Securities and Exchange Commission v. OVO Wealth Management, LLC et al

Filing 38

ENTRY AND ORDER denying 37 Motion for Reconsideration re 35 Order on Motion for Leave to Proceed in forma pauperis, filed by William M. Apostelos. Signed by Judge Thomas M. Rose on 6-1-2018. (de)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
UNITED STATES SECURITIES
AND EXCHANGE COMMISSION,
Plaintiff,
v.
WILLIAM M. APOSTELOS, et al.,
Defendants.

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Case No. 1:15-cv-699
Judge Thomas M. Rose

ENTRY AND ORDER DENYING DEFENDANT WILLIAM M. APOSTELOS’S
MOTION FOR RECONSIDERATION (DOC. 37) OF ORDER DENYING
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DOC. 33)
This case is before the Court on the Motion for Reconsideration (Doc. 37) filed by
Defendant William M. Apostelos. On April 11, 2018, Mr. Apostelos moved for leave to proceed
in forma pauperis in this case. (Doc. 33.) On April 17, 2018, Magistrate Judge Stephanie K.
Bowman, to whom the matter was referred, denied the motion. (Doc. 35.) Magistrate Judge
Bowman reasoned that there was no basis for Mr. Apostelos to proceed in forma pauperis under
28 U.S.C. § 1915(a) because, as a defendant, he is not required to pay a filing fee. In addition, to
the extent that Mr. Apostelos sought leave to proceed in forma pauperis in connection with an
appeal, his motion is premature.
Mr. Apostelos first argues that Magistrate Judge Bowman erred in finding no basis for his
motion

because

“obtaining

pauperis

status

is

a

prerequisite

Appointment/Recruitment of Counsel under Title 28 U.S.C. [1915](e).” 1

for

seeking

the

(Doc. 37 at 1-2.)

1 Mr. Apostelos transposed the last two digits in 28 U.S.C. 1915, instead referencing “28 U.S.C. 1951(e),” which
does not exist. The Court corrected this error in its quotation from his memorandum.

Section 1915(e)(1) authorizes the Court to “request an attorney to represent any person unable to
afford counsel.” 28 U.S.C. § 1915(e)(1). The statute’s use of the term “any person” is inclusive;
it does not limit the Court’s authority to request an attorney for only those persons who proceed in
forma pauperis. Nor is the Court aware of any caselaw, at least in the Sixth Circuit, indicating
that a pro se litigant must first obtain leave to proceed in forma pauperis before moving for the
appointment of counsel under 28 U.S.C. § 1915(e).
Mr. Apostelos also argues that obtaining in forma pauperis status is required in order for
him to have the Court, including the United States Marshals Service, serve process and subpoenas
and pay witness fees under 28 U.S.C. § 1915(d). First, § 1915(d) does not authorize the Court to
pay witness fees and expenses for a party proceeding in forma pauperis. See Johnson v. Hubbard,
698 F.2d 286, 289-90 (6th Cir. 1983), abrogated on other grounds by L & W Supply Corp. v.
Acquity, 475 F.3d 737 (6th Cir. 2007). The payment of witness fees is not at issue. Nor is the
service of process, insofar as process is defined as the summons and complaint. Mr. Apostelos is
correct, however, that parties proceeding in forma pauperis in civil matters typically are not
required to pay for the Marshals Service to complete service of subpoenas. Nevertheless, the
Marshals Service will not complete such service if, in the case of a Fed. R. Civ. P. 45 subpoena
for testimony for example, the party does not tender the required witness fees with the properly
executed subpoena.
The stay of this case has been lifted and Mr. Apostelos has answered the Complaint. This
case will soon move into discovery if not otherwise resolved. As a result, it is possible that Mr.
Apostelos may require the assistance of the Marshals Service to serve subpoenas on his behalf, if
he is able to raise the funds to pay the applicable fees where necessary. Mr. Apostelos’s Motion

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for Leave to Proceed In Forma Pauperis (Doc. 33) therefore is not premature.
Even though not premature, Mr. Apostelos’s Motion for Leave to Proceed In Forma
Pauperis is not supported by an affidavit or its equivalent as required by 28 U.S.C. § 1915(a)(1).
The statute states, in relevant part, that “any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the person is unable
to pay such fees or give security therefor.” 28 U.S.C. 1915(a)(1) (emphasis added). Mr.
Apostelos avers to certain facts in his supporting memorandum, but does not include an affidavit
swearing to those facts or a declaration under 28 U.S.C. § 1746. His Motion therefore fails,
regardless of whether or not it is premature.
For the reasons above, Mr. Apostelos’s Motion for Reconsideration (Doc. 35) is DENIED.
DONE and ORDERED in Dayton, Ohio, this Friday, June 1, 2018.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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