Gottlieb v. Schneiderman et al

Filing 27

ORDER denying as moot 1 Motion for Leave to Proceed in forma pauperis, denying 18 Motion for Entry of Default and granting 17 Motion for Extension of Time to Answer regarding 7 Complaint. Signed by Magistrate Judge James E. Gates on 8/28/2015. Copy of order mailed to plaintiff via US Mail at 796 Washington Acres Rd., Hampstead, NC 28443. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
7:15-CV-38-BR
IAN S. GOTTLIEB, as biological father and
next friend of GG and JG,
Plaintiff,
v.
ERIC SCHNEIDERMAN, Attorney General
of New York State; HON. ELLEN
GESMER, Supreme Court of New York
County Justice; and ERICA F. GOTTLIEB,
Defendants.

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ORDER

This case comes before the court on several pending motions: (1) the application of pro
se plaintiff Ian S. Gottlieb (“plaintiff”) to proceed in forma pauperis (“IFP”) (D.E. 1); (2) a
motion by defendant Erica F. Gottlieb (“defendant Gottlieb”) for extension of time for her to file
an answer (D.E. 17); and (3) a motion by plaintiff for entry of default against defendant Gottlieb.
For the reasons set forth below, the motion to proceed IFP will be denied as moot, the motion for
extension of time to file an answer will be allowed, and the motion for entry of default will be
denied.
To establish entitlement to IFP status, an applicant must show that he “cannot because of
his 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. DuPont de Nemours & Co., 335 U.S. 331,
339 (1948) (internal quotation marks omitted). Here, notwithstanding the information submitted
by plaintiff regarding his own financial situation, on 8 July 2015, he paid the required filing fee.
(See D.E. 6). Because the filing fee has since been paid, plaintiff’s motion to proceed IFP is
DENIED AS MOOT.

Upon the payment of the filing fee, plaintiff’s complaint (D.E. 7) was filed and the action
was formally commenced. Defendant Gottlieb was served on 14 July 2015 and her answer was
due on 4 August 2015. Defendant Gottlieb filed the pending motion for extension of time (D.E.
17) on 14 August 2014. In it, she explains that she was not initially able to raise the necessary
funds to retain an attorney to handle her defense and once she retained an attorney, her attorney
had to complete registration with the court in order to file documents electronically. Plaintiff
opposes the motion for extension and in response, moves for entry of default against defendant
Gottlieb. (See Mot. for Entry of Default (D.E. 18); Aff. In Support (D.E. 19)).
Having considered the parties’ submissions, the court finds that good cause has been
shown for the brief extension sought by defendant Gottlieb in light of the excusable neglect
demonstrated. See Fed. R. Civ. P. 6(b)(1)(B). Her motion for extension of time to answer is
accordingly ALLOWED. Defendant Gottlieb shall be permitted until 3 September 2015 to file
an answer or other response to plaintiff’s complaint. In light of the court’s ruling on defendant
Gottlieb’s motion for extension of time to answer, plaintiff’s motion for entry of default is
DENIED.
SO ORDERED, this 28th day of August 2015.

_________________________
James E. Gates
United States Magistrate Judge

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