NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

IN RE GREGG F. WULSTER, : Bankruptcy No. 09-13388 (MBK)

: Adv. Proc. No. 09-2015 (MBK)

Debtor. :

 :

:

GREGG F. WULSTER, : CIVIL ACTION NO. 11-3407 (MLC)

:

Appellant, : OPINION, ORDER, &

: ORDER TO SHOW CAUSE

v. :

:

KAREN PFEIFFER, :

:

Appellee. :

 :

THE APPELLANT, who is pro se, seeks to appeal from an order

of the United States Bankruptcy Court. (See dkt. entry no. 1,

Notice of Appeal.) The appellant applies to waive the filing fee

for the appeal under 28 U.S.C. § (“Section”) 1915 (“Application”). 

(See dkt. entry no. 5, Appl.) The appellant properly filed the

Application in the United States District Court, rather than in

the Bankruptcy Court. See Countryman v. Prue, 343 B.R. 904, 906

(N.D. Ind. 2006) (stating bankruptcy court lacks authority to

permit appellant to waive filing fee for appeal). This Court,

based upon a review of the Application presenting the appellant’s

financial situation, will (1) grant the Application, and (2) deem

the notice of appeal to be filed.

THE COURT may now (1) review the appeal, and (2) dismiss it

sua sponte if it is frivolous or malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief

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against an appellee who is immune from such relief. See 28

U.S.C. § 1915(e)(2)(B); Roper v. Garden Ridge Corp. (In re Garden

Ridge Corp.), Nos. 06-555 & 06-723, 2009 WL 62442, at *1-3

(D.Del. Jan. 9, 2009) (reviewing appeal’s merits after granting

bankruptcy appellant’s application to waive filing fee); In re

Evans, No. 06-547, 2007 WL 2020166, at *1 (N.D. Fla. July 9,

2007) (adopting Magistrate Judge’s report and recommendation,

found at 2007 WL 1430264 (N.D. Fla. May 9, 2007), which granted

bankruptcy appellant’s application to waive filing fee and then

discerned appeal’s merits).

THE COURT thus will set a briefing schedule, whereupon the

appellant will show cause why (1) the appeal should not be

dismissed as being frivolous or malicious, for failing to state a

claim on which relief may be granted, or seeking monetary relief

against an appellee who is immune from such relief, or in the

alternative (2) the order appealed from should not be affirmed. 

See Fed.R.Bankr.P. 8009, 8010. The Court will also provide the

appellee with an opportunity to respond. This schedule will

override any schedule set by the Office of the Clerk of the

District Court.1

FOR GOOD CAUSE APPEARING:

 On the District Court docket, there is a document listed 1

as the Appellant’s Brief. (See dkt. entry no. 4.) However, that

document appears to be addressed to the Bankruptcy Court, and not

the District Court. In addition, it was filed before the

Application was considered.

2

Case 3:11-cv-03407-MLC Document 6 Filed 11/16/11 Page 2 of 4 PageID: 59
IT IS THEREFORE on this 16th day of November, 2011,

ORDERED that the application pursuant to 28 U.S.C. § 1915 to

waive the filing fee (dkt. entry no. 5) is GRANTED; and

IT IS FURTHER ORDERED that the Clerk of the Court FILE THE

NOTICE OF APPEAL without the prepayment of fees or costs; and

IT IS FURTHER ORDERED that the appellant will SHOW CAUSE why

the appeal should not be dismissed, or in the alternative why the

order appealed from should not be affirmed; and 

IT IS FURTHER ORDERED that the parties, if responding, must

file briefs with the Office of the Clerk of the District Court by

the following dates:

December 5, 2011 Appellant’s brief

December 22, 2011 Appellee’s response

January 6, 2012 Appellant’s reply; and

IT IS FURTHER ORDERED that any briefs must be filed with the

Office of the Clerk of the District Court, and not with the

Office of the Clerk of the Bankruptcy Court; and

IT IS FURTHER NOTED that “filed” does not mean “mailed”, and

that the briefs must actually be in the possession of the Office

of the Clerk of the District Court by the dates so deemed; and

IT IS FURTHER ORDERED that no briefs will be filed by

facsimile, and the Office of the Clerk of the District Court will

not accept any briefs submitted by facsimile for filing; and

3

Case 3:11-cv-03407-MLC Document 6 Filed 11/16/11 Page 3 of 4 PageID: 60
IT IS FURTHER ORDERED that if the appellant fails to timely

file a brief in response hereto, then the appellant will be

deemed to be in support of dismissal of the appeal; and

IT IS FURTHER ORDERED that this matter will be decided after

January 6, 2012, without oral argument pursuant to Federal Rule

of Bankruptcy Procedure 8012.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

4

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