Walker v. J P Morgan Chase Bank N.A. et al

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATION 5 ; ORDER OF DISMISSAL; ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 5/16/13. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
LINDA WALKER,
Plaintiff,
VS.
J P MORGAN CHASE BANK, N.A.,
ET AL.,
Defendants.

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No. 13-2100-JDT-dkv

ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Plaintiff Linda Walker, a resident of Memphis, Tennessee, filed a pro se civil
complaint on February 15, 2013, and a motion for leave to proceed in forma pauperis.
(Docket Entries 1 & 2.) The Court subsequently granted leave to proceed in forma pauperis.
(D.E. 3.) The case was referred to the U.S. Magistrate Judge on March 27, 2013, for case
management and handling of all pretrial matters by determination or by report and
recommendation, as appropriate. (D.E. 4.) On April 25, 2013, the Magistrate Judge issued
a Report and Recommendation For Sua Sponte Dismissal. (D.E. 5.) Objections to that report
and recommendation were due within 14 days, on or before May 9, 2013. See Fed. R. Civ.
P. 72(b)(2). However, Plaintiff has filed no objections.

Plaintiff’s complaint alleges that the Defendants, J P Morgan Chase Bank, N.A,
United Auto Delivery and Recovery, Inc., and John Does 1 - 20, wrongfully repossessed her
automobile. She asserts claims under the Electronic Funds Transfer Act, 15 U.S.C. § 1693
et seq., and its implementing regulations, known as “Regulation E,” 12 C.F.R. § 205 et seq.;
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.; the Fair Credit Reporting
Act, 15 U.S.C. § 1681 et seq.; and 42 U.S.C. §§ 1983, 1985, 1986 and 1988. Plaintiff also
asserts a claim under Tennessee law for fraud and a claim of automobile theft under Tenn.
Code Ann. § 97-17-42(1).
The Magistrate Judge has recommended dismissal prior to service on the Defendants
for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), and pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter
jurisdiction. Having reviewed the complaint and the law, the Court agrees with the
Magistrate Judge’s recommendation. The Magistrate Judge thoroughly explained her
decision, and the issuance of a more detailed written opinion would be unnecessarily
duplicative and would not enhance this Court’s jurisprudence. Therefore, the Court
ADOPTS the report and recommendation of the Magistrate Judge. For the reasons set forth
in that report and recommendation, this case is DISMISSED for failure to state a claim on
which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and pursuant to Fed.
R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should she seek to do so. Pursuant to the Federal Rules of
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Appellate Procedure, a non-prisoner 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 if a party was permitted to proceed in
forma pauperis in the district court, she 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.”
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 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks
appellate review of any issue that is not frivolous. Id. It would be inconsistent for a court
to determine that a complaint should be dismissed prior to service on the defendants, but has
sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d
1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this
case for failure to state a claim and for lack of subject matter jurisdiction also compel the
conclusion that an appeal would not be taken in good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by
Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is,
therefore, DENIED. Accordingly, 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

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affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.1
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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Pursuant to Fed. R. App. P. 3(a), any notice of appeal should be filed in this Court. A motion to appeal in
forma pauperis then should be filed directly in the United States Court of Appeals for the Sixth Circuit. Unless she
is specifically instructed to do so, Plaintiff should not send to this Court copies of documents and motions intended
for filing in the Sixth Circuit.

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