ADA RODRIGUEZ v. CITY OF NEW YORK

Full title: ADA RODRIGUEZ, et ano., Plaintiffs, v. THE CITY OF NEW YORK, et al.…

Court: United States District Court, S.D. New York

Date published: Sep 20, 2004

No. 03 Civ. 0138 (LAK) (S.D.N.Y. Sep. 20, 2004)

Opinion

No. 03 Civ. 0138 (LAK).

September 20, 2004

ORDER

LEWIS KAPLAN, District Judge

By order dated June 10, 2004, this Court granted defendants' motion to dismiss this action with prejudice for failure to prosecute after plaintiffs defaulted on the motion. Judgment of dismissal was entered on June 22, 2004. Plaintiffs filed a notice of appeal on July 20, 2004. They now seek leave to proceed with their appeal from the judgment of dismissal in forma pauperis.

Section 1915(a)(3) of the Judicial Code, 28 U.S.C. § 1915(a)(3), provides in substance that no appeal may be taken in forma pauperis if the district court "certifies in writing that the appeal is not taken in good faith." The standard for determining whether an appeal is taken in good faith is not demanding. All that is required "is a rational argument on the law or facts." Miranda v. United States, 458 F.2d 1179, 1181 (2d Cir.) (quoting Coppedge v. United States, 369 U.S. 438, 448 (1962)), cert. denied, 409 U.S. 874 (1972). This is one of the rare cases in which appellants have not met that standard.

The motion for leave to proceed in forma pauperis states that the appeal seeks to present the issues set out in plaintiffs' Rule 60 motion in this Court, filed August 18, 2004, for relief from the judgment. That motion, however, seeks to demonstrate that both the default on the motion to dismiss and earlier failures by plaintiffs were excusable. It seeks to do so on the basis of matters that were not before the Court on the motion to dismiss.

The question on appeal from the judgment would be whether the record before this Court on June 10, 2004 justified dismissal. Given the record then before the Court, this Court can perceive no rational argument of law or fact for reversal. While it may be that matters outside the record, raised by the Rule 60 motion, would justify relief from the judgment, that evidence was not before the Court. In consequence, this Court certifies that the appeal from the judgment appealed from is not taken in good faith. Whether plaintiffs are entitled to relief from that judgment under Rule 60 is another matter entirely and one that this Court will address in due course.

Motion denied.

SO ORDERED.