United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
pro se action has been referred to the undersigned
United States magistrate judge for pretrial management under
28 U.S.C. § 636(b) and an order of reference from United
States District Judge Sam A. Lindsay. See Dkt. No.
October 31, 2019, the undersigned entered findings of fact
and conclusions of law (the “FCR”) recommending
that the Court grant Defendants Deutsche Bank National Trust
Company, as Trustee for the Holders of New Century Home
Equity Loan Trust, Series 2005-A Pass-Through Certificates
and Bank of America, N.A.'s motion to dismiss the amended
complaint [Dkt. No. 43], and thus dismiss Plaintiff Bradley
Evans Parsons's claims against them; deny Parsons's
motion to strike the motion to dismiss [Dkt. No. 46]; and
grant in part and deny in part Parsons's Motion to Enter
Document As Evidence and Issue Writ of Execution [Dkt. No.
52]. See Dkt. No. 58. No. objections to the FCR have
been filed. Instead, on November 27, 2019, Parsons filed a
notice of interlocutory appeal as to the FCR. See
Dkt. No. 63. That notice includes a request for leave to
proceed in forma pauperis (“IFP”) on
appeal. See Dkt. No. 64. And the undersigned now
enters these findings of fact, conclusions of law, and
recommendation that the Court should deny that request,
certifying that the appeal is not taken in good faith.
conclusions, and recommendations entered by United States
magistrate judges are not even orders, much less is a
magistrate judge's recommendation an order that
“constitutes a final ‘collateral order'
conferring interlocutory jurisdiction on” the United
States Court of Appeals for the Fifth Circuit. McKee v.
Lang, 393 Fed.Appx. 235, 238 (5th Cir. 2010) (per
curiam) (citing Will v. Hallock, 546 U.S. 345, 349
(2006) (defining an appealable “collateral order”
as an order that conclusively determines an important issue
that is separate from the merits in such a way as to render
the district court's resolution of that issue
unreviewable on appeal from a final judgment)); see also
In re Deepwater Horizon, 793 F.3d 479, 484-85 (5th Cir.
2015) (“Immediately appealable orders include: those
rejecting absolute immunity or qualified immunity; denying a
state's claim to Eleventh Amendment immunity; and - in
the criminal context - a defendant's adverse ruling on a
double jeopardy defense. These types of orders, the Court
explained, implicate weighty public interest concerns: in
each one, ‘some particular value of a high order'
was at issue.” (quoting Will, 546 U.S. at 352;
of appeal from a non-appealable order ... does not render
void for lack of jurisdiction acts of the trial court taken
in the interval between filing of the notice and dismissal of
the appeal.” United States v. Green, 882 F.2d
999, 1001 (5th Cir. 1989); see also Nascimento v.
Dummer, 508 F.3d 905, 909-10 (9th Cir. 2007)
(“[W]hen a litigant makes an improper interlocutory
appeal, such action will not throw a monkey wrench into the
machinery of our justice system. Instead, when an improper
appeal is taken, the district court retains its jurisdiction
to act on the case, and its extant orders must be followed by
the litigants, at risk of grave sanction.”)).
while “[t]here is no docketing fee for an application
for an interlocutory appeal under 28 U.S.C. § 1292(b) or
other petition for permission to appeal under [Federal Rule
Appellate Procedure] 5, unless the appeal is allowed, ”
28 U.S.C. § 1913, Parsons noticed this interlocutory
appeal without requesting certification under Section
1292(b), causing the interlocutory appeal to be docketed by
the Fifth Circuit. See, e.g., Brown v. Hackbarth,
No. 09-C-0519, 2010 WL 3810857, at *1 (E.D. Wis. Sept. 24,
2010) (“No docketing fees are charged for an
application for the allowance of an interlocutory appeal
under § 1292(b) unless the appeal is allowed. However,
in this case plaintiff filed a notice of appeal prior to
requesting certification under § 1292(b), thereby
causing the Seventh Circuit to docket his appeal and
incurring the [ ] filing fee.”).
Court should consider, then, whether proceeding IFP on this
interlocutory appeal is appropriate and, for the reasons set
out above, conclude that it is not and therefore certify
under Federal Rule of Appellate Procedure 24(a)(3)(A) and 28
U.S.C. § 1915(a)(3) that Parsons's interlocutory
appeal is not taken in good faith.
Court should deny Plaintiff Bradley Evans Parsons's
motion for leave to proceed in forma pauperis as to
his interlocutory appeal [Dkt. No. 64] and, for the reasons
stated above, should also certify under Federal Rule of
Appellate Procedure 24(a)(3)(A) and 28 U.S.C. §
1915(a)(3) that Parsons's interlocutory appeal is not
taken in good faith.
of these findings, conclusions, and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of these findings, conclusions,
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to
be specific, an objection must identify the specific finding
or recommendation to which objection is made, state the basis
for the objection, and specify the place in the magistrate
judge's findings, conclusions, and recommendation where
the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from
appealing the factual ...