Opinion
Case No. 98-13090-SSM.
January 31, 2006
Robert J. McCall, Kennebunkport, ME, Movant, Brian F. Kenney, Esquire, Miles Stockbridge, P.C. McLean, VA, Counsel for CUMIS Insurance Society, Inc.
Donald F. King, Esquire, Fairfax, VA, Chapter 7 trustee.
MEMORANDUM OPINION AND ORDER
Before the court is the motion of Robert J. McCall — in his capacity as court-appointed guardian of the debtor's person, and conservator of his estate — to appear pro se on the debtor's behalf in connection with a motion Mr. McCall has filed (a) to set aside a six-year old judgment in an adversary proceeding determining the claim of CUMIS Insurance Society, Inc. ("CUMIS") to be non-dischargeable and (b) to void a settlement between the chapter 7 trustee and a company known as Baker Kerr, Inc. In the alternative, Mr. McCall asks that the court appoint a guardian ad litem to prosecute the motion. For the reasons stated, the motion will be denied.
CUMIS Ins. Soc., Inc. v. Mattern (In re Mattern), No. 98-13090, A.P. No. 98-1296 (Bankr. E.D. Va., May 28, 1999). The court notes that this part of Mr. McCall's motion should have been filed in the adversary proceeding, not the bankruptcy case.
Order Granting Motion to Compromise and Settle Claims Against Baker Kerr (Doc. # 138), May 18, 2000.
Background
The debtor, William Albert Mattern, Jr., filed a petition in this court on April 20, 1998, for relief under chapter 7 of the Bankruptcy Code and received a discharge of his dischargeable debts on December 5, 1999. In the course of the case, CUMIS, as subrogee of the National Labor Relations Board Credit Union, brought an adversary proceeding to determine the dischargeability of its claim against the debtor arising from an alleged check kiting scheme benefitting Baker Kerr. A full-day trial was held on May 27, 1999, with Mr. Mattern representing himself. On May 28, 1999, the court entered a judgment determining that CUMIS's claim — which was evidenced by a confessed judgment — was nondischargeable under § 523(a)(2)(A), Bankruptcy Code, as arising from false representations, false pretenses, or actual fraud. Approximately six months after entry of the judgment, Mr. Mattern filed a motion for relief from the judgment based on newly-discovered evidence and fraud on the court. Following a hearing, the court issued a memorandum opinion and order denying the motion.
A separate adversary proceeding brought by Prosperity Bank objecting to Mr. Mattern's discharge was decided in Mr. Mattern's favor. Mr. Mattern represented himself in that action as well.
As a separate matter, the debtor had asserted various claims against Baker Kerr. The trustee negotiated a settlement of those claims in return for the payment by Baker Kerr to the trustee of $85,000 and the withdrawal of its proof of claim. An order approving the settlement was entered on May 18, 2000. The trustee subsequently completed the administration of the case, which was ultimately closed on September 15, 2003.
On February 4, 2005, the Circuit Court of Fairfax County, Virginia, appointed Mr. McCall as guardian of Mr. Mattern's person and conservator of his estate. That court found:
Mr. Mattern is incapacitated as a result of bipolar disorder. He is incapacitated to such an extent that he is unable to care for himself, make medical decisions or to manage his estate and to understand his debts or pay them as they become due, make a Will or other transfers of his assets, or to enter into contracts for himself. The length of the incapacity cannot be determined at this time.
In re William A. Mattern, Jr., Chy. No. 2005-000163, Order at 1-2 (emphasis added). On June 30, 2005, Mr. McCall, who is not an attorney admitted to practice in this court, filed a motion to set aside the findings in the CUMIS trial and void the settlement agreement with Baker Kerr. The court wrote Mr. McCall and advised him that under Local Bankruptcy Rule 9010-1, he could not appear pro se on Mr. Mattern's behalf. Mr. McCall then withdrew the motion without prejudice. The motion was refiled on January 26, 2006, accompanied this time by the present motion to waive the local rule requiring that Mr. McCall be represented by counsel or, in the alternative, to appoint a guardian ad litem. In the motion, he represents that "contact has been made with approximately fifty (50) local lawfirms [ sic] in an effort to obtain an attorney to handle this matter, without success." The motion provides no further information as to why the attorneys who were contacted declined the representation.
CUMIS filed a response opposing the motion.
Specifically, the court is not advised whether the attorneys were willing to take the case, but only upon payment of a retainer that the debtor could not afford, or, alternative, simply were not willing to take the case at all, either because they thought it had no merit or because of a conflict of interest.
Discussion I.
An individual may represent himself or herself in Federal court without an attorney. 28 U.S. Code § 1654. However, only a licensed attorney may present a case in Federal court on behalf of another person or entity. This limitation is embodied in Local Bankruptcy Rule 9010-1, which provides as follows:
Requirement for Counsel: Except for filing a proof of claim, request for notice/service, notice of appearance, reaffirmation agreement, notice of transfer of claim, or a transcript of court proceedings, no party or entity other than a natural person acting in his or her own behalf or, to the extent permitted by § 304(g) of Pub.L. 103-394, a child support enforcement agency, may appear in a bankruptcy case or proceeding, sign pleadings, or perform any act constituting the practice of law except by counsel permitted to appear under LBR 2090-1. This rule applies to corporations, partnerships, limited liability companies, associations, and trusts, as well as to individuals acting in a representative capacity (such as under a power of attorney) for another.
LBR 9010-1 (emphasis added). Although there do not appear to be any reported Federal cases specifically addressing guardians filing pro se legal pleadings on behalf of their wards, there are a number of decisions involving the analogous situation of parents attempting to file pro se on behalf of their minor children or executors attempting to file pro se on behalf of the estate they represent. Those cases consistently hold that a non-attorney cannot appear pro se on behalf of another even in those situations. Jones ex rel Jones v. Cumberland Medical Services, 401 F.3d 950, 951-52 (8th Cir. 2005) (finding that non-attorney administrator of decedent's estate could not proceed pro se on behalf of the estate); Pridgen v. Andersen, 113 F.3d 391 (2nd Cir. 1997) (holding executrix could not appear pro se on behalf of estate); Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2nd Cir. 1990) (finding that parent cannot appear pro se on behalf of minor child); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (holding that minor child cannot bring suit through parent acting as next friend if parent is not represented by an attorney); Gallo v. United States, 331 F. Supp. 2d 446 (E.D. Va. 2004) (concluding that mother could not represent daughter pro se in action to recover damages for personal injury).
Where an individual is bringing or defending an action with respect to his or her own interests, and not the interests of others, it makes sense to allow self-representation, since the only party who will be harmed if the representation is inadequate is the person who made the choice. However, a person who is not legally competent to make decisions concerning his or her property or financial affairs cannot make that choice. Cheung, 906 F.2d at 61 ("the choice to appear pro se is not a true choice for minors who under state law . . . cannot determine their own legal actions."). When the interests at stake are not the party's own interests but those of another, the court has a "duty to ensure that parties are represented by people knowledgeable and trained in the law." Jones, 401 F.3d at 951-52. For that reason, the court declines to waive the requirements of Local Rule 9010-1 or depart from the settled rule restricting pro se appearances to a natural person acting on his or her own behalf.
II.
As alternative relief, Mr. McCall requests the appointment of a guardian ad litem. In this connection, Federal Rule of Civil Procedure 17(c), which is made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7017 and to contested matters by Federal Rule of Bankruptcy Procedure 9014(c), provides as follows:
(c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.
In this case, the debtor has an existing court-appointed fiduciary, namely Mr. McCall. It is only in the absence of such a representative that the court is required to appoint a guardian ad litem for an incompetent person. The fact that Mr. McCall has not obtained counsel to file pleadings on his ward's behalf and cannot file them himself without counsel does not alter the fact that the debtor already has a "duly appointed representative" authorized to sue and defend on his behalf.
Although appointment of a guardian ad litem is therefore not appropriate — particularly as the adversary proceeding has already been tried and final judgment entered long ago — the court has considered whether the motion should be treated as a request for appointment of counsel. There is no requirement for appointment of counsel in a civil case, but the court has discretion to do so in exceptional circumstances. 28 U.S.C. § 1915(e)(1) ("The court may request an attorney to represent any person unable to afford counsel."); Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989) (stating that a district court has discretion to appoint counsel in a prisoner civil rights case "if doing so would advance the proper administration of justice."); Hunter v. Dept. of the Air Force, 846 F.2d 1314, 1317 (11th Cir. 1988) (finding that in determination of whether to appoint counsel in employment discrimination case, court may consider the merits of the claim to be brought and the efforts taken by the complainant to obtain counsel); In re Fitzgerald, 167 B.R. 689, 691-92 (Bankr. N.D. Ga. 1994) ("Appointment of counsel in a civil case is a privilege justified only by exceptional circumstances.").
There are two difficulties here. The first is that the motion is far from clear as to why Mr. McCall has been unable to retain counsel. If no lawyer has been willing to take the case because no lawyer has thought it had merit, it is difficult to see why the court should impose representation on one of the members of its bar. On the other hand, where there is apparent merit to a case but a party is unable to pay a reasonable fee and justice will be subverted unless counsel is appointed, then a very different situation is presented. That leads directly to the second issue, which is the apparent merit of the motion that Mr. McCall wants to bring. As to the trustee's settlement with Baker Kerr, the court can perceive no likely merit. The debtor's claims against Baker Kerr became property of the bankruptcy estate and passed into the control of the trustee. Whether to prosecute, settle, or abandon those claims was a decision to be made by the trustee, subject to court approval. Regardless, therefore, of whether the debtor's mental disability existed at the time of the settlement, such disability would have no effect on the question of whether the settlement should have been approved, since the claims no longer belonged to him but to the bankruptcy estate.
The CUMIS action, of course, is a different matter, since the nondischargeability judgment unquestionably affects Mr. Mattern's personal interests. The question is whether a sufficient threshold showing has been made that the motion to set aside the judgment may have merit. As CUMIS noted in its response to the earlier motion, the fact that in 2005 Mr. Mattern was found to be incompetent to handle his own affairs does not prove that he was incompetent six years earlier when the trial took place in 1999, let alone ten years earlier when the alleged check-kiting scheme took place between 1994 and 1995. While there can be little doubt that Mr. Mattern's litigation actions were sometimes erratic, the fact remains that he successfully defended an action bought by another creditor (Prosperity Bank) objecting to his discharge. Even in the CUMIS litigation, Mr. Mattern was probably no less skillful in defending himself than any another pro se defendant. The fundamental problem with Mr. Mattern's defense lay not with his lack of legal skill but in the timing and amount of the checks he wrote from his credit union account which were then deposited in the Baker Kerr account.
As CUMIS correctly pointed out in its response to the prior motion, the one-year limitation on relief under subsections (1) through (3) of Rule 60(b), Fed.R.Civ.P., as incorporated by Fed.R.Bankr.P. 9024, has passed. Hence, relief can be granted, if at all, only under the catch-all language of Rule 60(b)(6) ("any other reason justifying relief from operation of the judgment"). A party seeking relief from a judgment under Rule 60(b) must generally make a threshold showing of "timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances." Dowell v. State Farm Casualty Automobile Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993).
In any event, at this point the court does not find the requisite exceptional circumstances for the appointment of counsel in a civil case, and the court declines to do so. This ruling, however, is without prejudice to renewal of the motion if a more specific reason can be shown for the inability to obtain counsel.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The motion to waive the requirement for appearance by counsel, or, in the alternative, to appoint a guardian ad litem, is denied. Construing the motion as including a motion for appointment of counsel, the motion is denied.
2. The clerk will mail a copy of this order, or give electronic notice of its entry, to the parties listed below.