R. Prasad Industries v. Flat Irons Environmental Solutions Corporation et al

Filing 140

ORDER, Defendants' Motion for Leave to Proceed In Forma Pauperis 138 is granted in part; Defense Counsel, Mr Frederic M Douglas, is permitted to proceed in forma pauperis on appeal of his sanctions; Defendants' Motion for Leave to Proceed In Forma Pauperis 138 is denied in part; Defendants are not permitted to proceed in forma pauperis on appeal of the Rule 54(b) judgment against their counterclaims. Signed by Senior Judge James A Teilborg on 11/10/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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R. Prasad Industries,

No. CV-12-08261-PCT-JAT
Plaintiff,

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v.

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ORDER

Flat Irons Environmental Solutions
Corporation, et al.,

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Defendants.

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Pending before the Court is Defendants’ Motion for Leave to Proceed In Forma
Paurperis. (Doc. 138). The Court now rules on the Motion.

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The Motion requests leave to appeal, in forma pauperis, this Court’s September

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23, 2014 order granting Plaintiffs’ Motion for Entry of Judgment under Rule 54(b) and

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granting a sanction of attorney’s fees against defense counsel pursuant to 28 U.S.C.

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§ 1927. Defense counsel attached to the Motion his own affidavit showing why he is

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unable to pay or give security for fees and costs.

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Federal Rule of Appellate Procedure 24(a)(1) provides that a party’s motion to

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appeal in forma pauperis is filed with the district court and must be accompanied by an

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affidavit that: “(A) shows in the detail prescribed by Form 4 of the Appendix of Forms

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the party’s inability to pay or to give security for fees and costs; (B) claims an entitlement

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to redress; and (C) states the issues that the party intends to present on appeal.”

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In his affidavit, defense counsel estimates that his and his spouse’s average

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incomes total approximately $5,265 per month, and that he and his spouse will earn

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approximately $4,810 next month. He further declares that he and his spouse average

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approximately $4,601 in expenses per month. Defense counsel also declares that his

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home equity loan payment is scheduled to increase from $300 per month to $600 per

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month in December, 2014, and that he is behind on his mortgage and home equity loan

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payments. Given these financial hardships, the Court finds that defense counsel has

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shown that he is unable to pay or give security for the fees and costs associated with the

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appeal, despite that defense counsel technically earns more than he spends. Defense

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counsel’s affidavit also clearly states the issues he intends to present on appeal and that

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he believes he is entitled to redress. (Doc. 138-1 at 1). Accordingly, insofar as defense

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counsel intends to appeal the sanction against him as a non-party, Rachel v. Banana

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Republic, Inc., 831 F.2d 1503, 1508 n.5 (9th Cir.1987), that request will be granted.

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It appears, however, that Defendants also intend to appeal the dismissal of their

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counterclaim. No party to this suit has filed an affidavit, however, as required by Federal

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Rule of Appellate Procedure 24(a)(1). Accordingly, the Court will not permit Defendants

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to proceed on appeal in forma pauperis.
Accordingly,

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IT IS ORDERED that Defendants’ Motion for Leave to Proceed In Forma

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Pauperis (Doc. 138) is GRANTED IN PART; Defense Counsel, Mr. Frederic M.

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Douglas, is permitted to proceed in forma pauperis on appeal of his sanctions.

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IT IS FURTHER ORDERED that Defendants’ Motion for Leave to Proceed In

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Forma Pauperis (Doc. 138) is DENIED IN PART; Defendants are not permitted to

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proceed in forma pauperis on appeal of the Rule 54(b) judgment against their

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counterclaims.

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Dated this 10th day of November, 2014.

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