The opinion of the court was delivered by: TENNEY
The third-party defendants, Kraft Foods Division of the National Dairy Products Corporation, and Safeway Stores, Inc., move herein to require defendant and third-party plaintiff Bernie M. Alexander (hereinafter referred to as "Alexander"), to post a bond for costs pursuant to Rule 2 of the Civil Rules of United States District Courts for the Southern and Eastern Districts of New York (hereinafter referred to as " Rule 2").
Rule 2 provides as follows:
The court, on motion or on its own initiative, may order any party to file an original bond for costs or additional security for costs in such an amount and so conditioned as it may designate. For failure to comply with the order the court may make such orders in regard to non-compliance as are just, and among others the following: an order striking out pleadings or staying further proceedings until the bond is filed or dismissing the action or rendering a judgment by default against the non-complying party."
Subsequent to the making of the within motion, five (5) additional third-party defendants were served with summonses and complaints (P. Lorillard Co.; Simoniz Co.; Tetley Tea Division of Beech-Nut Life Savers, Inc.; Virginia Dare Stores Corp.; Mead Johnson & Company (Edward Dalton Company)), who will also be considered as movants herein.
The motion by Alexander to add these twenty-one third-party defendants to the action by way of his counterclaim was granted by Judge Weinfeld "without prejudice after joinder to all third-party defendants named in the counterclaim to move for security under Rule 2." At that time, however, Alexander had not petitioned to proceed in " forma pauperis ".
In opposition to the motion to file the bond, Alexander petitions this Court for the first time to proceed in " forma pauperis ", pursuant to Section 1915 of Title 28 of the United States Code.
In support of his petition, Alexander states that he is a poor person, that he has been on "Home Relief" from the Welfare Department since November 1964; that he is being treated as a charity outpatient at St. Luke's Hospital, and that by reason of his disabilities he is unable to earn a living.
However, Alexander is represented in this action by retained counsel, as he is in another action in this court, Alexander v. King Korn Stamp Co., et al., 65 Civ. 444, March 3, 1965. In addition, Alexander did not petition in that action to proceed in " forma pauperis ", and apparently paid both the filing fee and service of process costs. Moreover, by a stipulation dated May 4, 1965, and signed both by Alexander and his attorney, the King Korn action above was settled for a sum of $7,000 payable to Alexander as plaintiff therein. All these factors weigh against the sufficiency of the petition to proceed in " forma pauperis."
In a supplemental affidavit, Alexander's attorney asserts that of the $7,000 collected, part went for attorneys' fees and part for unpaid rent, and that there are still some $30,000 worth of unpaid judgments outstanding against Alexander. He then argues, with ample authority, that an individual need not be penniless in order to invoke the " forma pauperis " statute. See Sejeck v. Singer Mfg. Co., 113 F. Supp. 281 (D.N.J.1953).
As was stated by the Supreme Court in Adkins v. E. I. Du Pont De Nemours & Co., 335 U.S. 331, 339, 69 S. Ct. 85, 89, 93 L. Ed. 43 (1948): "To say that no persons are entitled to the statute's benefits [28 U.S.C. § 1915] until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category of public charges. * * * We think a construction of the statute achieving such consequences is an inadmissible one."
The petition itself is in the language of the statute and sets forth all the information therein required. Accordingly, on its face it is sufficient in form and substance and will be accepted. See Adkins v. E. I. Du Pont De Nemours & Co., supra. However, as will be noted infra, while a petition to proceed in " forma pauperis " may be accepted and permission granted to so proceed, the petition is not thereafter insulated from attack in view of the language in subdivision (d) of Section 1915. Thus, while permission should be freely granted where the affidavits are in the language of the statute, the petition may thereafter be successfully challenged, as will shortly be noted.
At this juncture, a brief discussion of Rule 2 and its relation to the " forma pauperis " statute ...