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Brown v. Servicing

United States District Court, W.D. Tennessee

April 2, 2015

VERONICA BROWN, Plaintiff,
v.
OCWEN LOAN SERVICING, et al., Defendants.

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

JAMES D. TODD, District Judge.

On March 16, 2015, Magistrate Judge Diane K. Vescovo issued a report and recommendation that Defendants' motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [DE# 17] be granted. Plaintiff did not respond to the motion to dismiss, nor did she file objections to the report and recommendation. Magistrate Judge Vescovo also recommended sua sponte dismissal of the claims against NBC for failure to state a claim upon which relief can be granted.[1] Consequently, the report and recommendation for dismissal of this matter [DE# 20] 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 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 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit5> in the Sixth Circuit Court of Appeals within thirty (30) days.[2]

The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.


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