Chapter 4:
Drafting and Filing the Complaint

III. Filing the Action

Certain mechanics are involved in filing a complaint in federal court. A particular procedure must be followed for filing for in forma pauperis status.

III.A. Filing and Service

To file a complaint in the federal district court, you need either to pay the filing fee of $350 or to file a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The district court may also 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 documents.

After the complaint is filed, the clerk of the court issues as many summonses as may be necessary./98/ Plaintiff’s counsel is responsible for effecting service of the summonses and complaint within 120 days of filing the complaint. /99/ Service must be made by a nonparty person older than 18. /100/ When suit is filed against any officer or agent of the United States, three copies of the summonses and complaint must be served./101/ One copy must be sent by registered or certified mail to the officer or agency if the suit challenges the validity of an order of the agency or officer not made a party to the action. A second copy must be sent by registered or certified mail to the U.S. attorney general. A third copy must be delivered “to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated in a writing filed with the clerk of the court.”/102/ Delivering a copy to the receptionist in the front office of the U.S. attorney is not sufficient. You should check with the clerk’s office to ascertain whether a filed document designates the person upon whom service may be made. Absent such a document, service should be made upon the U.S. attorney. Service upon a state, municipal corporation, or other governmental organization is made either by serving the chief executive officer or by serving in accordance with the law of the state. /103/

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) in conformity with the federal “Notice and Request for Waiver” form, 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. /104/ Following this, 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, the defendant has sixty days from the date of request to answer (or ninety days if outside the United States)./105/ This extended time to answer may counsel against seeking waiver in cases that are time-sensitive. This procedure does not apply to the United States, its officers, agents, or other government-related entities.

The complaint may be supplemented by documentary material. If the case involves regulations, handbooks, or other administrative material that are not readily available to the judge, reproduce that material in an addendum to the complaint. Similarly, include in the addendum any correspondence or other documents pertinent to the case. The addendum should be well organized, have a table of contents, be divided by tabs, and be presented in such a way that the judge and the judge’s clerks can readily ascertain what material is available and read whatever they wish.

III.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. /106/ The requisite level of indigence is relatively fluid and within the discretion of the court. 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. When filing in forma pauperis, determine if 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 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./107/ In forma pauperis motions generally are ruled on by a designated judge without a hearing (and usually without controversy). The complaint is only lodged, not filed, until the motion for leave to proceed in forma pauperis is granted. The clerk’s office staff tells you when to return for your summonses. Plaintiffs proceeding in forma pauperis must have service effected by the U.S. marshal, but this usually involves much delay./108/ Thus, seeking permission from the court to effectuate service yourself is advisable. Only natural persons, not groups or associations, may file motions for in forma pauperis status./109/ 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. /110/ Denials of motion for in forma pauperis status are immediately appealable. /111/

98. Fed. R. Civ. P. 4(b).

99. Id. 4(c)(1), 4(m).

100. Id. 4(c)(2).

101. Id. 4(i).

102. Id. 4(i)(1)(A) (emphasis added).

103. Id. 4(j)(2).

104. Id. 4(d)(2).

105. Id. 12(a)(1)(B).

106. See 28 U.S.C. § 1915.

107. Id. § 1915(a)(1). See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners.”) Prisoners are subject to additional requirements when proceeding in forma pauperis. For example, they must submit a certified copy of the trust fund account statement for the preceding six-month period and are sometimes subject to a partial filing fee. See 28 U.S.C. § 1915(a)(2), (b)(1).

108. Garrett v. Miller, No. 02-C-5437, 2003 U.S. Dist. LEXIS 5248, 2003 WL 1790954 (N.D. Ill. Apr. 1, 2003); Fed. R. Civ. P.4(c)(2).

109. Rowland v. Cal. Men’s Colony, 506 U.S. 194 (1993).

110. 28 U.S.C. § 1915(e)(2). In addition, prisoners may not file a civil action or appeal a civil judgment if the prisoner has previously filed three or more actions that were dismissed while incarcerated unless the prisoner is “under imminent danger of serious physical injury”). 28 U.S.C. § 1915(g).

111. Sears, Roebuck & Co. v. Sharles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988) (noting that "an interlocutory appeal may be taken from an order denying leave to proceed in forma pauperis under the [Cohen] doctrine"); Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (accord).