Sanctions — Defense of Inability to Pay Requires Showing of Inability to Pay on Installment Basis

From Wallace v. UAW Local 1639, 2008 U.S. Dist. LEXIS 52750 (S.D. Ala. July 9, 2008), a pro se action by a union member against a union alleging civil rights violations in connection with her employment:

The Court understands that Wallace has suggested in passing that she is impoverished and unable to pay the $1,754.05 sanction imposed by Judge Milling. The Court also recognizes that the Eleventh Circuit has suggested that dismissal for failure to pay a sanction by an IFP litigant may be an abuse of discretion where "the litigant comes forward showing a true inability to pay." Moon, 863 F.2d at 838. But plaintiff has not done so. In particular, Wallace has never come before this Court offering or requesting to pay the sanction on an installment basis. Nothing in her submissions suggests she is unable to do so in small monthly increments of, say, $25 or $50 per month. She states in conclusory terms that she has "tried to borrow and raise the money to pay" (doc. 104, at 7), but she does not provide any details whatsoever to bolster that conclusory representation. This showing is patently inadequate. See Ebeh v. Tropical Sportswear Int'l Corp., 199 F.R.D. 696, 699 (M.D. Fla. 2001) ("Protestations of poverty are not evidence," and plaintiff will not be excused from paying discovery sanction where he has failed to come forward with any evidence of why he could not pay the sanction, or of unsuccessful efforts to obtain funds with which to pay the sanction); Rickerson v. Woods, 2007 WL 1106134, *2 (S.D. Ga. Apr. 9, 2007) ("Plaintiff cannot avoid dismissal of his case by relying only upon an earlier establishment of IFP status; he should instead attempt to comply with the sanction or he should detail his unsuccessful efforts to comply with the Court's order."). Plaintiff's bare statement that she has been unable to raise the money to pay the sanction during the last two months does not evince her true inability to pay, much less demonstrate any good-faith, reasonable attempt to comply with the April 18 Order.

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