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Fymbo v. State Farm Fire Casualty Company

United States Court of Appeals, Tenth Circuit
Jun 5, 2000
213 F.3d 1320 (10th Cir. 2000)

Summary

holding that the district court did not abuse its discretion by deciding that an unincarcerated pro se litigant was not an adequate class representative

Summary of this case from Polsky v. United States

Opinion

No. 99-1305.

June 5, 2000.

Appeal from the United States District Court for the District of Colorado (D.C. No. 98-WY-2078-WD)

Submitted on the briefs:

Donald E. Fymbo, pro se.

Michael S. McCarthy, Jeanne M. Coleman, and Christopher P. Beall, Faegre Benson LLP, Denver, Colorado, for Defendant-Appellee.

Before KELLY, McKAY, and HENRY, Circuit Judges.


Plaintiff Donald E. Fymbo, a public insurance adjuster appearing pro se, brought this class action suit against defendant State Farm Fire and Casualty Company on behalf of himself as assignee of certain State Farm insureds and on behalf of other similarly situated State Farm insureds. The magistrate judge recommended that the complaint be dismissed because Mr. Fymbo is not an attorney, his lack of competence was proven by his pleadings filed in the district court, and he was not an adequate representative for the putative class under Fed.R.Civ.P. 23(a)(4). See R. doc. 15. The district court adopted the magistrate judge's recommendation, dismissed the complaint, and imposed sanctions of $500.00 under Fed.R.Civ.P. 11(b). See R. docs. 20, 25. Mr. Fymbo appeals. We have jurisdiction under 28 U.S.C. § 1291.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument.

Issues not raised in plaintiff's objections to the magistrate judge's recommendation are waived on appeal. See Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997). Mr. Fymbo objected to the magistrate judge's determination that he was not an adequate class representative but not to the dismissal of his assigned claims.See R. doc. 16. Therefore, the only issue before this court is whether the district court erred in dismissing the complaint because Mr. Fymbo was not capable of representing the putative class. We review the dismissal of a complaint under Rule 12(b)(6) de novo. See Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1490 (10th Cir. 1997). We review the district court's finding that Mr. Fymbo is not an adequate class representative for abuse of discretion. See Pilots Against Illegal Dues v. Air Line Pilots Ass'n, 938 F.2d 1123, 1134 (10th Cir. 1991).

We do not hesitate to affirm the district court's decision that Mr. Fymbo cannot adequately represent the putative class. Under Rule 23(a)(4), a class representative must "fairly and adequately protect the interests of the class." A litigant may bring his own claims to federal court without counsel, but not the claims of others. See 28 U.S.C. § 1654; see also 7A Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 1769.1 n. 12 (2d ed. 1986) (citing cases for rule that "class representatives cannot appear pro se"). This is so because the competence of a layman is "clearly too limited to allow him to risk the rights of others."Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975).

AFFIRMED.


Summaries of

Fymbo v. State Farm Fire Casualty Company

United States Court of Appeals, Tenth Circuit
Jun 5, 2000
213 F.3d 1320 (10th Cir. 2000)

holding that the district court did not abuse its discretion by deciding that an unincarcerated pro se litigant was not an adequate class representative

Summary of this case from Polsky v. United States

holding a pro se plaintiff is not an adequate class representative “because the competence of a layman is clearly too limited to allow him to risk the rights of others”

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holding that a pro se litigant "cannot adequately represent putative class"

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holding that a pro se litigant "cannot adequately represent putative class"

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holding that a pro se litigant cannot be an adequate class representative under Rule 23

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holding that a pro se litigant "cannot adequately represent putative class"

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holding that a pro se litigant "cannot adequately represent putative class"

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holding that a pro se litigant "cannot adequately represent putative class"

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holding that a pro se litigant "cannot adequately represent putative class"

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holding that a pro se litigant "cannot adequately represent putative class"

Summary of this case from Nolley v. Bryson

holding that a litigant may bring his own claims without counsel, but not the claims of others

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holding that class representatives cannot appear pro se

Summary of this case from Day v. Wall

holding that pro se plaintiff cannot be an adequate class representative

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holding thatpro se plaintiff cannot be an adequate class representative

Summary of this case from Roberts v. McFeeley

holding that class representatives cannot appear pro se

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finding that individual is not adequate class representative is subject to abuse-of-discretion review

Summary of this case from Carpenter v. Boeing Co.

finding that pro se litigant could not adequately represent a punitive class

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upholding determination that pro se layman would be an inadequate representative

Summary of this case from Hauff v. Petterson

denying class certification because pro se plaintiff could not adequately represent putative class

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affirming district court's decision that pro se litigant cannot adequately represent putative class

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affirming the dismissal of a class action lawsuit because a layperson cannot "fairly and adequately protect the interests of the class" under Rule 23

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affirming dismissal of purported class action brought by pro se plaintiff

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affirming dismissal of purported class action brought by pro se plaintiff

Summary of this case from Wilcox v. Martinez

affirming that a pro se litigant cannot bring claims of others because "the competence of a layman is clearly too limited to allow him to risk the rights of others."

Summary of this case from Gibbs-Squires v. Urban Settlement Servs.

affirming district court's decision that pro se plaintiff could not adequately represent a class; "A litigant may bring his own claims to federal court without counsel, but not the claims of others. . . . because the competence of a layman is "clearly too limited to allow him to risk the rights of others."

Summary of this case from Gordon v. Biden
Case details for

Fymbo v. State Farm Fire Casualty Company

Case Details

Full title:DONALD E. FYMBO, Assignee of the Claims of Class Representatives…

Court:United States Court of Appeals, Tenth Circuit

Date published: Jun 5, 2000

Citations

213 F.3d 1320 (10th Cir. 2000)

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