such relief, or in the
alternative (2) the order appealed from should not be affirmed.
See Fed.R.Bankr.P. 8009, 8010.
The Court will also provide the
appellee with an opportunity to respond.
This schedule will
override any schedule set by the Office of the Clerk of the
District Court.1
FOR GOOD CAUSE APPEARING:
1
On the District Court docket, there is a document listed
as the Appellant’s Brief. (See dkt. entry no. 4.) However, that
document appears to be addressed to the Bankruptcy Court, and not
the District Court. In addition, it was filed before the
Application was considered.
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IT IS THEREFORE on this
16th
day of November, 2011,
ORDERED that the application pursuant to 28 U.S.C. § 1915 to
waive the filing fee (dkt. entry no. 5) is GRANTED; and
IT IS FURTHER ORDERED that the Clerk of the Court FILE THE
NOTICE OF APPEAL without the prepayment of fees or costs; and
IT IS FURTHER ORDERED that the appellant will SHOW CAUSE why
the appeal should not be dismissed, or in the alternative why the
order appealed from should not be affirmed; and
IT IS FURTHER ORDERED that the parties, if responding, must
file briefs with the Office of the Clerk of the District Court by
the following dates:
December 5, 2011
Appellant’s brief
December 22, 2011
Appellee’s response
January 6, 2012
Appellant’s reply; and
IT IS FURTHER ORDERED that any briefs must be filed with the
Office of the Clerk of the District Court, and not with the
Office of the Clerk of the Bankruptcy Court; and
IT IS FURTHER NOTED that “filed” does not mean “mailed”, and
that the briefs must actually be in the possession of the Office
of the Clerk of the District Court by the dates so deemed; and
IT IS FURTHER ORDERED that no briefs will be filed by
facsimile, and the Office of the Clerk of the District Court will
not accept any briefs submitted by facsimile for filing; and
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IT IS FURTHER ORDERED that if the appellant fails to timely
file a brief in response hereto, then the appellant will be
deemed to be in support of dismissal of the appeal; and
IT IS FURTHER ORDERED that this matter will be decided after
January 6, 2012, without oral argument pursuant to Federal Rule
of Bankruptcy Procedure 8012.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
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