9 Challenging IFP Status

Even if the court grants IFP status, it can be challenged through a traversal of the submitted affidavits. Articles 5183 and 5184 of the Code of Civil Procedure name three possible challengers: the court,1  the adverse party, or the clerk of court.2  The court has no apparent limitation to the procedural timing of its sua sponte review, as such review is seen as in keeping with the court’s “authority and duty to subject forma pauperis orders to continuing scrutiny to prevent abuse.”3  Any reversal of status, however, must be preceded by a contradictory hearing.4  Even in a summary proceeding, a court must offer an IFP litigant sufficient notice of the contradictory hearing.5

The adverse party and the clerk of court, on the other hand, have clear limitations on their traversal. Chiefly, Article 5184 provides that “only one rule to traverse the affidavit of poverty shall be allowed . . . .”6  Because there is no statutory deadline before which a traversal must be made, courts look to equity and generally find that gaps in years or even months between IFP grant and challenge to be too long.7  Further, traversal is properly made at the trial court level, not for the first time on appeal.8  However, equity also cuts in favor of the adverse party; when an IFP litigant has a change in economic circumstances, a later traversal is allowed.9

  • 1La C.C.P. art. 5183(B)(3) (“The court may reconsider its original order granting the application on its own motion at any time in a contradictory hearing.”).
  • 2La C.C.P. art. 5184(A) (“An adverse party or the clerk of the court in which the litigation is pending may traverse the facts alleged in the affidavits of poverty, and the right of the applicant to exercise the privilege granted in this Chapter . . . .”).
  • 3City Stores Co. v. Petersen, 268 So. 2d 662, 663 (La. 1972) (“A trial judge may, therefore, reconsider a poverty determination whenever he has cause to believe either that circumstances have changed or that the order was improvidently granted.”).
  • 4Id.
  • 5See Cloud v. Dean, 2015-297, p. 11 (La. App. 3 Cir. 12/16/15), 181 So. 3d 936, 943 (reversing the removal of IFP status and remanding the issue for an evidentiary hearing due to “failure to serve [litigant] with the Rule to Traverse Pauper Status”).
  • 6La. C.C.P. art. 5183(A).
  • 7See McKellar v. Mason, 154 So. 2d 237 (La. App. 4 Cir. 1965) (nine months); Darby v. Travelers Ins. Co., 272 So. 2d 798, 799 (La. App. 3 Cir. 1973) (four years); Ross v. Hatchette, 247 So. 2d 399, 400 (La. App. 4 Cir. 1971) (nine years).
  • 8See Lepine v. Lepine, 17-45 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 672–73 (“Troy seeks to challenge Mindy’s pauper status for the first time in this appeal. As a general rule, appellate courts will not consider issues raised for the first time on appeal, which are not pleaded in the court below and which the trial court has not addressed.”). But see Buckley v. Thibodaux, 159 So. 603, 605 (La. 1935) (permitting a traversal on appeal “if sufficient time for the traverse was not allowed in the court which rendered the judgment”).
  • 9See Golden v. Cromwell, 407 So. 2d 523 (La. App. 3 Cir. 1981) (remanding case for traversal four years after the granting of IFP status because applicant became newly employed); Doyle v. Aetna Life & Cas. Co., 309 So. 2d 803, 803–04 (La. App. 3 Cir. 1974) (remanding case for traversal after appeal lodged when during the course of litigation IFP plaintiff’s husband died, leaving her “considerable properties”).

Disclaimer: The articles in the Gillis Long Desk Manual do not contain any legal advice.