Dillard v. Bank of America, N.A. et al

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE FOR DISMISSAL AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH 21 . Signed by Judge James D. Todd on 8/28/13. (Todd, James)

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

RENATA DeALEAN DILLARD,

)
)
Plaintiff,
)
)
VS.
)
)
BANK OF AMERICA, N.A.; THE BANK )
OF NEW YORK MELLON TRUST, N.A., )
F/K/A THE BANK OF NEW YORK;
)
HSBC BANK USA, N.A.; MORTGAGE )
ELECTRONIC REGISTRATION
)
SYSTEMS, INC.; RUBIN LUBLIN
)
TN, PLLC.,
)
)
Defendants.
)

No. 13-2253-JDT-dkv

ORDER ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE FOR DISMISSAL
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

On August 1, 2013, Magistrate Judge Diane K. Vescovo issued a report and
recommendation that the motions to dismiss filed by Defendants in this matter [DE#s 5, 10,
16] be granted and that the pro se complaint be dismissed as barred by the doctrine of res
judicata. No objection has been filed. Consequently, the report and recommendation for
dismissal of this matter [DE# 21] is ADOPTED, and the case is hereby DISMISSED.
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
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) 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 party 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 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 district
court to determine that a complaint should be dismissed for failure to state a claim based on
the doctrine of res judicata 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 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

2

affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.1
IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

1

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 intended for filing in
the Sixth Circuit.

3