Perry et al v. Fantasy Records et al

Filing 114

ORDER. Signed by Judge Saundra Brown Armstrong on 6/5/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 6/5/2014)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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BARNEY PERRY/PERRYAL MUSIC

Case No: C 13-1158 SBA

9 COMPANY,

ORDER
Plaintiffs,

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vs.

12 FANTASY RECORDS, SAUL ZAENTZ

COMPANY and PAUL ZAENTZ,
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Defendants.
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On March 18, 2013, Magistrate Judge Nathanael Cousins granted Plaintiffs’

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application to proceed in forma pauperis. Dkt. 5. On May 23, 2013, this action was

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reassigned to the undersigned. On February 14, 2014, the Court issued an order dismissing

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this action with prejudice on the ground that Plaintiffs are barred from litigating the claims

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alleged in the complaint under the doctrine of res judicata. Dkt. 91. On April 25, 2014, the

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Court denied Plaintiff Barney Perry’s motion to reopen the case, which the Court construed

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as a motion for reconsideration brought under Rule 59(e) and/or Rule 60(b) of the Federal

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Rules of Civil Procedure. Dkt. 110. On May 19, 2014, Plaintiffs filed a notice of appeal.

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Dkt. 111. On May 28, 2014, the Ninth Circuit issued a Referral Notice, referring the matter

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to this Court for the limited purpose of determining whether in forma pauperis status should

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continue on appeal or whether it should be revoked on the ground that the appeal is

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frivolous or taken in bad faith. Dkt. 113.

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Under Rule 24 of the Federal Rules of Appellate Procedure, “[a] party who was
permitted to proceed in forma pauperis in the district-court action . . . may proceed on

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appeal in forma pauperis without further authorization, unless . . . the district court . . .

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certifies that the appeal is not taken in good faith . . . and states in writing its reasons for the

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certification. . . .” Fed.R.App.P 24(a)(3). The Ninth Circuit has construed “not taken in

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good faith” to mean frivolous. See Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th

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Cir. 2002) (stating that “[i]f at least one issue or claim is found to be non-frivolous, leave to

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proceed in forma pauperis on appeal must be granted for the case as a whole”). An action

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is “frivolous” for purposes of § 1915 if it lacks any arguable basis in law or fact. Neitzke v.

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Williams, 490 U.S. 319, 325, 327 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th

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Cir. 1984).

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Here, the Court finds that Plaintiffs’ appeal is frivolous. Plaintiffs’ claims fail as a

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matter of law because they are barred by the doctrine of res judicata. Accordingly, the

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Court CERTIFIES that Plaintiffs’ appeal is not taken in good faith. Pursuant to Federal

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Rule of Appellate Procedure 24(a)(4), the Clerk of the Court is instructed to immediately

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notify the parties and the Ninth Circuit that this Court has certified in writing that the

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appeal is not taken in good faith. See Fed.R.App.P. 24(a)(4).

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IT IS SO ORDERED.
Dated: 6/5/2014

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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