Opinion
Case No. 1:20-cv-01803
2021-07-26
METRON NUTRACEUTICALS, LLC, Plaintiff, v. Christina Rahm COOK, et al., Defendants.
Bradley J. Barmen, Daniel A. Leister, Ryan K. Rubin, Lewis Brisbois Bisgaard & Smith, Cleveland, OH, for Plaintiff. Nicholas J.M. Holland, Andrew S. Peterson, Albert Law Firm, Steven W. Albert, Albert & Wendel, Pepper Pike, OH, for Defendants Christina Rahm Cook, Dr. Christina Rahm, LLC, Dr. Christina Rahm Ventures Incorporated, Cure the Causes, Inc., Merci Dupre, LLC. Brian F. Kampman, Stephen M. Bales, Ziegler Metzger, Jeffrey S. Dunlap, Ulmer & Berne, Cleveland, OH, Paul R. Dehmel, Ulmer & Berne, New York, NY, for Defendants Simply Wholeistic, Inc., DC2 Holdings, LLC, Clayton Thomas, DC2 Healthcare, LLC. Brian F. Kampman, Stephen M. Bales, Ziegler Metzger, Jeffrey S. Dunlap, Ulmer & Berne, Cleveland, OH, G. Kline Preston, IV, Preston Law, Nashville, TN, Paul R. Dehmel, Ulmer & Berne, New York, NY, for Defendant Root Wellness, LLC. Courtenay Youngblood Jalics, Robert J. Hanna, Tucker Ellis, Cleveland, OH, for Defendants Mark E. Adams, Top Partners Management, LLC. William H. Falin, Moscarino & Treu, Courtenay Youngblood Jalics, Robert J. Hanna, Tucker Ellis, Cleveland, OH, for Defendant Entox Solutions, LLC. Simply Wholeistic, Inc., Nashville, TN, Pro Se. Root Wellness, LLC, Pro Se. DC2 Holdings, LLC, Brentwood, TN, Pro Se. Clayton Thomas, Brentwood, TN, Pro Se. DC2 Healthcare, LLC, Pro Se.
Bradley J. Barmen, Daniel A. Leister, Ryan K. Rubin, Lewis Brisbois Bisgaard & Smith, Cleveland, OH, for Plaintiff.
Nicholas J.M. Holland, Andrew S. Peterson, Albert Law Firm, Steven W. Albert, Albert & Wendel, Pepper Pike, OH, for Defendants Christina Rahm Cook, Dr. Christina Rahm, LLC, Dr. Christina Rahm Ventures Incorporated, Cure the Causes, Inc., Merci Dupre, LLC.
Brian F. Kampman, Stephen M. Bales, Ziegler Metzger, Jeffrey S. Dunlap, Ulmer & Berne, Cleveland, OH, Paul R. Dehmel, Ulmer & Berne, New York, NY, for Defendants Simply Wholeistic, Inc., DC2 Holdings, LLC, Clayton Thomas, DC2 Healthcare, LLC.
Brian F. Kampman, Stephen M. Bales, Ziegler Metzger, Jeffrey S. Dunlap, Ulmer & Berne, Cleveland, OH, G. Kline Preston, IV, Preston Law, Nashville, TN, Paul R. Dehmel, Ulmer & Berne, New York, NY, for Defendant Root Wellness, LLC.
Courtenay Youngblood Jalics, Robert J. Hanna, Tucker Ellis, Cleveland, OH, for Defendants Mark E. Adams, Top Partners Management, LLC.
William H. Falin, Moscarino & Treu, Courtenay Youngblood Jalics, Robert J. Hanna, Tucker Ellis, Cleveland, OH, for Defendant Entox Solutions, LLC.
Simply Wholeistic, Inc., Nashville, TN, Pro Se.
Root Wellness, LLC, Pro Se.
DC2 Holdings, LLC, Brentwood, TN, Pro Se.
Clayton Thomas, Brentwood, TN, Pro Se.
DC2 Healthcare, LLC, Pro Se.
ORDER
J. Philip Calabrese, United States District Judge Defendant Clayton Thomas has identified an individual with legal training who provided assistance to him in connection with his response to Plaintiff's motion for contempt and sanctions (ECF No. 103) while he purported to be representing himself pro se (ECF No. 115). One who proceeds without counsel represents to the Court that his filings and arguments are his own. Although courts afford pro se litigants some liberality in their submissions, all those appearing before the Court—whether represented or not—must follow the rules. Those rules forbid what Mr. Thomas has done—passed off another's legal training and experience as his own. Such conduct makes a fundamental misrepresentation to the Court and, for the reasons set forth below, violates the rules and the basic ethical principles that govern litigation. A sanction for Mr. Thomas's violation will be the subject of future proceedings. The Court also puts Mr. Thomas on notice that future violations may also result in sanctions, including contempt or any other sanction specifically contemplated in Rule 37 or under the law.
In addition, for reasons explained below, the Court ORDERS Kline Preston, pursuant to Rule 11(c)(3) of the Federal Rules of Civil Procedure, to show cause why he has not violated Rule 11(b) or should not otherwise be sanctioned under the Court's inherent authority.
FINDINGS OF FACT
Plaintiff filed this action against Mr. Thomas and others on August 14, 2020. Mr. Thomas was represented by counsel until May 11, 2021, when the Court granted his counsel leave to withdraw. (Order, May 11, 2021.) In light of his counsel's withdrawal, the Court ordered Mr. Thomas to secure new counsel by May 25, 2021. (Id. ) The Court also advised Mr. Thomas that, if new counsel failed to appear by that date, the Court would conclude that Mr. Thomas had decided to represent himself. (Id. ) Counsel did not appear for Mr. Thomas by the deadline, so the Court considered Mr. Thomas as proceeding pro se. At the same time, Attorney G. Kline Preston entered an appearance for Defendant Root Wellness, LLC, which Defendant Christina Rahm Cook owns and which is allegedly related to Mr. Thomas. (ECF No. 97.) About a month later, Mr. Thomas filed an opposition brief (ECF No. 103) in response to Plaintiff's motion for sanctions and civil contempt and also obtained permission for electronic filing (ECF No. 104; ECF No. 105). Mr. Thomas's opposition appeared, in form and substance, to have been drafted with the assistance of someone with legal training.
The Court held a hearing on July 14, 2021 to hear arguments on pending motions and to address other matters. Mr. Thomas represented himself at the hearing. Before hearing arguments on the motions, the Court asked Mr. Thomas if he wrote the brief in opposition to Plaintiff's motion. Mr. Thomas initially answered that the response was his own work product, but then represented that he had some assistance from someone with legal training in his office or from lawyers. Mr. Thomas also confirmed that he has not attended any law school. Mr. Thomas could not remember the name of the lawyer who helped draft the response. At that point, the Court ordered Mr. Thomas to file a declaration under penalty of perjury identifying who helped him draft the response and the extent of their legal training and assistance. The Court issued a written order requiring the same. (ECF No. 112.)
In response to the Court's order, Mr. Thomas submitted a document stating, twice, that "no attorneys were consulted in the creation of the response." (ECF No. 113.) He also stated that he "used materials on hand and guidance from legal assistants in the creation and formation of his responses." (ECF No. 113.) Because that response did not fully comply with its order, the Court again ordered Mr. Thomas to identify any and all individuals who assisted in drafting and the extent of each individual's legal training and assistance by July 23, 2021. (ECF No. 114.) Mr. Thomas responded that he used a paralegal "as a resource" in drafting the document at issue. (ECF No. 115.) Publicly available information shows that the individual Mr. Thomas named lists herself as a paralegal at Kline Preston Law Group, which represents Defendant Root Wellness, LLC.
DISCUSSION
Drafting legal documents for a pro se litigant is often called "ghostwriting"—a practice the federal courts almost universally condemn. See, e.g. , Evangelist v. Green Tree Servicing, LLC , No. 12-15687, 2013 WL 2393142, at *3 n. 6, 2013 U.S. Dist. LEXIS 76875, at *11 n.6 (E.D. Mich. May 31, 2013) (collecting cases). Litigants may proceed pro se , but the right to undisclosed assistance in conducting their case is limited by ethical and procedural rules. In re O'Connor , No. 08-16434, 2009 WL 1616105, at *3 (N.D. Ohio Feb. 27, 2009) ; see also Thigpen v. Banas , No. 08 C 4820, 2010 WL 520189, at *1 (N.D. Ill. Feb. 11, 2010) (recognizing that ghostwriting "on behalf of a pro se plaintiff raises a serious matter of unprofessional conduct"). These limits exist whether the ghostwriter is a lawyer, Kircher v. Township of Ypsilanti , No. 07-13091, 2007 WL 4557714, at *4, 2007 U.S. Dist. LEXIS 93690, at *9 (E.D. Mich. Dec. 21, 2007), a non-lawyer, O'Connor , 2009 WL 1616105, at *4, or someone with some legal training, Gordon v. Dadante , No. 1:05-CV-2726, 2009 WL 1850309, at *27, 2009 U.S. Dist. LEXIS 54147, at *95 (N.D. Ohio June 26, 2009).
"A ghostwritten submission is ‘inconsistent with the intent of procedural, ethical and substantive rules of the Court.’ " Gordon , 2009 WL 1850309, at *27, 2009 U.S. Dist. LEXIS 54147, at *95 (quoting Ostevoll v. Ostevoll , No. C-1-99-961, 2000 WL 1611123, at *9, 2000 U.S. Dist. LEXIS 16178, at *30 (S.D. Ohio Aug. 16, 2000) ). For example, the Federal Rules of Civil Procedure impose a continuing duty of candor on representations made to the court by attorneys and unrepresented parties and authorize sanctions for any violation of that duty. Fed. R. Civ. P. 11 ; see also Ridder v. City of Springfield , 109 F.3d 288, 293 (6th Cir. 1997) (discussing continuing duty of candor). Similarly, the Ohio Rules of Professional Conduct impose a duty of candor on lawyers and prohibit lawyers from knowingly making false statements of fact or law to a tribunal. Ohio R. Prof'l. Cond. 3.3(a)(1). In addition, the Local Rules of this District prohibit the unauthorized practice of law by non-lawyers. O'Connor , 2009 WL 1616105, at *3 (citing N.D. Ohio Local Civil Rule 83.5(a)). Ohio also prohibits the unauthorized practice of law by non-lawyers. Id. at *4 (citing Ohio Rev. Code § 4705.01 ).
Ghostwriting "evades the requirements" of Rule 11 and the other rules mentioned. Thigpen , 2010 WL 520189, at *1 ; see also Evangelist , 2013 WL 2393142, at *3 n.6, 2013 U.S. Dist. LEXIS 76875, at *12 n.6 (noting ghostwriting violates "the spirit" of Rule 11 ). It does so by permitting the ghostwriter to avoid responsibility for submissions to the Court and the pro se litigant to enjoy the benefits of representation with the potential leniency courts often afford unrepresented parties. See Thigpen , 2010 WL 520189, at *1–2. Therefore, ghostwriting supplies grounds for imposing sanctions and finding contempt. Gordon , 2009 WL 1850309, at *27, 2009 U.S. Dist. LEXIS 54147, at *96. Rule 11 permits sanctions to include nonmonetary directives and monetary penalties. Fed. R. Civ. P. 11(c)(4). A finding of civil contempt permits the Court to impose monetary fines and incarceration. United States v. Bayshore Assocs., Inc. , 934 F.2d 1391, 1400 (6th Cir. 1991) (citations and quotation marks omitted).
I. Mr. Thomas's Violation
With that background, the Court turns to Mr. Thomas's declarations. Mr. Thomas admits he received assistance from an individual with legal training in connection with his response to Plaintiff's motion (ECF No. 103) while proceeding as a pro se litigant (ECF No. 115). The Court admonishes Mr. Thomas that receiving legal assistance in drafting submissions to the Court while representing himself as a pro se litigant violates his duty of candor to the Court under federal and State law and the Local Rules. Based on his declarations, Mr. Thomas admits violating these rules, and the Court finds that he has done so. The Court will determine an appropriate sanction for this violation after further proceedings, which are outlined in this Order.
In addition, the Court places Mr. Thomas on notice that it will impose sanctions for any future violation resulting from the continued use of assistance in submissions to the Court while holding himself out as pro se. The nature of any sanction will be determined according to the law and will depend on the facts and circumstances of the violation, including its nature, severity, and effect. Generally, sanctions may include nonmonetary directives, monetary penalties, or incarceration.
II. Show Cause Order
The individual Mr. Thomas identified also suggests that Mr. Preston, attorney for Defendant Root Wellness, LLC, may have played some part in the ghostwriting violation because the individual lists Kline Preston Law Group as her employer from March 2020 to the present on her LinkedIn profile. And a paralegal must only provide legal assistance under the direction and control of a lawyer. See Cleveland Metro. Bar Ass'n v. Davie , 133 Ohio St. 3d 202, 2012-Ohio-4328, 977 N.E.2d 606, ¶¶ 17–20 (2012) (explaining that a paralegal who drafts legal documents without a licensed attorney's supervision engages in the unauthorized practice of law).
In light of this publicly available information and the record before it, pursuant to Rule 11(c)(3) of the Federal Rules of Civil Procedure, the Court ORDERS counsel for Root Wellness, LLC, G. Kline Preston, to show cause why he has not violated Rule 11(b) or should not otherwise be sanctioned under the Court's inherent authority. Specifically, the Court requests an explanation of his involvement in the drafting of Mr. Thomas's brief (ECF No. 103) and the direction or supervision Mr. Preston provided to the paralegal in connection with that submission. The Court ORDERS Mr. Preston to provide this explanation, under penalty of perjury pursuant to 28 U.S.C. § 1746, no later than seven days from the date of this Order.
The Court will discuss the matter further at the next scheduled status conference set for August 4, 2014 at 3:00 pm.