United States District Court, D. Hawaii
M.P.I. LTD. TRUST; DAVID DOUGLAS KROMER, TRUSTEE, Appellants,
HOWARD M.S. HU, TRUSTEE, et al., Appellees. Bankr. No. 17-00245
ORDER DENYING APPLICATION TO PROCEED IN FORMA
Derrick K. Watson, United States District Judge.
September 13, 2017, one of the Appellants in this bankruptcy
appeal, David Douglas Kromer, Trustee, purportedly on behalf
of Appellant M.P.I. Ltd. Trust, filed in United States
Bankruptcy Court, District of Hawaii: (1) a Notice of Appeal
And Statement Of Election, and (2) an Application To Proceed
In District Court Without Prepaying Fees Or Costs, seeking to
proceed in forma pauperis on appeal (“IFP
Application”). Federal courts can authorize the
commencement of any suit without prepayment of fees or
security by a person who submits an affidavit that
demonstrates he or she is unable to pay. See 28
U.S.C. § 1915(a)(1). “An affidavit in support of
an IFP application is sufficient where it alleges that the
affiant cannot pay the court costs and still afford the
necessities of life.” Escobedo v. Applebees,
787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v.
E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339
(1948)); see also United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (The affidavit must “state the
facts as to affiant's poverty with some particularity,
definiteness and certainty.”) (internal quotation
reviewing an application filed pursuant to Section 1915(a),
“[t]he only determination to be made by the court . . .
is whether the statements in the affidavit satisfy the
requirement of poverty.” Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S.
at 339, the applicant must nonetheless show that he or she is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
Kromer states in the IFP Application only that “fee
waiver under Rules for waiver of fees for a Trust state that
has no money [sic], ” and, that Kromer is
“applying in the capa[c]ity of the Trustee, not as an
individual.” Although Kromer did not complete the
portions of the IFP Application indicating whether (1) he,
individually, (2) the Trust itself, or (3) any other
applicant has any wages, other income, or assets in support
of his request, he does declare: “This is a Trust[.]
[T]he Trust Estate has no money and because land lord did not
check box as a residence with guilty knowledge it was my home
I got evicted with only the shirt on my back and threat of
arrest if I did not leave immediately.”
to the extent the IFP Application seeks to “waive fees
for a Trust . . . that has no money, ” the request is
denied. The statutory text of Section 1915(a) provides that a
court may authorize court proceedings without prepayment by a
“person” who is unable to pay the fees. 28 U.S.C.
§ 1915(a). The Supreme Court has held that Section 1915
applies only to “natural persons, ” and declined
to extend in forma pauperis status to other legal
entities. Rowland v. Cal. Men's Colony, Unit II
Men's Advisory Council, 506 U.S. 194, 198-201 (1993)
(observing that the relevant congressional history lacked any
indication Congress contemplated the term
“person” to include legal
to the extent Kromer seeks to proceed without paying the
costs of this appeal, he fails to establish that he
individually cannot pay the court costs and still afford the
necessities of life. See, e.g., 2017 HHS
-of-the-hhs-poverty-guidelines (indicating that the poverty
threshold for a one-person household in Hawaii is $13, 860).
Kromer makes vague allegations that the Trust is
without assets and that he has been evicted, the IFP
Application is incomplete with respect to his individual
assets and liabilities. His declaration regarding Trust
assets also appears to be contradicted by his filings in the
bankruptcy court. In sum, Kromer fails to establish that he
cannot both pay the costs of litigating this case “and
still be able to provide himself . . . with the necessities
of life.” See Adkins, 335 U.S. at 339
(internal quotation marks omitted). Accordingly, the Court
finds that Kromer has not made the required showing under
Section 1915 to proceed without prepayment of fees, and
DENIES his IFP Application. If Kromer wishes to proceed with
this appeal, he must either (1) re-submit a fully executed
IFP Application or (2) remit the appropriate filing fee by
October 16, 2017. Failure to do so will
result in the automatic dismissal of this action.
Clerk of Court is DIRECTED to send Kromer a copy of this
Order and the Court's Application to Proceed in forma
pauperis with the accompanying information sheet.
Kromer is GRANTED until October 16, 2017 to
(a) pay the filing fee; or to (b) submit a completed and
executed application to proceed in forma pauperis on
the form provided by the court with this Order.
Failure to timely file an in forma pauperis
application or to pay the applicable filing fee by
October 16, 2017 will result in AUTOMATIC
DISMISSAL of this action.
The Notice of Appeal and IFP
Application were transmitted to this district court on
September 14, 2017, and the instant civil action was opened
on September 15, 2017. See Dkt. No. 1-1 (IFP
Application) and Dkt. No. 1-2 (Notice of Appeal). The IFP
Application is properly before the district court, rather
than the bankruptcy court. See In re Perroton, 958
F.2d 889, 896 ...