7 Curing Errors in IFP Applications

A court may provide a litigant who fails to completely comply with IFP application procedures with a chance to cure an error or incomplete submissions. Most often, lack of compliance involves deficiencies with the applicant’s affidavit. In Boudreaux v. Rossen, the First Circuit laid out a curing measure nearly a century ago.1  During his IFP application before the district court, the plaintiff provided two third-party affidavits but only swore in open court that he was indigent.2  The trial judge granted IFP status, which the defendant immediately objected to because of the plaintiff’s failure to submit his own affidavit.3  In granting the plaintiff a ten-day extension to file such an affidavit, the trial judge determined that “there had not been a compliance with the mandatory provisions of the statute, but . . . there appeared to have been an honest effort on the part of plaintiff to do so . . . .”4  The First Circuit affirmed the curing remedy.5

This “honest effort” measure is also applicable when the clerk of court makes a mistake. In Roy v. Gulf States Utilities Co., the Third Circuit considered a challenge to IFP status when the the application lacked the required third-party affidavit.6  Despite this lack of compliance with the statute, the appellate court refused to find that the IFP order was an absolute nullity.7  Rather, it determined that the mistake was only a “relative nullity, and that it could be ratified or confirmed by the trial court after the required affidavits were supplied.”8

In other cases, Louisiana courts revive procedurally defective IFP applications when a litigant is especially vulnerable. For instance, in a disavowal action, a man was granted a judgment that he was not the father of a four-and-one-half-month-old baby.9  In order for the baby’s court-appointed attorney to appeal, he needed to either produce an appeal bond or have the court grant IFP status to the newborn.10  Although it was unquestioned that a newborn cannot pay court fees, it was unclear if the mother could—a question that remained open because the mother neither answered citation for the case nor could be found.11  With no other recourse, the attorney himself signed the child’s IFP affidavit.12  Only after the alleged father challenged the IFP status was the infant’s mother found and persuaded to sign an affidavit.13  Nevertheless, the plaintiff contended that it was all too late and that the attorney’s affidavit could not support IFP status for the child.14  Moving to dismiss the case on the grounds of failure to conform with IFP guidelines or, in the alternative, to produce an appellate bond, the alleged father argued that no appeal had been perfected.15  The Third Circuit disagreed, not merely because of the late-arriving affidavit from the child’s mother but also because of the attorney’s earlier actions.16  Expanding upon previous expressions of honest effort, the court observed, “Whether one is entitled to so proceed should depend not so much on the technical requirements of the pleadings involved but on the nature of the proceeding . . . .”17  This ruling suggests that technical requirements for IFP applications may be loosened if the individuals affected clearly lack the ability to access to courts in any other way.

Although some reported cases reference technical failures in the IFP application in decisions affirming the denial of IFP status, careful reading of those decisions reveals that the technical errors were not the reason for the courts’ decisions. For instance, in the review of a succession fight between three brothers, the Fourth Circuit combed through various financial discrepancies between the applicant’s statements and his living arrangements, which included residing rent-free in a succession property.18  When listing the facts it considered, the court stated that “the relator did not provide an affidavit of a person supporting the mover’s pauper status as required by La. C.C.P. art. 5183(2).”19  Although the court mentioned this technical deficiency in the application, the court affirmed the revocation of IFP status based on the trial court’s finding that the litigant had assets sufficient to make him ineligible for IFP status.20

Some application failures, however, are incurable. For instance, a litigant who never filed an IFP request in the trial court but nevertheless argues on appeal that trial court fees should not be assessed is unlikely to be allowed to cure the failure to file an initial application for IFP status.21  Further, a cover letter indicating that an IFP application will be filed is insufficient as a stand-in for a litigant’s affidavit.22

Put together, Louisiana courts do not find technical application errors fatal, but curing is most likely in cases of “honest effort,” a measure determined by the circumstances of the error, the nature of the litigation, and the applicant’s litigation conduct.

• 1Boudreaux v. Rossen, 139 So. 706 (La. App. 1 Cir. 1932).
• 2Id. at 707.
• 3Id.
• 4Id.
• 5Id.
• 6Roy v. Gulf States Utilities Co., 307 So. 2d 758, 761 (La. App. 3 Cir. 1975).
• 7Id.
• 8Id.
• 9Enterkin v. Devaux, 266 So. 2d 721, 722 (La. App. 3 Cir. 1972).
• 10Id. For a full discussion on IFP’s relationship to appeal bonds, see Section 10.
• 11Enterkin, 266 So. 2d at 722.
• 12Id.
• 13Id. at 723.
• 14Id. at 722.
• 15Id. at 723.
• 16Id. (“[T]he redactors of the Code of Civil Procedure did not intend to cut off an indigent infant’s right to appeal by providing that he could be sued through a court appointed attorney when no tutor had been appointed. This motion has revealed a hiatus in the law.”).
• 17Id.; see also id. at 722 (“The affidavits which plaintiff-appellee contend are sacramental are mere annexations to the application to proceed in forma pauperis.”).
• 18Ainsworth v. Ainsworth, 2003-1626 (La. App. 4 Cir. 10/22/03), 860 So. 2d 104, 108.
• 19Id.
• 20Id. The Ainsworth court also considered whether the applicant-brother’s IFP challenge was a product of a broader litigation strategy: The relator’s portion of the inheritances is delayed by his challenge to his aunt’s will, as well as his challenge to the partition of his father’s property at issue. The record shows that the relator filed various pleadings with claims that are needlessly repetitive. The relator should not be entitled to abuse the system by continuing to file extensive pleadings that result in needless delay. We infer that the most likely reason for this delay is for the relator to continue to live on the property rent-free. Id. Thus, the applicant’s litigation conduct is also a factor in determining whether the applicant will be allowed to cure a technical defect.
• 21See State ex rel. J.W., 2000-1445, p. 7 (La. App. 4 Cir. 1/10/01), 779 So. 2d 961, 966.
• 22See Tenney v. Burlington N. & Sante Fe Ry. Co., 2003-1260, p. 5 (La. 1/21/04), 863 So. 2d 526, 529 (“By itself, this cover letter cannot be construed as an ex parte written motion which would satisfy La. Code Civ. P. art. 5183, as no pauper affidavits are attached to the letter.”).