Athens v. Bank of America — Order (Document 60, December 6, 2021)

Summary

An order in Natasha Athens, d/b/a Favorite Things v. Bank of America, Case No. 21-cv-748-SM, in the U.S. District Court for the District of New Hampshire, dated December 6, 2021 and filed as Document 60. The court finds that the pro se plaintiff's responses do not address the pending motion to dismiss, and that the bank also does not make clear why the determination that the PPP loan does not qualify for forgiveness is plainly correct. It gives the plaintiff a further opportunity to show why the PPP loan is entitled to forgiveness, allowing both sides to file a short supplemental brief on or before December 24, 2021. The order also holds that the plaintiff's interlocutory appeal of the denial of recusal motions does not divest the court of jurisdiction. The signature block names United States District Judge Steven J. McAuliffe.

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          Case 1:21-cv-00748-SM Document 60 Filed 12/06/21 Page 1 of 2



                        UNITED STATES DISTRICT COURT
                          DISTRICT OF NEW HAMPSHIRE


Natasha Athens,
d/b/a Favorite Things
                                                 Case No. 21-cv-748-SM
     v.

Bank of America


                                     ORDER

     Plaintiff’s responses to the pending motion to dismiss do not

address the points raised in the motion.       Plaintiff is pro se and

while her pleadings are lengthy, they do not adequately describe her

legal claims or the factual bases for those claims.       She seems to be

suggesting that the loan she received under the PPP program has been

incorrectly deemed ineligible for forgiveness under that program, but

does not say why that might be so.      For it’s part, the bank also does

not make it clear why, precisely, that it’s determination (or the

SBA’s determination) that the described loan does not qualify for

forgiveness under the program is so plainly correct as to warrant

dismissal.     At bottom, this case appears to be an effort by plaintiff

to challenge the determination that the loan is not entitled to

forgiveness under the law.     Given plaintiff’s pro se status, the court

will extend her a further opportunity to respond to the motion to

dismiss by specifically addressing her apparent claim that her PPP

loan is entitled to forgiveness by clearly pointing out those factors

that establish that entitlement under the applicable law and

regulations.
          Case 1:21-cv-00748-SM Document 60 Filed 12/06/21 Page 2 of 2



      Plaintiff and defendants may, but are not required to, file a

short and concise supplemental brief on or before December 24, 2021.

      The court notes that plaintiff has filed an interlocutory appeal

seeking to challenge the denial of her motions for recusal by the

undersigned and the magistrate judge.

      “Ordinarily, a district judge’s refusal to recuse is reviewable

only on appeal of a final judgment, as the collateral order doctrine

does not apply.     Nevertheless, in unusual situations, interim review

of such refusal is available through writ of mandamus.        See In re

Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir. 1995) (collecting cases).

*** In all events, in recusal cases, mandamus is almost always

withheld – we do not say always – unless the petitioner demonstrates

that it is ‘clearly’ entitled to relief. See Cargill, 66 F.3d at

1262.” In re Martinez-Catala, et al., 129 F.3d 213, 217-18 (1st Cir.

1997).    Accordingly, plaintiff’s having noted an interlocutory appeal

does not operate to divest this court of continuing jurisdiction over

this case.


      SO ORDERED.

                                           ____________________________
                                           Steven J. McAuliffe
                                           United States District Judge

Date: December 6, 2021


cc:      Natasha Athens, pro se
         Thomas J. Pappas, Esq.




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