Home » Federal Practice Manual for Legal Aid Attorneys » Chapter 4: Drafting and Filing the Complaint

4.3 Filing the Action

Updated 2010

4.3.A. Filing and Service

To file a complaint in federal district court, you must either pay the filing fee of $350 or 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. Typically, counsel will provide the Clerk's Office with a CD-ROM containing the complaint, which the Clerk will upload to the Electronic Case Filing system.

After the complaint is filed, the Clerk issues as many summonses as may be necessary./183/ Plaintiff’s counsel is responsible for effecting service of the summonses and complaint within 120 days of filing the complaint./184/ Service must be made by a nonparty older than 18./185/ 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./186/

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 (Form 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./187/ 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)./188/ This extended time to answer may counsel against seeking waiver in cases that are time-sensitive./189/ This procedure does not apply to cases against the United States, it's officers, agents, or other government-related entities./190/

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. If is not typical to attach exhibits to a complaint, but consider doing so if there is an unusually significant documents 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./191/ The requisite level of indigence is relatively fluid and within the discretion of the court./192/ As a baseline, the Supreme Court has held that an applicant need not be "absolutely destitute" to qualify for IFP status./193/ 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./194/ 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./195/ 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./196/

In forma pauperis motions generally are ruled on by a designated judge without a hearing. 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./197/ Thus, seeking permission from the court to effectuate service yourself may be advisable in cases that are time-sensitive. Only natural persons, not groups or associations, may file motions for in forma pauperis status./198/ 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./199/ Costs may be taxed against an unsuccessful plaintiff who proceeded in forma pauperis./200/ Denials of motion for in forma pauperis status are immediately appealable./201/

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

184. Id. 4(c)(1), 4(m). See Lepone-Dempsey v. Carroll County Comm'rs, 476 F.3d 1277, 1281-82 (11th Cir. 2007) for a discussion of the circumstances in which good cause would permit and 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).

185. Id. 4(c)(2).

186. Id. 4(e)(1), 4(g).

187. Id. 4(d)(2).

189. 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 Int'l, Inc., 548 F. Supp. 2d 1351, 1357-58 (S.D. Fla. 2008).  

190. Lepone-Dempsey, 476 F.3d at 1281 (11th Cir. 2007).

191. See 28 U.S.C. § 1915.

192. See Lewis v. Center Market, 2009 U.S. Dist. LEXIS 114184 *7-9 (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.").

194. Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980).

195. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1308 (11th Cir. 2004).

196. 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 Serv., 105 F.3d 274, 275 (6th Cir. 1997); Lewis, 2009 U.S. Dist. LEXIS 114184 at *6. 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 may be subject to a partial filing fee drawn from their prisoner's account. See 28 U.S.C. § 1915(a)(2), (b)(1). They are also subject to the "three strikes" rule set forth in 28 U.S.C. § 1915(g). 

197. 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 the Marshall); Fed. R. Civ. P.4(c)(2).

198. Rowland v. Cal. Men’s Colony, 506 U.S. 194, 197 (1993).

199. 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).

200. Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993); 28 U.S.C. § 1915(f).

201. See Lister v. Dep't 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).

Updated 2010