Opinion
CIV. S-98-2130 GEB JFM.
September 23, 1999
ORDER
The qui tam plaintiff ("Tyler"), seeking to proceed in propria persona, moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for an Order allowing him to withdraw the voluntary Notice of Dismissal filed June 28, 1999. Tyler alleges, inter alia, that such Notice was filed by his then-attorneys in direct contravention of his expressed desire to proceed with this lawsuit and that he did not learn about the dismissal until September 1. Tyler Dec., ¶¶ 15, 35. He further avers that he has since dismissed those attorneys, but has a "tentative agreement" with another attorney who will represent him herein if the United States decides not to take over the case. Id., ¶¶ 6, 18. Tyler is presently unrepresented by counsel.
According to a Declaration filed by Mark K. Hitman, Esq., Tyler's attorneys had met with the Assistant United States Attorney assigned to this matter and she had told them that, based upon her investigation, there was no "claim" by the defendants which could give rise to a False Claim Act violation and that the defendants had already reported the matters underlying this suit to the United States. Hitman Dec., ¶¶ 18-21. Consequently, the attorneys concluded that this lawsuit lacks merit. Id., ¶ 22.
This action is brought under the False Claims Act, which provides that "[a] person may bring a civil action for a violation of [the Act] for the person and for the United States Government." 31 U.S.C. § 3730(b)(1) (emphasis added). Although Tyler may be entitled to a statutorily-prescribed percentage "from the proceeds," if any, of this lawsuit, id. § 3730(d), "in a qui tam action, the government is the real party in interest." United States v. Northrop Corp., 25 F.3d 715, 720 (9th Cir. 1994); see also United States v. Vt. Agency of Nat. Resources, 162 F.3d 195, 202 (2d Cir. 1998) (holding that the Eleventh Amendment does not bar an individual from prosecuting a qui tam suit under the False Claims Act against a State), cert. granted, ___ U.S. ___, 119 S.Ct. 2391 (1999). It is axiomatic that a non-lawyer may not represent any person or entity other than himself. Rowland v. California Men's Colony, 506 U.S. 199, 201-03 (1993) (listing cases holding that non-lawyers may not represent partnerships or corporations in federal court); Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ("[a] guardian or parent cannot bring suit on behalf of a minor in federal court without retaining a lawyer");In re American West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (per curiam) (holding that a non-attorney may not appear on behalf of a partnership); United States v. High Country Broadcasting Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curiam) (non-lawyer sole shareholder may not represent corporation and was properly precluded from intervening and representing himself where his "interests [were] identical to the corporation's"); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 698 (9th Cir. 1987) (non-lawyer trustee may not appear for trust); Phillips v. Tobin, 548 F.2d 408, 413-15 (2d Cir. 1976) ( pro se litigant may not bring shareholders' derivative action). As the Eighth Circuit Court of Appeals has noted,
This is called a qui tam action because "the plaintiff states that he sues as well for the state as for himself." BLACK'S LAW DICTIONARY 1251 (6th ed. 1990) (emphasis in original).
we do not think that Congress could have intended to authorize a layman to carry on [a qui tam action under the False Claims Act] as attorney for the United States but must have had in mind that such a suit would be carried on in accordance with the established procedure which requires that only one licensed to practice law may conduct proceedings in court for anyone other than himself.United States v. Onan, 190 F.2d 1, 6 (8th Cir.), cert. denied, 342 U.S. 869 (1951).
See also Safir v. Blackwell, 579 F.2d 742, 745 n. 4 (2d Cir. 1978) (suggesting that, where a non-lawyer seeks to prosecute a qui tam suit in propria persona, the correct remedy would be to direct that the action be dismissed "unless an attorney is retained") (citing Onan, 190 F.2d at 6).
The reasons for requiring that an attorney represent non-natural persons were well summarized by the Second Circuit inJones v. Niagara Frontier Transp. Auth., 722 F.2d 20 (2d Cir. 1983):
[T]he conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. The lay litigant frequently brings pleadings that are awkwardly drafted, motions that are inarticulately presented, [and] proceedings that are needlessly multiplicative. In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney's ethical responsibilities, e.g., to avoid litigating unfounded or vexatious claims.Id. at 22.
The exception to the rule that a lawyer must appear for any litigant in federal court is limited to "a person acting personally." C.E. Pope Equity Trust, 818 F.2d at 698. "A federal court rightly expects a lawyer to represent a litigant. By its supervision of the bar and through its reliance on the lawyers before it, the court is enabled to function." Id.
Although Tyler himself has a stake in the outcome of this action, his necessary representation of the United States' interests herein would contravene these well-settled principles. Consequently, Tyler will not be allowed to proceed on this motion in propria persona.
For the above-stated reasons, the plaintiff's motion is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.