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Hilton v. Bedford Paving, LLC

United States District Court, W.D. New York
Feb 2, 2010
08-CV-6552CJS (W.D.N.Y. Feb. 2, 2010)

Summary

holding presumption of receipt three days after issuance rebutted where plaintiffs “submitted sworn affidavits indicating that they never received the right-to-sue letter” and defendants did not “submit any contrary evidence, and ... rel[ied] solely on the ... presumption that Plaintiff received the letter three days after it was dated”

Summary of this case from Weathersbee v. Balt. City Fire Dep't

Opinion

08-CV-6552CJS.

February 2, 2010


ORDER


By order dated December 9, 2009, the above-captioned matter has been referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 9).

This action was filed on December 5, 2008 by pro se plaintiff Ronnie Hilton ("Hilton"). (Docket # 1). On December 29, 2008, United States District Judge Richard J. Arcara granted Hilton's motion for leave to proceed in forma pauperis. (Docket # 4). On April 3, 2009, counsel appeared on behalf of Hilton. (Docket # 5). Currently pending before this Court is defendants' motion to rescind Hilton's in forma pauperis status on the basis that an attorney has appeared on Hilton's behalf. (Docket # 8).

The court may authorize the commencement of a lawsuit without prepayment of fees upon a person's showing that the person is "unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a). Hilton has submitted an updated in forma pauperis affidavit indicating that his financial condition has not changed since he originally filed the motion. (Docket # 14). In addition, during a telephone conference with this Court, Hilton's counsel represented that Hilton has not compensated him for his services. Thus, this Court declines to disturb the District Court's order on the basis that Hilton has secured counsel because there has been no showing that Hilton no longer financially qualifies to proceed in forma pauperis.

Defendants argue that Local Rule of Civil Procedure 5.2(c) provides that only pro se litigants may apply for in forma pauperis status. (Docket # 8). A review of 28 U.S.C. § 1915 reveals that the statute does not preclude represented parties from proceeding in forma pauperis. This Court declines to interpret the local rule in a more restrictive manner than the authorizing statute.

For the foregoing reasons, defendants' motion to rescind Hilton's in forma pauperis status (Docket # 8) is DENIED.

IT IS SO ORDERED.


Summaries of

Hilton v. Bedford Paving, LLC

United States District Court, W.D. New York
Feb 2, 2010
08-CV-6552CJS (W.D.N.Y. Feb. 2, 2010)

holding presumption of receipt three days after issuance rebutted where plaintiffs “submitted sworn affidavits indicating that they never received the right-to-sue letter” and defendants did not “submit any contrary evidence, and ... rel[ied] solely on the ... presumption that Plaintiff received the letter three days after it was dated”

Summary of this case from Weathersbee v. Balt. City Fire Dep't

In Hilton v. Bedford Paving, LLC, 769 F.Supp. 2d 92, 99 (W.D.N.Y. 2010), plaintiffs' sworn affidavits indicating that they never received a right-to-sue letter were sufficient, absent any contrary evidence, to rebut the three-day-presumption.

Summary of this case from Schmidt v. Town of Cheverly

allowing a Title VII claim to proceed where plaintiff and counsel both submitted sworn affidavits stating neither received the right-to-sue letter and where defendant merely relied upon the presumption of receipt

Summary of this case from Capobianco v. Sandow Media Corp.
Case details for

Hilton v. Bedford Paving, LLC

Case Details

Full title:RONNIE HILTON, Plaintiff, v. BEDFORD PAVING, LLC, HUDSON PAVING AND…

Court:United States District Court, W.D. New York

Date published: Feb 2, 2010

Citations

08-CV-6552CJS (W.D.N.Y. Feb. 2, 2010)

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