Parker v. Homecomings Financial, LLC et al

Filing 32

ORDER granting 17 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 17 Motion to Dismiss for Failure to State a Claim.. Signed by Judge S. Thomas Anderson on 2/12/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

TAMISHA PARKER,
Plaintiff,
vs.
HOMECOMINGS FINANCIAL, LLC,
et al.,
Defendants.

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No. 11-2626-STA-dkv

ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER OF DISMISSAL WITH PREJUDICE
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On July 25, 2011, Plaintiff Tamisha Parker, a resident of
Cordova, Tennessee, filed a pro se Complaint to Restrict and
Prohibit Foreclosure, Motion to Set Aside Foreclosure & for Damages
and

Demand

for

Trial

against

Homecomings

Financial,

LLC

(“Homecomings”); Mortgage Electronic Registration System, Inc.
(“MERS”); and Wilson & Associates, PLLC (“Wilson”), accompanied by
a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 &
2.) On July 25, 2011, the Court granted leave to proceed in forma
pauperis. (ECF No. 3.) In an order issued on July 6, 2012, the

Court directed the Clerk to issue process and the marshal to serve
the named defendants. (ECF No. 5.)1
On September 4, 2012, Defendants Wilson and MERS filed a
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. (ECF No. 17.) Because Plaintiff did not respond to
that motion, the Court issued an order on December 4, 2012,
directing Plaintiff to show cause, within fourteen (14) days, why
the motion to dismiss filed by Wilson and MERS should not be
granted. (ECF No. 26.) Plaintiff was informed that “[a] failure
timely to respond to this order will result in the dismissal of
Plaintiff’s claims against Wilson and MERS with prejudice, pursuant
to Federal Rule of Civil Procedure 41(b).” (Id. at 2.) Plaintiff
did not respond to the show cause order, and the time for a
response has expired.
Plaintiff also did not appear for a scheduling conference
before United States Magistrate Judge Diane K. Vescovo on November
30, 2012. (See ECF No. 25.) Magistrate Judge Vescovo issued a show
cause order on November 30, 2012, directing Plaintiff to appear and
show cause on December 14, 2012, at 9:00 a.m., why the case should
not be dismissed for failure to prosecute. (ECF No. 24.) Plaintiff
was cautioned that “[f]ailure to respond to this show cause order
will result in dismissal of the action without further notice from
the court.” (Id. at 1.) The show cause hearing was subsequently

1

That order also
defendants. (Id. at 2 n.1.)

dismissed

2

the

claims

against

the

“John

Doe”

reset to January 4, 2013 at 1:30 p.m. (ECF No. 27.) Plaintiff did
not appear at that hearing.
Magistrate Judge Vescovo issued a report and recommendation
(“R&R”) on January 4, 2013, recommending that the case be dismissed
with prejudice for failure to prosecute. (ECF No. 31.) Plaintiff
did not file written objections to the R&R.2 Therefore, the Court
ADOPTS the R&R and DISMISSES the claims against all parties WITH
PREJUDICE. The Court also DISMISSES the claims against Wilson and
MERS WITH PREJUDICE due to Plaintiff’s failure to respond to the
motion to dismiss and the resulting show cause order. The pending
motion to dismiss is DENIED as moot. Judgment shall be entered for
Defendants.
The Court must also consider whether Plaintiff should be
allowed to appeal this decision in forma pauperis, should she 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.”

2

A case note on the docket reflects that Plaintiff appeared at 2:00
p.m. on January 4, 2013, after the conclusion of the show cause hearing, and
explained that she had locked her keys in her car. Plaintiff was notified that
the hearing had concluded and that Defendants had moved for dismissal of the
case. Plaintiff stated that she intended to file a written response or
explanation, but she failed to do so.

3

Pursuant to the Federal Rules of Appellate Procedure, a nonprisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status under Federal Rule of Appellate Procedure
24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir.
1999). Rule 24(a) provides that if a party seeks pauper status on
appeal, she must first file a motion in the district court, along
with a supporting affidavit. Fed. R. App. P. 24(a)(1). However,
Rule 24(a) also provides that if the district court certifies that
an appeal would not be taken in good faith, or otherwise denies
leave to appeal in forma pauperis, the litigant must file her
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 (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. The same considerations that lead the Court to
dismiss the action for failure to prosecute 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 Plaintiff would not be taken in good faith

4

and Plaintiff may not proceed on appeal in forma pauperis. Leave to
proceed on appeal in forma pauperis is, therefore, DENIED.3
IT IS SO ORDERED this 12th day of February, 2013.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

3
If Plaintiff files a notice of appeal, she 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 (30) days.

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