Brewster et al v. Wells Fargo Bank, N.A. et al
Filing
8
ORDER GRANTING DEFENDANTS MOTION TO DISMISS 5 , ORDER OF DISMISSAL, ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge J. Daniel Breen on 9/12/12. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
)
(
(
)
)
(
Plaintiffs,
(
)
)
(
v.
(
)
)
(
WELLS FARGO BANK, N.A., et al., (
)
)
(
Defendants.
(
)
)
(
PATRICIA BREWSTER, et al.,
No. 11-1232-JDB-egb
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On August 3, 2011, the Plaintiffs, Patricia Brewster, who is
suing as grantor for the Estate of Patricia Brewster, and Edwin:El,
who
is
suing
as
executor
for
the
estate
of
Alloidial
Asset
Management, filed a pro se civil complaint for violation of Article
I, Section 10 of the United States Constitution for impairment of
contract, breach of fiduciary responsibilities, violation of truth
in lending, illegal securitization, and 42 U.S.C. §§ 241 and 242
against Wells Fargo Bank, N.A. (“Wells Fargo”) and Howard Adkins,
former chief financial officer of Wells Fargo.
(“D.E.”) 1.)
1
Plaintiffs paid the civil filing fee.
(Docket Entry
(D.E. 2.)1
On September 6, 2011, Plaintiffs filed a notice of removal that
purported to remove to federal court an action they commenced in the General
Sessions Court for Hardin County, Tennessee against Wells Fargo and Adkins.
(D.E. 4.) That document is of no legal force and effect. Under 28 U.S.C. §
(continued...)
This action arises out of the nonjudicial foreclosure of real
property purchased by Brewster and her late husband with a loan
from Wells Fargo.
Plaintiffs’ eighty-two-page complaint, which is
largely unintelligible, purports to assert the following claims:
“Defendant’s [sic] Issue With Un-Reportable Income and Unpaid
Federal Taxes” (Count 1, D.E. 1 at pp. 4-6); “Defendant’s [sic]
Issue
With
Illegal
Securitization”
(Count
2,
id.
at
6-7);
“Defendant’s Issue With Enforceability” (Count 3, id. at 7-9);
“Defendant’s Issue With Imposed Restrictions” (Count 4, id. at 911); “Defendant’s Issue With Non Consent and TILA Violation on NonDisclosure of Material Facts that Rendered the Mortgage with No
Rights of Redemption” (Count 5, id. at 11-12); “Defendants [sic]
Issue With No Consideration offered to Participate in an Investment
Scheme that Enriched Defendants and Outside Investor Who Were Not
a Part of the Initial Contract” (Count 6, id. at 12); “Defendant’s
[sic]
Issue
With
Modification
of
the
Mortgage
Without
Full
Disclosure” (Count 7, id. at 12-13); “Defendant’s Issue With
Violations of Fraudulent Conveyance Constituting Mortgage Fraud”
(Count 8, id. at 13-14); “Defendant’s Issue of No Standing After
1
(...continued)
1441(a),
[e]xcept as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a) (emphasis added). The statute does not authorize a plaintiff
to remove a case he himself has commenced in state court. Santiago v. Chandler,
Civ. Action No. 3:06-CV-P408-S, 2006 WL 2583715, at *1 (W.D. Ky. Sept. 7, 2006).
2
Conversion of the Note to a Security Because Securitization Removes
the Status of the Note Holder” (Count 9, id. at 14-16); “Issue With
Defendant as Note Holder” (Count 10, id. at 16); “Defendant’s Issue
With Unauthorized Use of Exemption Theft of Credit and Title to
Property” (Count 11, id. at 16-17); “Defendant’s Issue With Alleged
Payments by Third Party Managers” (Count 12, id.
“Defendant’s
[sic]
Issue
With
Unilateral
at 17-18);
Agreements
Void
of
Enforceability and Authority to Foreclose” (Count 13, id. at 1819); and “Defendant’s [sic] Issue With (FASB) 95, Footnote (1)”
(Count 14, id. at 19-21).
The remainder of the complaint consists of various arguments,
unconnected to any cause of action, namely, (I) “Executor’s Demand
for Delegation of Authority of Defendant Regarding Unauthorized
Administration of the Estate of Patricia Brewster” (id. at 21-22);
(II) “Defendant’s Violation of 18 U.S.C., Section 241, ‘Conspiracy
Against Rights’” (id. at 22-23); (III) “Defendant’s Violation of 18
U.S.C. Section 242, Deprivation of Rights ‘Under Color of Law’”
(id. at 23-26); (V) “Plaintiff Alleges: No Money in Circulation”)
(id. at 26-27)2; (IV) “Plaintiffs’ Demand for the Production of the
Note” (id. at 27-32); (VI) “Plaintiff’s Demand for Securitization
Documents” (id. at 32-33); (VII) “Illegal Securitazation” (id. at
33-39); (XIII) “Defendant’s Failure to Deposit Note” (id. at 3940); (IX) “Plaintiff’s Claim of Source of Funds” (id. at 40-41);
(X) “Plaintiff’s Demand for Documents as Provided by RESPA” (id. at
41-43); (XI) “Mortgage Fraud under the Uniform Fraudulent Transfer
2
The Court has reproduced the numbering used in the complaint.
3
Act at Chapter 923a Any Attempt to Sell, Reconvey, Assign Any
Property Would Be a Violation of Uniform Mortgage Transfer Act”
(id. at 43); (XII) “Any Attempt to Violate Any of the Following
Will Be Guilty of Residential Mortgage Fraud” (id. at 44); (XIII)
“Plaintiff’s Demand for Writ in the Nature of Discovery” (id. at
44-46); (XIV) “Plaintiff Alleges Violations of TILA” (id. at 4647); (XV) “Uniform Commercial Code and the Securities and Exchange
Commission Code are the Legal Jurisdiction in this Securitization
Defense” (id. at 47-48); (XVI) “Plaintiff’s Claim of Authority as
Secured Party Creditor and Sponsor of the Credit” (id. at 48-52);
(XVII)
“Financial
Accounting
Standards
Board
(FSAB
[sic])
95
Section” (id. at 52); (XVIII) “Plaintiff’s Demand for Commercial
Dishonor Settlement” (id. at 52-59); (XIX) “Quiet Title” (id. at
59); (XX) “Who is the Alleged Holder-in-Due-Course” (id. at 60-68);
(XIX) “Defendant’s Notice to Respond” (id. at 68-69); (XX) “Remedy”
(id. at 69-70); (XXI) “Waiver of Tort” (id. at 70); “Warning” (id.
at
70-71);
(XXIII)
“Damages
Sought”
(id.
at
71-72);
(XXIV)
“Administrative Remedy Procedure” (id. at 73); (XXV) “Estoppel By
Acquiescence” (id. at 73-75); (XXVI) “Accounting and True Bill”
(id. at 75-77); and (XXVIII) “Deadline For Payment” (id. at 77-78).
On November 10, 2011, Defendants filed a motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
4
(D.E. 5.)3
Brewster responded to the motion on December 23, 2011.
(D.E. 6.)4
Defendants filed a reply on January 6, 2012.
(D.E. 7.)
Before addressing Defendants’ motion, it is first necessary to
discuss the proper parties to this action.
suing
on
their
own
behalf
but,
rather,
Plaintiffs are not
in
a
representative
capacity. As previously noted, however, a pro se litigant can only
represent his or her own interests. Brewster cannot proceed pro se
on behalf of the estate of Patricia Brewster,5 and Edwin:El cannot
3
Pursuant to the Court’s previous Local Rule (“LR”) 4.1, summonses
have not been issued. Because the case will be dismissed for the reasons stated
herein, it is unnecessary to order Plaintiffs to effect service on Defendants.
4
Brewster’s response was purportedly filed on behalf of herself and
Edwin:El, but a party in federal court must proceed either through licensed
counsel or on his or her own behalf. See 28 U.S.C. § 1654. A pro se litigant
can only represent her own interests, Shepherd v. Wellman, 313 F.3d 963, 970-71
(6th Cir. 2002), reh’g denied (Feb. 24, 2003), and can only sign pleadings on her
own behalf, Garrison v. Fleet Fin., Inc., ___ F. App’x ___, 1999 WL 282626, at
*1 (6th Cir. Apr. 30, 1999) (“The signing and filing of a notice of appeal on
behalf of another by a person who is not a qualified attorney is ineffective to
vest an appellate court with jurisdiction.”); Johns v. Cnty. of San Diego, 114
F.3d 874, 876 (9th Cir. 1997) (“While a non-attorney may appear pro se on his own
behalf, he has no authority to appear as an attorney for others than himself.”);
Cochran v. Nelson, ___ F. App’x ___, 1994 WL 28648, at *3 (6th Cir. Feb. 1, 1994)
(“Because Virgil Cochran is not an attorney, he may not represent his son in
federal court.”); Peak v. Smith, ___ F. App’x ___, 1992 WL 60194, at *1 (6th Cir.
Mar. 27, 1992) (“As an initial matter, we recognize this appeal as brought only
by plaintiffs Peak and Crowhorn as they were the only parties to sign the notice
of appeal. As plaintiff Duncan failed to sign the notice of appeal, he failed
to effectuate an appeal. In addition, Peak and Crowhorn are not permitted to
plead or conduct the case for others because they are not attorneys. Therefore,
the only plaintiffs before this court as appellants are Peak and Crowhorn.”),
cert. denied sub nom. Crowhorn v. Smith, 505 U.S. 1208, 112 S. Ct. 3002, 120 L.
Ed. 2d 877 (1992). Therefore, only Brewster has responded to the motion to
dismiss.
5
It is doubtful whether the Estate of Patricia Brewster is a proper
party to this lawsuit. Brewster is, plainly, not dead and cannot act as the
executor of her own estate. Even if that defect were overlooked, an executor of
an estate cannot proceed pro se unless she is the sole beneficiary and the estate
has no creditors. See Guest v. Hansen, 603 F.3d 15, 19 (2d Cir. 2010); Shepherd,
313 F.3d at 970 (“Gary Shepherd cannot proceed pro se with respect to the § 1983
action because he is not the sole beneficiary of the decedent’s estate.”). Wells
Fargo is a creditor of Brewster. The Estate is also alleged to have undisclosed
beneficiaries. (See D.E. 1 at 2.)
5
sue on behalf of Alloidal Asset Management unless it is a sole
proprietorship.
See Knoefler v. United Bank of Bismark, 20 F.3d 347, 348
(8th Cir. 1994), reh’g & suggestion for reh’g en banc denied (May 13, 1994); C.E.
Pope Equity Tr. v. United States, 818 F.2d 696, 697-98 (9th Cir. 1987); Retired
Persons Fin. Servs. Clients Restitution Tr. v. United States Attorney for N.
Dist. of Tex., No. 3:03-CV-2658-D, 2004 WL 937170, at *1 (N.D. Tex. Apr. 29,
2004) (report & recommendation); Keyway Leasing Tr. v. United States, No. 1:98CV-796, 1999 WL 810386, at *1 (W.D. Mich. Aug. 26, 1999).
Had this matter
continued, Plaintiffs would have been required to retain counsel if
the Estate of Patricia Brewer or Alloidal Asset Management actually
existed and had an interest in this suit.6
Because they did not
respond to the motion, the claims brought by Alloidal Asset
Management and Edwin:El are DISMISSED pursuant to Federal Rule of
Civil Procedure 41(b).
In their motion, Defendants assert that the complaint fails to
comply with Fed. R. Civ. P. 8(a)(2) and that it should be dismissed
under Rule 12(b)(6) for failure to state a claim on which relief
may be granted. (D.E. 5-1.) In assessing whether the complaint in
this case states a claim on which relief may be granted, the Court
applies the standards under Rule 12(b)(6) as stated in Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) and
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007).
“Accepting all well-pleaded allegations
6
The complaint does not disclose that Alloidal Asset Management or
Edwin:El have any interest in the property at issue or any claims against
Defendants. Attached to the motion to dismiss is a copy of a deed of trust,
which reflects that the borrowers were Kenneth Brewster and Patricia Brewster,
as husband and wife. (D.E. 5-2.) Edwin:El also has not responded to the motion.
6
in
the
complaint
as
true,
the
Court
considers
the
factual
allegations in the complaint to determine if they plausibly suggest
an entitlement to relief.”
Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011) (internal quotation marks & alterations omitted).
“[P]leadings that . . . are no more than conclusions[] are not
entitled to the assumption of truth.
While legal conclusions can
provide the framework of a complaint, they must be supported by
factual allegations.”
Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950;
see also Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at 1965 n.3
(“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket
assertion,
of
entitlement
to
relief.
Without
some
factual
allegation in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the
nature
of
the
claim,
but
also
‘grounds’
on
which
the
claim
rests.”).
Rule 8(a)(2) requires “[a] pleading that states a claim for
relief” to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”7
Fed. R. Civ. P.
8(a). A complaint violates these provisions when it “is so verbose
that the Court cannot identify with clarity the claim(s) of the
pleader
merits.”
and
adjudicate
such
claim(s)
understandingly
on
the
Harrell v. Dirs. of Bur. of Narcotics & Dangerous Drugs,
70 F.R.D. 444, 446 (E.D. Tenn. 1975); see also Flayter v. Wis.
Dep’t of Corr., 16 F. App’x 507, 508-09 (7th Cir. 2001) (noting
7
See also Fed. R. Civ. P. 8(d)(1) (“Each allegation must be simple,
concise, and direct.”).
7
that plaintiff's 116-page complaint violated Rule 8(a)(2)); Vicom
v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 775-76 (7th Cir.
1994) (criticizing district court for declining to dismiss 119-page
amended complaint with prejudice pursuant to Rule 8(a) and noting
that “[a] complaint that is prolix and/or confusing makes it
difficult for the defendant to file a responsive pleading and makes
it difficult for the trial court to conduct orderly litigation");
Plymale v. Freeman, ___ F. App’x ___, 1991 WL 54882, at *1 (6th
Cir.) (district court did not abuse its discretion in dismissing
with prejudice “rambling” 119-page complaint containing nonsensical
claims on Rule 8 grounds), cert. denied, 502 U.S. 958, 112 S. Ct.
418, 116 L. Ed. 2d 438 (1991); Jennings v. Emry, 910 F.2d 1434,
1436 (7th Cir. 1990) (“A . . . complaint must be presented with
intelligibility
sufficient
for
a
court
or
opposing
party
to
understand whether a valid claim is alleged and if so what it is.
And it must be presented with clarity sufficient to avoid requiring
a district court or opposing party to forever sift through its
pages in search of that understanding.”); Michaelis v. Neb. State
Bar Ass’n, 717 F.2d 437, 438-39 (8th Cir. 1983) (per curiam)
(affirming dismissal of 98-page complaint where “[t]he style and
prolixity of these pleadings would have made an orderly trial
impossible”); Gordon v. Green, 602 F.2d 743, 744-45 (5th Cir. 1979)
(4,000-page pleading, comprised of “various complaints, amendments,
amended amendments, amendments to amended amendments, and other
related papers,” did not comply with Rule 8(a) “as a matter of
law”); Windsor v. A Fed. Exec. Agency, 614 F. Supp. 1255, 1257-58
8
(M.D. Tenn. 1983) (ordering plaintiff to amend his complaint to
comply with Rule 8 because a forty-seven-page complaint is not
required to state a simple claim and because the complaint “is
confusing and distracting”), aff’d ___ F. App’x ___, 1985 WL 13427
(6th Cir. June 27, 1985) (per curiam).
Federal courts have not hesitated to dismiss lawsuits by pro
se litigants challenging foreclosures on this basis.
For example,
one district court in this circuit recently stated as follows:
Even under the lenient standards governing pro se
pleadings, Plaintiff’s complaint in this case is an
incomprehensible grab-bag of disjointed references to
various statutes, treaties, legal doctrines, judicial
rulings, and the like. Similarly, Plaintiff has eschewed
any sort of straightforward response to Defendants’
motions, and instead has submitted over 70 pages of
documents bearing such captions as “affidavit of fact,”
“writ in the nature of discovery,” and “legal notice of
removal.” The Court appreciates that the legal system
can be difficult for a layperson to navigate, but the
rules of pleading are designed to facilitate access to
the courts by pro se litigants without the need for
specialized legal training or expertise, requiring only
a “short and plain statement” of the grounds for relief.
Plaintiff has made no effort to satisfy this standard,
but instead appears intent on obscuring the nature of and
factual basis for his claims in this case. Moreover, he
cites a litany of state and federal laws — e.g., criminal
statutes that do not confer a private right of action —
without any attempt to allege facts that might forge a
link between these laws and a viable cause of action.
Under this record, no amount of liberal construction
of Plaintiff’s pro se submissions can rescue this suit
from dismissal. While it is evident that Plaintiff is
dissatisfied with the outcome of the state court tax
foreclosure and landlord/tenant proceedings, it is far
less clear how he proposes to forge a link between this
dissatisfaction and a viable cause of action that lies
within this Court’s subject matter jurisdiction.
Instead, for the reasons identified in Defendants’
motions and discussed above, the Court finds that
Plaintiff’s complaint must be dismissed.
9
Nassar El v. Smith, No. 11-11957, 2012 WL 313985, at *3 (E.D. Mich.
Jan. 31, 2012) (internal citations omitted); see also Samples v.
Bank of Am., N.A., No. 3:12-CV-44, 2012 WL 1309135, at *3 (E.D.
Tenn. Apr. 16, 2012) (dismissing complaint under Rules 8(a) and
12(b)(6) where “[t]he specific factual allegations of the complaint
consist of, at most, two sentences relating to the Property and the
origination of plaintiff’s loan” and the remainder of the complaint
addresses “the mortgage industry, mortgage-backed securities, and
allegations of misconduct against the mortgage industry and its
processes as a whole” with no discussion of the allegedly wrongful
conduct of the defendant and its impact on plaintiffs); Bajwa v.
John Adams Mortg. Co., No. 11-CV-12183-DT, 2011 WL 6009266, at *5
(E.D. Mich. Nov. 30, 2011) (dismissing certain claims in action
challenging a foreclosure as incomprehensible); Smith v. MERS, No.
10-12508, 2011 WL 4469148, at *3-4 (E.D. Mich. Aug. 4, 2011)
(noting "it is not the role of the court to guess the nature of the
claim(s) asserted"), report & recommendation adopted by 2011 WL
4479481 (E.D. Mich. Sept. 27, 2011); Sherman v. Saxon Mortg.
Servs., Inc., No. 10-2282-STA-tmp, 2010 WL 2465459, at *5 (W.D.
Tenn. June 14, 2010) (dismissing pro se complaint on numerous
grounds, including failure to comply with Rule 8(a)).
As Defendants note, Plaintiffs’ complaint is incomprehensible.
It is not explained how Edwin:El has standing to sue.
1-2.)
(D.E. 5-1 at
No basis is offered for why Plaintiff Brewster is suing as
the “Grantor” of her estate.
(Id. at 2.)
The complaint “lacks any
identifiable allegations to inform the purpose or nature of the
10
lawsuit”
and
identified.”
“not
(Id.;
a
single
see
also
coherent
id.
at
claim
5.)
can
be
Despite
readily
scattered
references to various federal statutes, such as 18 U.S.C. § 241
(Compl. at 22-23), 18 U.S.C. § 242 (Compl. at 23-24), the Truth in
Lending Act (Compl. at 11, 26, 35), the “National Banking Act,
House Joint Resolution-102 of June 5, 1933 and public [sic] Law 7310” (Compl. at 27), the Privacy Act, 5 U.S.C. ” 552(b)(4) (Compl.
at 32, 35), and the Real Estate Settlement Practices Act (Compl. at
41), the complaint does not assert a coherent claim under any of
these statutes.8
Brewster’s response to the motion to dismiss was not timely,
and she has not explained her belatedness or her failure to request
an enlargement of time.9
In her response, Plaintiff does not
explain how Edwin:El has standing to sue or why she is suing as a
“Grantor” of her estate.
Brewster also does not argue that her
complaint satisfies the requirements of Rule 8(a)(2) or that one or
more of the claims asserted are colorable.
Instead, Brewster
states that she and Edwin:El “have stated a complaint and will
restate it in a plain sentence to aid in understandability”:
8
Plaintiff cannot sue Defendants under 18 U.S.C. §§ 241 and 242, which
are federal criminal statutes. In general, criminal statutes do not give rise
to a private cause of action and cannot be a basis for a private civil action.
Walker v. Hastings, Civ. No. 09-CV-074-ART, 2009 WL 2914402, at *4 (E.D. Ky.
Sept. 4, 2009). There is no private right of action under 18 U.S.C. §§ 241 and
242. Booth v. Henson, 290 F. App’x 919, 920-21 (6th Cir. 2008); United States
v. Oguaju, 76 F. App’x 579, 581 (6th Cir. 2003).
9
A response to a motion to dismiss is due twenty-eight
service of the motion. LR 12.1(b). Three days are added because of
of service.
Fed. R. Civ. P. 6(d).
The motion to dismiss was
Plaintiffs by first class mail on November 10, 2011. (D.E. 5 at 2.)
will exercise its discretion, in this instance only, to consider the
response.
11
days after
the manner
served on
The Court
late-filed
“[l]oan has been subjected to securitization and that is the reason
why Wells Fargo can not present the ‘original note,’ they do not
have it because they no longer own it.
Therefore had no standing
to foreclose, and that is why it is respectfully requested this
Motion to Dismiss be denied.”
(D.E. 6 at 2.)
No explanation is
supplied for why securitization of a loan destroys standing to
sue.10
As noted in the reply (D.E. 7 at 2), the argument presented
in the response to the motion to dismiss was not coherently stated
in the complaint and, therefore, it may not be considered in
evaluating the sufficiency of the pleading.
Brewster also has not
offered to file an amended complaint that states a colorable claim.
For the foregoing reasons, the Court GRANTS Defendants’ motion
to dismiss and dismisses the complaint with prejudice.
Judgment
shall be entered for Defendants.
The Court must also consider whether Plaintiffs should be
allowed to appeal this decision in forma pauperis, should they seek
to do so.
The United States Court of Appeals for the Sixth Circuit
requires that all district courts in the circuit determine, in all
cases where the appellant seeks to proceed in forma pauperis,
whether the appeal would be frivolous.
Twenty-eight U.S.C. §
1915(a)(3) provides that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not
taken in good faith.”
10
The explanation in the complaint is incoherent. (See Compl. at 610.) The pleading also asserts a claim seeking production of the note, but the
legal theory is indecipherable. (See id. at 26-27.)
12
Pursuant to the Federal Rules of Appellate Procedure, a nonprisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status under Fed. R. App. P. 24(a).
See Callihan v.
Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999).
Rule 24(a)(3)
provides that a party who was permitted to proceed in forma
pauperis in the district court may also proceed on appeal in forma
pauperis without further authorization unless the district court
“certifies that the appeal is not taken in good faith . . . or . .
. finds that the party is not otherwise entitled to proceed in
forma pauperis.”
Fed. R. App. P. 24(a)(3)-(4).
If the district
court denies pauper status, the party may file a motion to proceed
in forma pauperis in the court of appeals.
Fed. R. App. P.
24(a)(4)-(5).
The good faith standard is an objective one.
Coppedge v.
United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d
21 (1962).
The test under 28 U.S.C. § 1915(a) for whether an
appeal is taken in good faith is whether the litigant seeks
appellate review of any issue that is not frivolous.
Id., 82 S.
Ct. at 921. The same considerations that lead the Court to dismiss
this case for failure to state a claim also compel the conclusion
that an appeal would not be taken in good faith.
It is therefore
CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in
this matter by Plaintiffs would not be taken in good faith and
13
Plaintiff may not proceed on appeal in forma pauperis.
Leave to
proceed on appeal in forma pauperis is, therefore, DENIED.11
IT IS SO ORDERED this 12th day of September 2012.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
11
If Plaintiffs file a notice of appeal, they must also pay the full
$455 appellate filing fee or file a motion to proceed in forma pauperis and
supporting affidavit in the United States Court of Appeals for the Sixth Circuit
within thirty days.
14
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