Opinion
99 Civ. 4941 (AJP)
January 4, 2002
OPINION ORDER
For the reasons set forth herein, the Court denies the request of plaintiff Melissa Taylor, as guardian of Pierre Taylor, that Taylor be allowed to proceed pro se. Because Ms. Taylor has failed to obtain an attorney, as required by federal law and specifically by the State court order appointing her as guardian for Pierre Taylor, despite being given repeated adjournments for that purpose, the Court dismisses this action with prejudice.
FACTS
Pierre Taylor commenced this action, pro se, in June 1999, asserting claims under Title VII against his employer, the United States Postal Service. (See Dkt. No. 2: Compl.) See al so Taylor v. Henderson, 99 F. Supp.2d 434 (S.D.N Y 2000) (Peck, M.J.) (denying Postal Service's motion to dismiss the complaint). The parties thereafter consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Dkt. Nos. 18-19), and proceeded with discovery. At the October 2, 2000 discovery status conference, the Court noted that "[i]t looks like discovery will close on time without any problems . . . in the next few days." (Dkt. No. 32:10/2/00 Conf. Tr. at 15.) Things unraveled just a few days later, however, at what was supposed to be the concluding half-day session of Mr. Taylor's deposition. Mr. Taylor told defense counsel that because of his psychiatric problems he was "hearing voices," and thus he might be answering questions that were not being asked by defense counsel: "I even have the ability of hearing things that's [sic] not said to me and answering in a totally different atmosphere." (Normand 11/9/00 Letter to Court at 2, quoting 10/18/00 Taylor Dep. Tr. at 470.) Defense counsel suspended the deposition and "request[ed] that the Court make a finding of incompetence and appoint a guardian ad litem to represent plaintiff in this action." (Normand 11/9/00 Letter to Court at 3.)
At a conference on November 17, 2000, the Court recognized that it had discretion to appoint a guardian, but declined to appoint a special guardian for Mr. Taylor. (Dkt. No. 33:11/17/00 Conf. Tr. at 12.) The Court granted Mr. Taylor a six month adjournment of the case to allow him to obtain a general legal guardian from State court. (Id. at 12-18.)
On May 4, 2001, attorney Kecia Weaver informed the Court of her retention by Mr. Taylor to commence State court guardianship proceedings. (5/4/01 Letter from Weaver to Court.) The Court therefore adjourned the case for an additional two months. (Dkt. No. 36:5/10/01 Order, adjourning conference until 7/16/01.)
On July 11, 2001, Mr. Taylor wrote to inform the court that his sister, Melissa Taylor, was appointed his legal guardian by the State court. (Dkt. No. 37: Pierre Taylor Letter to Court.) The accompanying State court "evaluator's" report recommended to the State court that Melissa Taylor be appointed as Pierre Taylor's guardian subject to certain limitations and conditions, as follows: "Melissa Taylor should obtain an attorney to assist her in fulfilling her duties as guardian. . . . I do not think she should serve as guardian without sufficient professional support." (Dkt. No. 37: State Court Evaluator's Report ¶ 86.) Specifically as to this lawsuit, the Evaluator stated:
88. Legal Matters — Taylor v. Henderson: The guardian should retain an attorney to review and assess the viability and merits of this lawsuit. This attorney's recommendations should include determining realistic probability of success, whether to continue with the lawsuit and if so, the strategy for such continuation. The guardian should have the power, in consultation with Pierre Taylor, to select the attorney and to determine whether to accept such attorney's recommendation. If the lawsuit continues, an attorney should represent Pierre Taylor and the guardian shall have the power, after consultation with Pierre Taylor, to make on-going decisions pertaining to this lawsuit. Pierre agreed to the aforementioned conditions. Under no circumstances, should the guardian make decisions regarding this case that are not consistent with legal advice from at least one attorney.
(Id. ¶ 88, emphasis added.)
At the July 16, 2001 conference before this Court, attended by both Mr. Taylor and Ms. Taylor, the Taylors confirmed that the State court had appointed Ms. Taylor as guardian with the condition "requiring [her] to retain an attorney to proceed with this action." (Dkt. No. 39:7/16/01 Conf. Tr. at 2.) The Court set a schedule for mid-September (later adjourned until October in light of September 11) to allow Ms. Taylor additional time to retain an attorney. (Id. at 4; see also Dkt. No. 40: Order rescheduling conference to 10/5/01.)
At the October 5, 2001 conference, Ms. Taylor reported that she had not been able to obtain an attorney, and so the Court adjourned the conference until November 19, 2001 to give Ms. Taylor more time to retain an attorney. (Dkt. No. 45:10/5/01 Conf. Tr. at 2-6.)
Ms. Taylor requested a settlement conference, which the Court held on October 29, 2001. (See Dkt. No. 41: Order for Settlement Conference.) At that conference, Ms. Taylor informed the Court that she had not retained an attorney but that she had a sister who was an attorney. When the case did not settle, Ms. Taylor applied for the appointment of pro bono counsel (Dkt. No. 42), which the Court denied on November 8, 2001. (Dkt. No. 43: Order.)
At the November 19, 2001 conference, Ms. Taylor handed the Court a letter from her sister, Paulette Taylor, stating that she was a "licensed attorney admitted to practice in New York State" and that while she would not represent Ms. Taylor, she would "retain an attorney solely for the limited purpose of submitting an answer [to] the expected [defense] motion for summary judgment." (11/19/01 Conf. Tr. at 2, quoting letter.) Melissa Taylor confirmed that she was "ready to move forward" with an attorney to represent her in connection with Mr. Taylor's deposition and the summary judgment motion, and that she would have the attorney, with her sister's help, within a week or so. (Id. at 3-5.) The Court required Ms. Taylor to have an attorney enter a Notice of Appearance by the end of November 2001, explaining:
You need to have an attorney deal with [the deposition of Mr. Taylor], advise you on whether to proceed with the case or not and then respond to the government's summary judgment motion.
. . . .
[Y]ou will recall at the October 5 and October 29 conferences I reminded you several times that since it was necessary for you to have an attorney pursuant to the state court guardianship [order], that if you didn't have one by today you would face dismissal of the case.
You have now told me today that you will have one and that your sister has enabled you to get one and I am taking you at your word on that. But if that attorney does not or some attorney does not enter a notice of appearance for you in this case which is a simple one page piece of paper saying, hi, I am here, I now represent the plaintiff, if that is not done by November 30 which is within, more than the time period you said you need to get that attorney hired, then I will dismiss the case. You understand that?
MS. TAYLOR: Yes, I do, you Honor.
(Id. at 6-7; see also Dkt. No. 44:11/20/01 Order confirming that "Plaintiff will obtain counsel and counsel will file a Notice of Appearance by November 30, 2001, or the case will be dismissed.")
Instead of retaining an attorney, however, Ms. Taylor on or about November 27, 2001 moved the Court for an order to allow Mr. Taylor to proceed pro se. (Dkt. No. 46: Notice of Motion Aff.) Ms. Taylor asserted her view that Mr. Taylor no longer needed a guardian and was capable of proceeding pro se. (Id.)
The attached letter from a V. A. Clinical Psychologist, Sheila Brenman, however, stated that Mr. Taylor still has "continuing complaints of hearing voices while half asleep in bed." (Id., Ex. B.)
ANALYSIS
In the ordinary case, an individual plaintiff can proceed in Court on a pro se basis. Here, however, the State court appointed a legal guardian for Mr. Taylor, and required that guardian to obtain an attorney to advise on and represent the guardian and Mr. Taylor in this action. That order has not been modified by the State court.In addition to the specific State order requiring Ms. Taylor as guardian to obtain an attorney for this action, the general rule in federal court forbids representative parties, such as guardians or executors, from appearing pro se. See, e.g., Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) ("[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause. A person must be litigating an interest personal to him. For example, a lay person may not represent a corporation or a partnership or appear on behalf of his or her own minor child.") (citations omitted), cert. denied, 122 S.Ct. 213 (2001); Johns v. County of San Diego, 114 F.3d 874, 876-77 (9th Cir. 1997) (joining "all other circuit courts addressing the issue [that] have held that the guardian or parent cannot bring a lawsuit on behalf of a minor in federal court without retaining a lawyer."); Pridgen v. Andersen, 113 F.3d 391, 393 (2d Cir. 1997) ("[A]ppearance pro se denotes (in law latin) appearance for one's self; so that a person ordinarily may not appear pro se in the cause of another person or entity. . . . We now hold that an administratrix or executrix of an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant."); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) ("[A] non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child. . . . It goes without saying that it is not in the interests of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected. There is nothing in the guardian-minor relationship that suggests that the minor's interests would be furthered by representation by the non-attorney guardian.").
Ms. Taylor was given considerable time to retain an attorney and was warned that if she did not obtain counsel this Court would dismiss the action. Ms. Taylor has not obtained such counsel despite her and her attorney-sister's representations and promises to the Court.
Accordingly, this action is dismissed with prejudice. The Clerk of Court is to enter judgment dismissing the action.
SO ORDERED.