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United States v. Swafford

March 22, 2007

UNITED STATES OF AMERICA
v.
JOSEPH SWAFFORD AND JES, INC., D/B/A BROADWAY HOME AND GARDEN CENTER



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

ORDER

Before the Court is the pro se motion of defendant JES, Inc., d/b/a/ Broadway Home and Garden Center ("JES") filed by its sole stockholder, defendant Joseph Swafford ("Swafford") on January 10, 2007 (Court File No. 220). This motion requests (1) court-appointed appellate counsel, (2) leave to proceed in forma pauperis on appeal, and (3) a reasonable extension of the time in which to perfect an appeal (id. at ¶¶ 1-3). On January 22, 2007, United States Magistrate Judge Susan K. Lee issued a report and recommendation ("R&R") (Court File No. 222) addressing JES's motion, as well as a motion by JES to dismiss its current counsel due to JES's lack of funds (Court File No. 219) and a motion by JES to consolidate its appeal with defendant Swafford's appeal (Court File No. 218).

On February 8, 2007, JES filed a statement of objections (Court File No. 224) to the R&R. This Court notes the objections were untimely as having been filed more than ten days after the R&R was issued. As the R&R itself stated, failure to file objections within the time specified waives JES's right to appeal this Court's order. Thomas v. Arn, 474 U.S. 140, 149 n.7 (1985). Furthermore, this Court need not review the R&R de novo under the stricture of 28 U.S.C. § 636(b)(1)(C) if objections to it are frivolous, conclusive and general. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). This Court finds JES's objections are frivolous, as they cite inapplicable case law and fail to address the controlling law, made clear by the United States Supreme Court in Rowland v. California Men's Colony, 506 U.S. 194, 197-98, 201-02 (1993) (holding only natural person may be granted in forma pauperis status and a corporation cannot appear in federal court except through its attorney).

This Court ACCEPTS and ADOPTS the magistrate judge's Report and Recommendation (Court File No. 222) pursuant to 28 U.S.C. § 636(b)(1)(C). Accordingly,

(1) JES's request to proceed in forma pauperis on appeal is DENIED;

(2) JES's request that this Court appoint appellate counsel is DENIED without prejudice to JES's right to raise this issue before the United States Court of Appeal for the Sixth Circuit;

(3) JES's request for an extension of time to perfect an appeal is STRICKEN as MOOT; and

(4) JES's motion for joinder or consolidation of the appeals is DENIED without prejudice to JES's right to raise this issue before the Sixth Circuit.

SO ORDERED.

CURTIS L. COLLIER CHIEF UNITED STATES DISTRICT JUDGE

20070322

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