Lewis v. Despos, LLC et al
| Scott Phillip Lewis |
| Despos, LLC doing business as Dunny's, Caffe Rustica, LLC, Scott Heggelke and Eden Elkasasny |
| 8:2024cv00079 |
| January 17, 2024 |
| US District Court for the Northern District of New York |
| Christian F Hummel |
| Anne M Nardacci |
| Labor: Fair Standards |
| 15 U.S.C. ยง 1938 Fair Labor Standards Act |
| Plaintiff |
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Filing 6
TEXT ORDER denying #5 Letter Motion: Plaintiff filed a letter request on January 23, 2024, asking the Court to proceed with the issuance of summonses on the defendants. Dkt. No. 5. Plaintiff contends that the pending Motion for Leave in Forma Pauperis in this matter does not impact the issuance of a summons and contends that the Court must issue summonses pursuant to Rule 4 of the Federal Rules of Civil Procedure. Id. Plaintiffs complaint and in forma pauperis application are currently pending before the Court for review pursuant to 28 U.S.C. section 1915. As Northern District of New York Local Rule 5.1.4 provides, Prior to the Marshal serving process pursuant to 28 U.S.C. 1915(d) and L.R. 5.1(e), the Court shall review all actions filed pursuant to 28 U.S.C. 1915(g) to determine whether sua sponte dismissal is appropriate. Although the language of 29 U.S.C. 1915 suggests an intent to limit availability of in forma pauperis status to inmates, see 28 U.S.C. 1915(a)(1) (authorizing the commencement of an action without prepayment of fees by a person who submits an affidavit that includes a statement of all assets such prisoner possesses), courts have construed 28 U.S.C. 1915(a)(1) as making in forma pauperis status available to any litigant who can meet the governing financial criteria. See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). Accordingly, a financial assessment must be performed for all plaintiffs seeking to proceed in forma pauperis. If, after performing the in forma pauperis review, the Court has determined the plaintiff to be financially qualified to proceed in forma pauperis, the Court must then perform an initial review of the complaint pursuant to section 1915 in order to determine whether the complaint (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2)(B). This initial review of the complaint is required for any plaintiff who seeks to proceed in forma pauperis, regardless of their incarceration status. Thus, summonses are not issued in any case where a review of an in forma pauperis application is pending and would be issued only if, after performing initial review of the complaint pursuant to section 1915, the Court determines that the complaint may proceed. Accordingly, insofar as plaintiff seeks the Court to issue summonses on defendants prior to the Courts review of plaintiffs in forma pauperis application and before the Court determines whether the complaint may proceed, that request (Dkt. No. 5) is DENIED. Plaintiffs complaint and in forma pauperis application is before the Court for review and will be determined in due course and in the order that it was received. Authorized by Magistrate Judge Christian F. Hummel on 1/30/2024. (Copy served via regular mail on 1/30/2024)(tab)
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| Filing 5 LETTER REQUEST FOR ISSUANCE OF SUMMONSES: Scott Phillip Lewis, Pro Se, is requesting summonses be issued as to Despos, LLC; Caffe Rustica, LLC; Scott Heggelke and Eden Elkasasny. (Attachments: #1 Proposed Summons as to Despos, LLC, #2 Proposed Summons as to Caffe Rustica, LLC, #3 Proposed Summons as to Scott Heggelke, #4 Proposed Summons as to Eden Elkasasny) Filed via MFT on 1/23/2024. (kck). |
| Filing 4 PRO SE NOTICE signed by Scott Phillip Lewis. (Attachments: #1 Cover Letter) [Filed via MFT on 1/18/2024.](hmr) |
| Filing 3 PRO SE HANDBOOK and NOTICE issued and explained to Scott Phillip Lewis at time complaint was filed. [A copy of the Pro Se Notice was mailed to pro se plaintiff on 1/18/2024.] Pro Se plaintiff stated that he previously received the pro se handbook and local rules and does not need any copies sent to him. (hmr) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis filed by Scott Phillip Lewis (Attachments: #1 Proposed Summons for Despos, LLC, #2 Proposed Summons for Caffe Rustica, LLC, #3 Proposed Summons for Scott Heggelke, #4 Proposed Summons for Eden Elkasasny) Motions referred to Christian F. Hummel. (hmr) |
| Filing 1 COMPLAINT with Jury Demand against Caffe Rustica, LLC, Despos, LLC, Eden Elkasasny, Scott Heggelke filed by Scott Phillip Lewis. (Attachments: #1 Civil Cover Sheet)(hmr) Modified on 1/18/2024 (hmr). [Filed via MFT on 1/17/24.] |
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