Stewart v. Bank of America, N.A.

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ROBERT STEWART, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-00699-GMN-NJK 5 vs. ) 6 ) ORDER BANK OF AMERICA, N.A., ) 7 ) Defendant. ) 8 ) 9 10 This matter is before the Court on the U.S. Court of Appeals for the Ninth Circuit’s 11 Referral Notice (ECF No. 54), filed on April 16, 2020. Also before the Court is pro se Plaintiff 12 Robert Stewart’s Motion for Leave to Proceed in forma pauperis on Appeal, (ECF No. 56), 13 filed on May 4, 2020. 14 The Ninth Circuit has instructed this Court to determine whether Plaintiff’s in forma 15 pauperis status should continue for this appeal. “An appeal may not be taken in forma pauperis 16 if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). 17 “In the absence of some evident improper motive, the applicant’s good faith is established by 18 presentation of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674, 674 19 (1958). Like an in forma pauperis complaint, an appeal is frivolous if it lacks an arguable basis 20 in law or fact. O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (citing Franklin v. 21 Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984)). 22 Plaintiff appeals the Court’s Order granting Defendant Bank of America, N.A.’s 23 (“BANA”) Motion to Dismiss and dismissing Plaintiff’s Complaint with prejudice. As stated 24 in the Court’s March 24, 2020 Order, (ECF No. 47), “[j]udicial estoppel will be imposed when 25 the debtor has knowledge of enough facts to know that a potential cause of action exists during 1 the pendency of the bankruptcy, but fails to amend his schedules or disclosure statements to 2 identify the cause of action as a contingent asset.” Hamilton v. State Farm Fire & Cas. Co., 270 3 F.3d 778, 782 (9th Cir. 2001). Here, Plaintiff filed a Chapter 7 Bankruptcy Action and did not 4 disclose the instant case in his bankruptcy schedules and disclosures as required by 11 U.S.C. 5 § 521. Plaintiff is thus judicially estopped from alleging any of causes of action against 6 BANA. Moreover, Plaintiff’s Notice of Appeal, (ECF No. 51), and Motion for Leave to 7 Proceed in forma pauperis on Appeal, (ECF No. 56), do not present any issue that is not plainly 8 frivolous. O’Loughlin, 920 F.2d at 617. Accordingly, the Court certifies that any appeal taken 9 from its March 24, 2020 Order and from the accompanying judgment of this action is not taken 10 in good faith. 28 U.S.C. § 1915(a)(3); Ellis, 356 U.S. 674–75. 11 I. CONCLUSION 12 IT IS HEREBY ORDERED that the Court certifies that Plaintiff’s appeal is not taken 13 in good faith pursuant to 28 U.S.C. § 1915(a)(3). Plaintiff’s Motion to Proceed in forma 14 pauperis on Appeal, (ECF No. 56), is DENIED. 15 DATED this __7__ day of May, 2020. 16 ___________________________________ 17 Gloria M. Navarro, District Judge United States District Court 18

20 21 22 23 24 25