Albert v. Embassy of Music GMBH

Background

On July 29, 2020, the court granted Marcel Albert’s request to dismiss this case without prejudice. Albert then filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. He asked the district court for permission to pursue the appeal without paying the appellate filing fee.

Albert also filed an emergency motion asking the clerk to transmit and confirm receipt of his notice of appeal and fee-waiver motion by the appeals court. The opinion identifies Albert as representing himself.

Request to Appeal Without Paying the Fee

The court explained that a person seeking to appeal without paying fees must file a motion under Federal Rule of Appellate Procedure 24(a)(1). The motion must provide financial information showing inability to pay, state that the person is entitled to relief, and identify the issues intended for appeal. Albert did not use the required Form 4 or provide all of the requested detail, but the court found that the information he supplied was enough to decide the motion.

Albert reported receiving $35,000 from self-employment and $40,000 in royalties during the previous twelve months. He reported no spouse, children, dependents, or debts, and listed monthly expenses of $2,500 for rent, $400 for utilities, $1,500 for food, and $500 for clothing. He reported having $3,500 in his bank account. The court found that, based on this information, Albert could pay the $505 appellate filing fee without being deprived of life’s necessities.

Ruling

Judge Edward J. Davila denied Albert’s motion for permission to appeal without paying the fee. The court also denied the motion directing the clerk to transmit the filing, finding that the clerk had no obligation to do so and that the motion was procedurally improper.

Under Federal Rule of Appellate Procedure 24(a)(4), the clerk was directed to notify the Ninth Circuit that the request to proceed without paying the fee had been denied. The order stated that Albert could continue the appeal by paying the filing fee or by submitting a request directly to the appeals court under Rule 24(a)(5).