Opinion
01-CV-3895
January 3, 2003
OPINION
Yoon Ja Kim, a pro se plaintiff, brought suit, charging Earthgrains with infringing the claims of United States Patent No. Re. 36,355 (the "`355 Patent"). Kim alleged that Earthgrains' Butter Top and D'Italiano bread brands each infringed the `355 Patent because each contained an amount of ascorbic acid and a food acid, namely, vinegar, that each fall within the claimed ranges in the `355 Patent. In August 2002, I granted summary judgment in favor of Earthgrains on the basis of the invalidity of the `355 patent, on the theory that its Butter Top bread brand was on sale one year prior to Ms. Kim's earliest patent filing. Earthgrains now moves pursuant to 28 U.S.C. § 1927 for an award of excessive costs it incurred as a result of Kim's unreasonable and vexatious prosecution of her case, in the face of undisputed evidence that plaintiff's patents could not validly cover the accused product.
Section 1927 says that a lawyer and anyone else who "multiplies the proceedings . . . unreasonably and vexatiously" may be amerced. However, there is a conflict among the circuits as to whether § 1927 applies to pro se litigants. See Ayala v. Holmes, 29 Fed. Appx. 548, 550-51 (10th Cir. 2002); compare Wages v. IRS, 915 F.2d 1230, 1235-36 (9th Cir. 1990) (yes), with Sassower v. Field, 973 F.2d 75, 80 (2d Cir. 1992) (no). In Alexander v. United States, 121 F.3d 312, 316 (7th Cir. 1997), the Seventh Circuit declined to choose sides in this conflict because it was able to look elsewhere for authority to resolve the issue at hand. Unfortunately, I do not have such a luxury and must choose one or the other.
I am persuaded by the Second Circuit's opinion in Sassower that § 1927 should not be applicable to non-attorney pro se plaintiffs litigating in good faith. As Sassower noted, the word "admitted" in the context of § 1927 suggests application to those who, like attorneys, gain approval to appear in a lawyer-like capacity. Id. at 80. Furthermore, as the Second Circuit noted, it appears unlikely that Congress intended the phrase "other person" to include a person lacking lawyer-like credentials because the prior version of the statute read "any attorney, proctor, or other person admitted." Id. at 80 (citing Motion Picture Patents Co. v. Steiner, 201 F. 63, 64 (2d Cir. 1912)). Finally, on policy grounds, it seems inappropriate to hold non-attorney pro se plaintiffs to the same professional standards as legally-trained and properly-admitted members of the bar or the like. As a general rule, parties have a right to appear pro se. See 28 U.S.C. § 1654; O'Reilly v. New York Times Co., 692 F.2d 863, 867 (2d Cir. 1982). Kim exercised this right here. Even though, as Earthgrains asserts in its motion, she could have "spen[t] one hour consulting with an attorney" who may have been able to help her understand that "she could never successfully assert infringement" here, it was her right not to consult with such an attorney and gain such an understanding. It was her right to instead appear and litigate on her own. So long as Kim litigated in good faith (and I find no evidence to the contrary here), she ought not be punished for exercising this right, no matter how much she misunderstood or misapplied the law.
I do not find Kim to be one of those "recreational litigators" or an "inveterate and devious pro se litigator" to which the Federal Circuit Court of Appeals hinted would be subject to § 1927. Brown v. United States, 741 F.2d 1374, 1378 (Fed. Cir. 1984).
For the foregoing reasons, defendant's Motion for Excessive Costs Pursuant to 28 U.S.C. § 1927 is DENIED.