Albert v. Embassy of Music GMBH ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 MARCEL ALBERT, 8 Case No. 5:19-cv-06652-EJD Plaintiff, 9 ORDER DENYING MOTION FOR v. LEAVE TO APPEAL IN FORMA 10 PAUPERIS AND DENYING MOTION EMBASSY OF MUSIC GMBH, et al., TO DIRECT CLERK TO TRANSMIT 11 IFP MOTION Defendants. 12 Re: Dkt. Nos. 70, 73 13 On July 29, 2020, the Court granted Plaintiff’s motion to dismiss this case without 14 prejudice (Dkt. No. 67) and shortly thereafter Plaintiff filed a notice of appeal to the United States 15 Court of Appeals for the Ninth Circuit. Dkt. No. 68. On August 9, 2020, Plaintiff filed a motion 16 in this Court for leave to appeal in forma pauperis (“IFP”). Dkt. No. 70. For the reasons stated 17 below, Plaintiff’s motion is DENIED. 18 Individuals must pay a $505.00 filing fee to commence an appeal in the Court of Appeals. 19 Under the Federal Rules of Appellate Procedure (“FRAP”), a party who is unable to pay the fees 20 may file a motion in the district court for leave to appeal IFP. In order to proceed IFP on appeal, a 21 party must comply FRAP 24(a)(1), which provides: 22 Except as stated in Rule 24(a)(3), a party to a district-court action who desires to 23 appeal in forma pauperis must file a motion in the district court. The party must 24 attach an affidavit that: 25 (A) shows in the detail prescribed by Form 4 of the Appendix of Forms the 26 party's inability to pay or to give security for fees and costs; 27 Case No.: 5:19-cv-06652-EJD 1 (B) claims an entitlement to redress; and 2 (C) states the issues that the party intends to present on appeal. 3 Fed. R. App. P. 24(a)(1). Plaintiff has failed to do so. First, he has not utilized Form 4, nor 4 provided the detail otherwise necessary to demonstrate his inability to pay or give security for fees 5 and costs. Plaintiff has instead completed and provided the district court’s application to proceed 6 IFP. Although that form does not contain all of the information required under FRAP 24, the 7 Court finds the information provided sufficient to render a decision on Plaintiff’s motion. 8 Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 9 116 (9th Cir. 1965); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“court permission 10 to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma 11 pauperis status does not violate the applicant's right to due process”). Leave to proceed IFP is 12 properly granted only when the plaintiff has both demonstrated poverty and presented a claim that 13 is neither factually nor legally frivolous. See Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 14 1370 (9th Cir. 1987). A party need not be completely destitute to proceed IFP. Adkins v. E.I. 15 DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). However, “[i]f an applicant has the 16 wherewithal to pay court costs, or some part thereof, without depriving himself and his dependents 17 (if any there be) of the necessities of life, then he should be required, in the First Circuit’s phrase, 18 to ‘put his money where his mouth is.’” Williams v. Latins, 877 F.2d 65 (9th Cir. 1989). The 19 determination as to whether a plaintiff is indigent and therefore unable to pay the filing fee falls 20 within the court’s sound discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 21 Cir. 1991) (reversed on other grounds). 22 Plaintiff’s motion indicates that in the last twelve months he has received $35,000 from his 23 self-employment and an additional $40,000 from royalties. He is not married, does not have any 24 children or dependents, and does not have any debts. Plaintiff asserts that his monthly expenses 25 consist of $2500 for rent, $400 for utilities, $1500 for food, and $500 for clothing. Plaintiff does 26 not provide any additional detail explaining why his monthly food and clothing expenses are so 27 Case No.: 5:19-cv-06652-EJD 1 high, nor why he claims to have only $3500 in his bank account despite earning $75,000 in the last 2 || year. Based on this information alone, it is clear to the Court that Plaintiff is able to pay the $505 3 || filing fee on appeal without depriving himself of the necessities of life. Therefore, Plaintiff’ 4 || motion for leave to appeal IFP is DENIED. 5 Plaintiff additionally filed an “Emergency Motion To Direct This Honorable Clerk Of 6 |} Court Demanding That Notice Of Appeal & IFP Motion In Regards To Same (#70) Properly And 7 || Timely Filed By Pro Se Plaintiff Be Transmitted, And Confirmed Received By The Clerk Of 8 || Court For The USCA In Regards To Docket #71.” Dkt. No. 73. The Clerk is under no obligation 9 || to transmit Plaintiff’s motion to the Court of Appeals. The motion is procedurally improper and is 10 || DENIED. 11 Pursuant to FRAP 24(a)(4), the Clerk shall notify the Court of Appeals that Plaintiff's 12 || motion for leave to appeal IFP has been denied. In order to proceed with his appeal, Plaintiff may 13 either pay the filing fee or submit a motion in the court of appeals pursuant to FRAP 24(a)(5).' IT IS SO ORDERED. 3 15 Dated: August 12, 2020 EDWARD J. DAVILA 17 United States District Judge 18 19 20 21 22 3 ' The Federal Rules of Appellate Procedure and the Ninth Circuit Rules are available on the Ninth 24 Circuit website, at https://www.ca9.uscourts.gov/rules/. Plaintiff is encouraged to consult the 25 Rules in advance of future filings. Plaintiff may also find it helpful to consult the Ninth Circuit’s 26 || structions for pro se litigants, available at 97 || □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Case No.: 5:19-cv-06652-EJD 28 || ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS AND DENYING MOTION TO DIRECT CLERK TO TRANSMIT IFP MOTION