Opinion
12-CV-6121 (SIL)
11-16-2016
THEODORE STAIR, individually, THEODORE STAIR, an Officer, Director and Shareholder of American Virgin Enterprises, Ltd., Derivatively on behalf of American Virgin Enterprises, Inc., and THEODORE STAIR, a Member of Sirius Development, LLC, derivatively on behalf of Sirius Development, LLC, Plaintiffs, v. RORY CALHOUN, JOHN HANRAHAN, ROBERT E. PARELLA, and H. LINWOOD GILBERT, Defendants.
ORDER
Presently before the Court are two motions by Plaintiff Theodore Stair ("Plaintiff" or "Stair") for leave to proceed on appeal in forma pauperis. See Docket Entries ("DE") [87, 89]. Plaintiff seeks in forma pauperis status on appeal of two prior Orders of this Court: (1) the May 4, 2015 Order, DE [70], denying Stair's request for an extension of time to serve Defendant H. Linwood Gilbert ("Gilbert") and dismissing all claims against Gilbert pursuant to Rule 4(m) of the Federal Rules of Civil Procedure (the "May 4, 2015 Order"); and (2) the March 31, 2015 Order, DE [64], granting Defendants Rory Calhoun's ("Calhoun") and Robert Parella's ("Parella") motion for summary judgment and dismissing all claims against them with prejudice as time barred (the "March 31, 2015 Order"). For the reasons set forth below, Plaintiff's motions are granted.
Although Stair is named as a party in three different capacities, he is referred in the singular as "Stair" or "Plaintiff" throughout the opinion.
The Court notes that embedded within Plaintiff's motions are two documents titled "Statement in Support of Motion for Appointment of Counsel." See May 4, 2015 Order at 14; March 31, 2015 Order at 11. Both requests, however, appear to be directed to the Second Circuit and were not filed as independent motions. As such, the Court declines to consider these applications. --------
I. LEGAL STANDARD
Motions to proceed in forma pauperis on appeal "must be made in the first instance to the district court." In re Nassau Cty. Strip Search Cases, No. 99-CV-2844, 2010 WL 4021813, at *1 (E.D.N.Y. Sept. 29, 2010). Pursuant to Federal Rule of Appellate Procedure ("Fed. R. App. P.") 24, a party making such motion must attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal.Fed. R. App. P. 24(a)(1). "This threshold level for permitting persons to proceed in forma pauperis is not very great and doubts about the substantiality of the issues presented should normally be resolved in the applicant's favor." Bishop v. Henry Modell & Co., No. 08 CIV. 7541, 2010 WL 1790385, at *1 (S.D.N.Y. May 4, 2010) (quoting Miranda v. United States, 458 F.2d 1179, 1181 (2d Cir.1972)). However, a plaintiff may not appeal in forma pauperis if the District Court certifies in writing that the appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3).
II. DISCUSSION
A. The May 4 , 2015 Order
Initially, Stair seeks leave to proceed in forma pauperis on appeal of the May 4, 2015 Order. See DE [87]. This is Plaintiff's second appeal and in forma pauperis application in connection with this Order. Indeed, eight days after the May 4, 2015 Order was issued, Stair filed an appeal and moved the District Court to proceed on appeal in forma pauperis, which was granted by the Honorable Sandra J. Feuerstein. See DE [73, 74, 75]. The appeal, however, was dismissed by the Second Circuit because a final order had not yet been issued in this action. See DE [78]. Nonetheless, on October 17, 2016, Plaintiff again appealed the May 4, 2015 Order and moved for leave to proceed on such appeal in forma pauperis. See DE [87, 88]. This current motion to proceed in forma pauperis is almost identical to the prior motion. Accordingly, for the same reasons as set forth in Judge Feuerstein's decision granting the previous in forma pauperis application, DE [75], the Court grants Stair's motion to proceed in forma pauperis on his appeal of the May 4, 2015 Order.
B. The March 31 , 2015 Order
Stair also seeks leave to proceed in forma pauperis on an appeal of the March 31, 2015 Order. DE [89]. Plaintiff also previously appealed this Order, which was likewise denied due to a lack of finality, and moved to proceed on appeal in forma pauperis. DE [65, 66]. Judge Feuerstein denied the prior in forma pauperis application, as Stair failed to provide a sworn affidavit, did not explain the issues he intended to present on appeal, and did not provide a level of detail regarding his inability to pay. See DE [69]. Stair recently appealed the March 31, 2015 Order for a second time, and again moves for leave to appeal in forma pauperis. See DE [89, 90]. Contrary to his prior application, Stair now submits in support of his motion a sworn affidavit explaining: (1) his entitlement to redress; (2) the issues he intends to appeal; and (3) a financial affidavit, akin to the one submitted in connection with his motion for leave to appeal in forma pauperis the May 4, 2015 Order. See DE [89]. As Plaintiff has met the requirements of Fed. R. App. P. 24, the Court also grants this motion.
III. CONCLUSION
For the reasons set forth above, Plaintiff's Motions for Leave to Proceed on Appeal In Forma Pauperis are granted. Dated: Central Islip, New York
November 16, 2016
SO ORDERED
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge