Petroceli v. Varengold
- Laura Swain
- 1:21-cv-01212
- U.S. District Court · Southern District of New York
- 3
In Petroceli v. Varengold, Judge Swain denied Petroceli’s reconsideration motion because he did not file the required fee-waiver application.
Domingos Lugao Petroceli’s motion for reconsideration was denied, and his district-court case was closed. The court limited future filings in the action to documents directed to the Second Circuit and denied fee-waiver status for an appeal from this order.
What happened
In Petroceli v. Varengold, the court had previously dismissed Domingos Lugao Petroceli’s complaint without prejudice because he neither submitted an amended application to proceed without paying filing fees nor paid the required fees. Petroceli later asked the court to reopen the case, approve his fee-waiver application, appoint a lawyer, and issue judgment against Varengold.
The court had postponed ruling on his request because his appeal was pending. After the Second Circuit dismissed that appeal for failure to pay the appeal fees or file an application to proceed without paying them, jurisdiction returned to the district court. Petroceli still had not filed the complete and accurate fee-waiver application required by the court’s earlier order.
Judge Swain denied Petroceli’s motion for reconsideration. The case was closed, the court said it would accept only filings directed to the Second Circuit, and it denied fee-waiver status for any appeal from this order because the appeal would not be taken in good faith.
The detailed version
- Petroceli v. Varengold · No. 1:21-cv-01212
- Laura Swain
- Feb. 7, 2022
Background
Domingos Lugao Petroceli filed this action without a lawyer. On May 4, 2021, former Chief Judge Colleen McMahon dismissed the complaint without prejudice because Petroceli had not submitted an amended application to proceed without paying filing fees and had not paid the $402.00 filing fee required for a civil action in the court.
Petroceli filed a notice of appeal, a motion to extend the time to appeal, and an application to proceed without paying fees on appeal. Judge McMahon treated the extension motion as a motion to reopen the time for an appeal and granted it. Petroceli later submitted a request asking the court to reopen the case, approve his application to proceed without paying fees, appoint a volunteer lawyer, and enter judgment against Varengold for damages and alleged violations of consumer, civil, and criminal law.
Earlier district-court order
The court treated Petroceli’s submission as a motion to change or amend the judgment, a motion for reconsideration under the court’s local rules, or, alternatively, a motion seeking relief from the judgment or order. Because the submission was filed more than 28 days after judgment and the appeal was pending, the court determined that it lacked authority at that time to rule on the request.
The court stated that, if the Second Circuit returned authority over the case to the district court and Petroceli filed a complete and accurate application showing that he could not afford the filing fees, it would reopen the action and approve the application. The court would then review the complaint to decide whether it should be dismissed or allowed to proceed.
Ruling
The Second Circuit later dismissed Petroceli’s appeal because he did not pay the appeal fees or file an application to proceed without paying them. This returned authority over the case to the district court. Petroceli had still not filed the required application.
The court therefore denied Petroceli’s motion for reconsideration. The court closed the case, stated that it would accept only documents directed to the Second Circuit, and warned that frivolous or meritless future filings could lead to an order requiring Petroceli to explain why he should not be barred from filing further documents in the action. The court also ruled that any appeal from this order would not be taken in good faith and denied fee-waiver status for that appeal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.