Reutov v. Future Motion Inc

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

MAXIM REUTOV, Plaintiff,

v. CIVIL ACTION NO. 19-10502-MPK

FUTURE MOTION, INC., Defendant.

ORDER

February 4, 2020

KELLEY, M.J.

On January 31, 2020, pro se plaintiff Maxim Reutov appealed this Court’s Order granting defendant Future Motion, Inc.’s Motion for Summary Judgment. See Docket No. 136 (notice of appeal). On January 6, 2020, the Court granted summary judgment for the defendant based on the doctrine of judicial estoppel, as plaintiff did not disclose his potential lawsuit when he filed for Chapter 7 bankruptcy or at any time during the bankruptcy proceedings. See Docket No. 131 (memorandum and order on defendant, Future Motion, Inc.’s motion for summary judgment). With his notice of appeal, plaintiff filed a motion for leave to appeal in forma pauperis with an accompanying notice of reasons. See Docket Nos. 137 – 138. A litigant who wishes to proceed in forma pauperis on appeal must comply with Rule 24 of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1915. See 28 U.S.C. § 1915; Fed. R. App. P. 24. Under the federal in forma pauperis statute, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Regardless of any subjective good faith on the part of the appellant, “good faith” within the meaning of 28 U.S.C. § 1915(a)(3) is only demonstrated when a litigant seeks “appellate review of any issue not frivolous.” Coppedge v. United States, 369 U.S. 438, 445 (1962). The applicant's good faith is established by the presentation of any issue that is not plainly frivolous. Ellis v. United States, 356 U.S. 674, 674 (1958). An appeal is frivolous “where it lacks an arguable basis either in law or in fact.” Neilzke v. Williams, 490 U.S. 319, 325 (1989). Such is the case here, where defendant’s motion for summary judgment was granted and

the case was dismissed. Despite plaintiff’s argument on appeal, plaintiff’s appeal lacks an arguable basis in law. Accordingly, plaintiff’s motion (Docket No. 137) for leave to appeal in forma pauperis is DENIED. The Court certifies that the appeal is not taken in good faith. This ruling does not preclude Reutov from obtaining permission to proceed on appeal in forma pauperis directly from the United States Court of Appeals for the First Circuit, provided he does so pursuant to Fed. R. App. P. 24(a)(5). The Clerk shall transmit a copy of this Order to the United States Court of Appeals for the First Circuit. SO ORDERED.

/s/ M. Page Kelley M. Page Kelley United States Magistrate Judge