Summary
dismissing bankruptcy appeal on appellant's failure to pay filing fee or proceed in forma pauperis
Summary of this case from Massie v. U.S. Tr.Opinion
No. 05 Civ. 5129 (VM).
July 25, 2005
DECISION AND ORDER
Tolton Najee Smith and Phyllis Sharon Plunkett-Smith ("Appellants") filed this appeal from the Order of the United States Bankruptcy Court for the Southern District of New York ("Bankruptcy Court"), dated December 13, 2004, vacating the automatic stay on all actions pending to evict the Appellants, as such claims pertain to Nagle House, Inc. On May 31, 2005, the Court received notice from the Clerk of the Bankruptcy Court that Appellants had failed to pay the requisite filing fee with the Bankruptcy Court. Appellants have also failed to seek in forma pauperis status.
Parties commencing a civil action in the district court are required to pay a filing fee. See 28 U.S.C. § 1914(a);Michalek v. Ring, No. 96-5139, 1997 WL 738556, at *1 (2d Cir. Nov. 21, 1997). The court can waive the pre-payment of fees in certain circumstances for a person who submits an affidavit stating, among other things, that he "is unable to pay such fees or give security therefor" and allow him to proceed in forma pauperis. 28 U.S.C. § 1915(a)(1). The Appellants in this case have neither paid the requisite filing fee for their appeal from the Bankruptcy Court's Order nor sought to proceedin forma pauperis. The Court, therefore, dismisses the appeal without prejudice. Accordingly, it is hereby,
ORDERED that the appeal of Tolton Najee Smith and Phyllis Sharon Plunkett-Smith ("Appellants") is dismissed without prejudice. The Appellants are ordered to either pay the requisite filing fee or to seek in forma pauperis status to return the appeal to the Court's docket. Should Appellants fail to either pay the fee or move for such status within twenty (20) days of the entry of this Order, the matter shall be deemed dismissed with prejudice for failure to prosecute.
The Clerk of Court is directed to close this case, subject to its being reopened as provided for herein.
SO ORDERED.