Updated 2016 by Jeffrey S. Gutman
4.3.A. Filing and Service
To file a complaint in federal district court, you must either pay the filing fee of $400 or file a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The district court may have a form “cover sheet” to be filled in by counsel when the complaint is filed. The cover sheet seeks information about the nature of the case and the existence of any related case or cases. Local rules typically define a “related” case. Counsel, not support staff, should complete the cover sheet. Check your local rules and Clerk’s Office regarding policies and procedures for the electronic filing and service of complaints and subsequent filings.
After the complaint is filed, the Clerk issues as many summonses as may be necessary.1 Plaintiff’s counsel is responsible for effecting service of the summonses and complaint within 90 days of filing the complaint.2 Service must be made by a nonparty older than 18.3 Federal Rule of Civil Procedure 4 sets forth the rules for serving individuals, business entities, and governments. Note that following the state law of service is permissible when serving individuals or minors or incompetent persons.4
Federal Rule of Civil Procedure 4(d) encourages individuals, corporations, and associations to waive formal service requirements by imposing the costs of service if they refuse to do so. The request for waiver is initiated by the plaintiff. The plaintiff’s request must (1) be written; (2) conform with the federal “Notice and Request for Waiver” form (Form 5 ), 5 indicating dates and consequences of noncompliance; (3) include a copy of the complaint; (4) contain a copy of the notice; (5) include a prepaid method for the defendant to respond, and (6) be sent by first-class mail or “other reliable means” directly to the individual subject to, or authorized to accept, service.6 Following receipt of the request for waiver, the defendant has thirty days to respond (sixty days if outside the United States) or will be subject to a motion to recover service expenses and costs. If the defendant returns the waiver (Form 6), proof of service is not required, and the defendant has sixty days from the date of request to answer (or ninety days if outside the United States).7 This extended time to answer may counsel against seeking waiver in cases that are time-sensitive.8 This procedure does not apply to cases against the United States, its officers, agents, or other government-related entities.9
The complaint may be supplemented by documentary material. If the case involves regulations, handbooks, or other administrative materials that are not readily available to the judge, reproduce that material in an addendum to the complaint. It is not typical to attach exhibits to a complaint, but consider doing so if there is an unusually significant document that you want the court and the defendant to know of at the outset of the case.
4.3.B. In Forma Pauperis Status
Proceeding in forma pauperis allows your client to avoid service, filing, and transcript preparation costs if the client can demonstrate inability to pay such fees.10 As a result of the Prisoner Litigation Reform Act of 1995, particular IFP requirements apply to prisoners. This subchapter focuses on other IFP filers. The requisite level of indigence is relatively fluid and within the discretion of the court.11 As a baseline, the Supreme Court has held that an applicant need not be "absolutely destitute" to qualify for IFP status.12 Rather, the applicant must show that he cannot "both provide himself with the necessities of life and pay the costs of litigation."13 Several factors that may be relevant are (1) possible aid from friends or relatives, (2) possible aid from charities, (3) regular employment, (4) earning power, (5) unencumbered assets, (6) retention of counsel, and (7) the particular cost relative to the applicant’s financial means. That the applicant is receiving free legal services should not be a relevant factor.14 When filing in forma pauperis, determine whether the district court has a form in forma pauperis package, consisting of a motion, a statement of points and authorities, a declaration of the plaintiff, and a proposed order. If the form does not contain a section for listing liabilities and expenses, and if such information is relevant to the court's consideration of the petition, consider including such information.15 If the court does not supply such forms, you need to submit an affidavit stating your client’s assets and inability to pay, as well as the nature of the action, defense, or appeal and belief that your client is entitled to redress.16
Only natural persons, not groups or associations, may file motions for in forma pauperis status.17 In forma pauperis motions generally are ruled on by a designated judge without a hearing. Unless there is evidence of misrepresentation, the facts asserted are assumed true, leaving the court to decide whether the applicant is unable to pay the fee.18 The complaint is only lodged, not filed, until the motion for leave to proceed in forma pauperis is granted. The Clerk’s Office staff will tell you when to return for your summonses. The U.S. Marshal performs service for plaintiffs proceeding in forma pauperis, but this usually involves much delay.19 Thus, seeking permission from the court to effectuate service yourself may be advisable in cases that are time-sensitive. If the court later determines that the allegations of poverty are untrue, the action is frivolous or malicious, fails to state a claim for which relief can be granted, or monetary redress is being pursued against an individual immune from such relief, the court will dismiss the case.20 Costs may be taxed against an unsuccessful plaintiff who proceeded in forma pauperis.21 Denials of motions for in forma pauperis status are immediately appealable.22
Updated 2016 by Jeffrey S. Gutman
- 1. Fed. R. Civ. P. 4(b).
- 2. Id. 4(c)(1), 4(m). See Zapata v. City of New York, 502 F.3d 192 (2d Cir. 2007), cert. denied, 552 U.S. 1243 (2008). See Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d 1277, 1281-82 (11th Cir. 2007) for a discussion of the circumstances in which good cause would permit an extension of the 120-day service period and the discretion of the court to extend the period in the absence of good cause. See also Coleman v. Cranberry Baye Rental Agency, 202 F.R.D. 106, 109 (N.D.N.Y. 2001).
- 3. Fed. R. Civ. P. 4(c)(2).
- 4. Id. 4(e)(1), 4(g).
- 5. The forms noted in this paragraph will instead be found after Rule 4.
- 6. Fed. R. Civ. P. 4(d)(2).
- 7. Id. 4(d)(3); 12(a)(1)(B).
- 8. If the plaintiff chooses not seek a waiver of service, the costs of service may nevertheless taxed under 28 U.S.C. § 1920 if the plaintiff prevails. Powell v. Carey International, Incorporated, 548 F. Supp. 2d 1351, 1357-58 (S.D. Fla. 2008).
- 9. Lepone-Dempsey, 476 F.3d at 1281 (11th Cir. 2007).
- 10. See 28 U.S.C. § 1915; Neitzke v. Williams, 490 U.S. 319, 324 (1989) (IFP statute intended to give indigent litigants access to federal court).
- 11. See Lewis v. Center Market, Civ. Nos. 09-306, 09-700, 09-701, 09-702 (D.N.M. Oct. 29, 2009) ("[T]he federal standards for IFP are not a bright-line percentage rule, but rather, rely on the discretion of the court.").
- 12. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338-40 (1948).
- 13. United States v. Valdes, 300 F. Supp. 2d 82, 84 (D.D.C. 2004) (denying IFP petition due to resources and income), rev'd on other grounds, 475 F.3d 1319 (D.C. Cir. 2007).
- 14. Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980).
- 15. See Martinez v. Kristi Kleaners, Incorporated, 364 F.3d 1305, 1308 (11th Cir. 2004).
- 16. 28 U.S.C. § 1915(a)(1). While § 1915(a)(1) refers to a "statement of all assets such prisoner possesses," the statement applies to non-prisoners as well. See Floyd v. United States Postal Service, 105 F.3d 274, 275 (6th Cir. 1997); Lewis, Civ. Nos. 09-306, 09-700, 09-701, 09-702.
- 17. Rowland v. California Men’s Colony, 506 U.S. 194, 197 (1993).
- 18. Martinez, 364 F.3d at 1307.
- 19. Garrett v. Miller, 2003 U.S. Dist. LEXIS 5248 at *6, 2003 WL 1790954 (N.D. Ill. Apr. 1, 2003) (plaintiff was granted significant extension of time for service of process in order to accommodate marshal); Fed. R. Civ. P.4(c)(2).
- 20. 28 U.S.C. § 1915(e)(2).
- 21. Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993); 28 U.S.C. § 1915(f).
- 22. See Lister v. Department of Treasury, 408 F.3d 1309, 1310-11 (10th Cir. 2005) ("Although the district court's ruling is not a final order, 'denial by a District Judge of a motion to proceed in forma pauperis is an appealable order' under the Cohen doctrine."); see also Roberts v. United States District Court, 339 U.S. 844, 844 (1950).