December 30, 2013
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
BRYAN S. BEHRENS, et al., Defendants.
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
The Court has received two filings from pro se defendant Bryan S. Behrens: a notice of appeal (filing 393) and a "Motion for leave to Amend Pleading" (filing 394).
The Court understands the defendant's notice of appeal (filing 393) to be an attempt to amend his previously filed notice of appeal (filing 380), to provide a page that was apparently inadvertently omitted. The Court does not understand the defendant to have been trying to initiate a second appeal from the same order. Therefore, the Court has directed the Clerk of the Court to file filing 393 as a supplement to the Court of Appeals' record in the defendant's existing appeal, rather than processing it as a new appeal. To be clear, however: nothing about filing 393 changes the Court's previous Memorandum and Order (filing 384) finding, pursuant to 28 U.S.C. § 1915(a)(3), that the defendant's appeal is not taken in good faith and that he may not appeal in forma pauperis.
The defendant's motion for leave to amend pleading seems to be directed at his Fed.R.Civ.P. 60(b)(4) motion (filing 373). The Court already disposed of that motion. Filing 374. That denial is, in fact, the subject of the defendant's attempt to appeal. See filing 380. The Court will, therefore, deny the motion for leave to amend (filing 394). The motion at issue has already been disposed of, and nothing about the defendant's proposed amendment has any bearing on the Court's basis for rejecting the motion. The defendant's attempt to rearrange the Titanic 's deck chairs would be futile even if the boat hadn't already sunk.
In order to make sure that the record is clear, the Court will direct the Clerk of the Court to provide a copy of this memorandum and order to the Court of Appeals.
IT IS ORDERED:
1. The defendant's motion for leave to amend pleading (filing 394) is denied.
2. The Clerk of the Court is directed to send a copy of this order to the Eighth Circuit Court of Appeals.