Rolex Watch U.S.A., Inc. v. Barrett et al

Filing 42

Order Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Appeal not certified to be taken in good faith. Signed by Chief Judge Barbara B. Crabb on 10/9/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------R O L EX WATCH U.S.A., INC., ORDER Plaintiff, 09-cv-025-slc v. V IN C EN T F. BARRETT a/k/a VINCE KONICEK, individually and d/b/a WWW.PROLESREPLICA.COM, W W W .M AG N ET IC S ER V IC ES .C O M , "VINCENTERPRISE"' "M A G N ET IC JEWELRY ORIGINALS PLUS MAGNETIC HEALING AIDS", "THE COMPLETE MAGNETIC HEALTH S T O R E ", UNKNOWN WEBSITES 1-10, UNKNOWN ENTITIES 1 -1 0 , and "JOHN DOES" 1-10, Defendants. --------------------------------------------O n March 11, 2009, I entered default judgment in this case against defendant Vince K o nicek entering a permanent injunction and awarding money damages to plaintiff. On Ap ril 6, 2009, I entered an order finding defendant in contempt for failure to comply with the judgment. N ow defendant has filed a notice of appeal of the judgment. Because he has not paid th e $455 fee for filing a notice of appeal, I construe the notice as including a request for

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leave to proceed in forma pauperis on appeal. As an initial matter, I note that defendant's appeal may be untimely. However, only the court of appeals may determine whether it has jurisdiction to entertain an appeal. Hyche v. Christensen, 170 F.3d 769, 770 (7th Cir. 1999). The district court's role with respect to an appeal is limited. A district court has authority to deny a request for leave to proceed in form a pauperis under 28 U.S.C. § 1915 for one or more of the following reasons: the litigan t wishing to take an appeal has not established indigence, the appeal is in bad faith or if the litigant is a prisoner and has three strikes. § 1915(a)(1), (3) and (g). Sperow v. M elvin, 153 F.3d 780, 781 (7th Cir 1998). D efendant's request for leave to proceed in forma pauperis on appeal will be denied, b e cause I am certifying that his appeal is not taken in good faith. He has no legally m eritoriou s basis for the appeal. Because I am certifying defendant's appeal as not having been taken in good faith, he can n o t proceed with his appeal without prepaying the $455 filing fee unless the court of appeals gives him permission to do so. Pursuant to Fed. R. App. P. 24, defendant has 30 days from the date of this order in which to ask the court of appeals to review this court's denial of leave to proceed in forma pauperis on appeal. His motion must be accompanied by an affidavit as described in the first paragraph of Fed. R. App. P. 24(a), including a statem en t of issues that defendant intends to present on appeal. Also, defendant's motion

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m ust be accompanied by a copy of this order. Defendant should be aware that these do cum ents should be filed in addition to the notice of appeal he has previously filed. If defendant does not file a motion requesting review of this order, the court of appeals may not address the denial of leave to proceed in forma pauperis on appeal. Instead, it may requ ire defendant to pay the entire $455 filing fee before it considers his appeal. If

defendant fails to pay the fee within the deadline set, it is possible that the court of appeals w ill dismiss the appeal.

OR DER IT IS ORDERED that request of defendant Vince Konicek for leave to proceed in form a pauperis on appeal, dkt. #38, is DENIED. I certify that his appeal is not taken in goo d faith. Entered this 9t h day of October, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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