United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
C. POPLIN, UNITED STATES MAGISTRATE JUDGE.
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
before the Court is Plaintiff's Motion for Return of
Filing Fee [Doc. 86] and Plaintiff's Motion to Extend
Time of Service [Doc. 106]. The Motions are ripe for
adjudication. Accordingly, the Court has considered the
relief requested in the Motions, and for the reasons
explained below, the Court GRANTS both
Motions [Docs. 86 and 106].
Court will address each Motion separately.
Motion for Return of Filing Fee
of background, on July 3, 2017, Plaintiff filed a Complaint
[Doc. 1] and paid the $400.00 filing fee. On the same day, he
also filed an application to proceed in forma pauperis. [Doc.
2]. On August 17, 2017, the Court granted [Doc. 4]
Plaintiff's application to proceed in forma pauperis.
Subsequently, on December 27, 2017, Plaintiff filed the
Motion requests the return of his filing fee in the amount of
$400.00. For grounds, he states that the Court granted him
leave to proceed in forma pauperis. In addition, he states
that he has experienced undue hardship due to unexpected
expenses, including medical and travel expenses. He further
states that gas alone for his medical trips are 80% of his
income. He continues that he has plans to relocate to his
place of his residence where his skill sets are more
applicable and understood and that the fees should be
remitted pursuant to his in forma pauperis status and Federal
Rule of Civil Procedure 24.
Judicial Conference has a longstanding policy prohibiting the
refund of fees, with narrow exceptions, e.g., when fees are
collected without authority or as a result of administrative
error on the part of the clerk's office.”
Rashada v. Gonzales, No. 1:07-CV-1055, 2007 WL
1795873, at *1 (N.D. Ohio June 20, 2007) (quoting JCUS-MAR
05, p. 11). Generally, the Court prohibits refunds of filing
fees. Id. As the Rashada court explained,
“To this day, ‘[w]ith the exception of in
forma pauperis proceedings, neither Congress nor the
Judicial Conference has authorized exceptions to the fees due
upon filing the original request for relief.'”
Id. (quoting Admin. Office of the U.S. Courts,
Bankruptcy Fee Compendium III (April 2006)).
“Nevertheless, the clerk must refund any fee collected
without authority. For example, the clerk has no authority to
collect a fee to reopen a case unless the case is
closed.” Id. (quoting Admin. Office of the
U.S. Courts, Bankruptcy Fee Compendium III (April 2006)).
instant situation is unique at best. Plaintiff filed his
Complaint by sending it via mail to the Clerk's Office.
With his mailing, he included a $400.00 check for the filing
fee and an application to proceed in forma pauperis. He also
included a letter that states, “But if either of the
two are accepted, feel free to return my check and have a
wonderful day.” [Doc. 1-3]. In his application to
proceed in forma pauperis, he states that he has $107.85,
“unless [the] $400 fee is returned and admitted without
prepayment.” [Doc. 2 at 3].
it is not entirely clear to the Court why Plaintiff sent the
check, along with his application to proceed in forma
pauperis, the Court finds that the acceptance of both was an
administrative oversight that warrants returning the filing
fee. In making this determination, the Court has also
considered whether Plaintiff should have received in forma
pauperis status, given that he was financially able to send
the Clerk's Office a $400.00 check. The Court, however,
has revisited his application to proceed in forma pauperis
and finds that he still qualifies despite his $400.00 check.
For instance, in his application to proceed in forma
pauperis, he explains that he has $107.85 in his bank
account, “unless the $400 fee is returned, ” and
that he spends a majority of his little income on his medical
expenses. [Doc. 2 at 3]. His total assets barely exceed his
total liabilities. [Id. at 7-9]. As explained by the
Supreme Court, one need not be absolutely destitute to enjoy
the benefit of proceeding in forma pauperis. Adkins v.
E.I. DuPont de Nemours & Co., 335 U.S. 331, 339
(1948). Given the unique circumstances, the Court finds it
appropriate to return the $400.00 filing fee to Plaintiff.
Accordingly, Plaintiff's Motion for Return of Filing Fee
[Doc. 86] is GRANTED. The
Clerk of Court SHALL return to Plaintiff the
$400.00 filing fee.
Motion to Extend Time of Service
Motion [Doc. 106] requests additional time to properly serve
the National Institute of Health (“NIH”), the
Center of Disease Control (“CDC”), and the
Secretary of Defense pursuant to Federal Rule of Civil
Procedure 4(i). For grounds, Plaintiff states that he
believed that the U.S. Marshals Service performed the
requirements under Federal Rule of Civil Procedure 4. He
continues that the United States Attorney made a special
appearance, objecting to his request for entry of default
with respect to NIH, CDC, and the Secretary of Defense.
Plaintiff further asserts that he did not attempt to keep
copies from the United States and that he believed that the
United States had knowledge of the case.
Court observes that on February 20, 2018, Plaintiff moved for
entry of default with respect to NIH, CDC, and the Secretary
of Defense. [Docs. 99, 100, 101]. In response [Doc. 103], the
United States entered a special appearance on behalf of these
Defendants, explaining that entry of default is not proper
because they had not been served in accordance with Rule
4(i). Specifically, the United States explained that service
was not sufficient because Plaintiff did not serve the United
States Attorney for the Eastern District of Tennessee or the
United States Attorney General. Plaintiff now moves for
additional time to cure the defective service.
Court has previously explained, Rule 4(m) provides that a
plaintiff must show good cause for the failure to serve
within the time limits ...