United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE
the court are plaintiff James McDowell's (1) motion to
stay execution of costs of judgment and (2) second motion to
proceed in forma pauperis (IFP), along with
defendant Massey Auto's (3) motion to strike
McDowell's updated affidavit in support of his motions.
After a careful review of the record, the court has
determined that all three motions should be denied.
beginning of this case, the magistrate judge denied
McDowell's affidavit-supported motion to proceed IFP.
McDowell did not seek review by the district judge. Later,
after a jury returned a verdict for Massey Auto in this
age-discrimination case, costs were taxed against McDowell.
McDowell appealed to the Eleventh Circuit Court of Appeals,
and filed the motion to stay the execution of costs of the
judgment pending appeal.
better understand McDowell's current financial condition,
the court ordered him to file an updated financial-status
affidavit. He proceeded to file a second IFP motion with a
financial-status affidavit identical to the one he filed at
the beginning of the case. He later filed an updated
financial-status affidavit, albeit after the deadline imposed
by the court. Massey Auto responded with the motion to strike
the undated affidavit as untimely; it further argued that,
even if the court considers the affidavit, McDowell's
stay and second IFP motions should be denied because the
record fails to demonstrate that he is incapable of affording
all costs and expenses incident to his appeal.
motion to stay and second IFP motion are due to be denied for
several reasons. First, the updated financial-status
affidavit remains incomplete. For example, when listing his
monthly income, he included $ 2, 000 of “other”
income. IFP Mot. (doc. no. 134), at 2. The form prompts the
filer to “specify” the source of that income, but
McDowell did not do so. Id. Similarly, he lists $ 8,
125 worth of monthly expenses “for operation of
business, profession, or farm.” Id. at 5.
Again, the filer is prompted to “attach [a] detailed
statement” of those expenses, and again McDowell failed
to do so. Id.
denying the first IFP motion, the magistrate judge noted that
McDowell's expenses “str[uck] the court as
exaggerated.” M.J. Order (doc. no. 6), at 2. In the
second IFP motion with updated affidavit, his expenses have
nevertheless risen even higher--from $ 4, 795 to $ 12, 975.
Much of this increase is due to the addition of $ 8, 125 in
unspecified business expenses. Not including these expenses,
his expenses are very similar to those expenses that the
magistrate judge previously found to be exaggerated--$ 4,
McDowell's increased listed expenses are not exaggerated,
other evidence in the record, including that adduced at
trial, fails to reflect that he is without sufficient funds
at his disposal to fund this litigation. See Durrett v.
Jenkins Brickyard, Inc., 678 F.2d 911, 917 (11th Cir.
1982) (noting that “the court may look beyond the ...
application ... to determine his financial condition”).
At trial, McDowell expressed that he had not taken a job
because he did not need the money, see Trial Tr.
(doc. no. 119), at 36, and he admitted to paying personal
bills from his corporate account. Id. at 38. A court
may find IFP status appropriate if “the litigant,
because of his poverty, is unable to pay for the court fees
and costs, and to support and provide necessities for himself
and his dependents. ... [T]he statute is not to be construed
such that potential litigants are forced to become public
charges or abandon their claims because of the filing fee
requirements.” Martinez v. Kristi Kleaners,
Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). The litigant
need not be “absolutely destitute.” Id.
McDowell has not convinced the court that he lacks the
financial resources to warrant IFP status in this case.
See Id. McDowell's second IFP motion lacks
McDowell has not met his burden of demonstrating the need to
depart from the usual requirement that the party seeking a
stay post a supersedeas bond in accordance with Federal Rule
of Civil Procedure 62. See Poplar Grove Planting &
Ref. Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189,
1191 (5th Cir. 1979) (“If a court chooses to depart
from the usual requirement of a full security supersedeas
bond to suspend the operation of an unconditional money
judgment, it should place the burden on the moving party to
objectively demonstrate the reasons for such a
departure.”) .[*] McDowell moved under subpart (g) of
Rule 62--a provision that applies to Courts of Appeal--for
this court to stay the execution of the costs of judgment.
The proper procedure to achieve such a stay is through
subpart (d) of Rule 62, which normally requires a supersedeas
bond, though the Eleventh Circuit has clarified that such a
bond “may be waived in a court's discretion.”
United States v. Certain Real & Pers. Prop. Belonging
to Hayes, 943 F.2d 1292, 1296 (11th Cir. 1991).
the court recognizes that it has the discretion to furnish an
alternative to the bond requirement, [McDowell has] not
provided any evidence that [he] will be better able to pay
costs in the future, ” Blevins v. Heilig-Meyers
Corp., 184 F.R.D. 663, 670 (M.D. Ala. 1999) (Thompson,
J.), or, for the above reasons, that he is currently without
the resources to afford a supersedeas bond. Thus, the court
will deny his motion for a stay.
because the court will deny both of McDowell's motions on
the merits, Massey Auto's motion to strike will be denied
it is ORDERED that:
Plaintiff James McDowell's motion to stay execution of
costs of judgment (doc. no. 113) is denied.
Plaintiff McDowell's application to proceed in forma