Pro Se It Ain’t So: Self-Represented Attorney in Putative TCPA Class Action Found by Court Not to be Qualified to Represent Class
In Doyle v. Fla. Health Sol., Inc., No. 17-12231 (JMV) (MF), 2018 U.S. Dist. LEXIS 148340 (D.N.J. Aug. 29, 2018), the court had to determine – at the pleading stage – whether a pro se plaintiff who is a licensed attorney could represent a putative nationwide class.
The self-represented plaintiff in that case was a New York lawyer who claimed that the defendant violated the TPCA by calling his cell phone without consent, and sought to represent a putative class defined as:
All persons within the United States who received messages [*6] soliciting Defendant’s services, from Defendant or its agents, to said person’s residential or cell telephone, initiated by Defendant through the use of an artificial or prerecorded voice within the four years prior to the filling [sic] of the Complaint.
The court in Doyle had previously dismissed the plaintiff’s complaint on the basis that his allegations failed to show he could adequately represent the putative class. In his original complaint, plaintiff had alleged that he had already retained counsel, but none had appeared in the case. In the amended complaint, it appears the plaintiff tried to cure this issue by alleging he was an attorney licensed in New York, who would himself “fairly, adequately, and tenaciously represent and protect the interests of the class.”
According to the ruling in Doyle, plaintiff argued that it was “unfair” and “premature” to rule on the adequacy of counsel at the pleading stage because (1) “there is not yet any class so there does not have to be class counsel” and (2) the court should not make this ruling until a motion for certification is made. But the court rejected the argument, noting that courts are empowered at the pleading stage to consider whether a self-represented litigant has plausibly pled the requirements of a Fed. R. Civ. P. 23(a) class action. Indeed, the court noted an apparent consensus that “pro se plaintiffs cannot represent and protect the interests of the class fairly and adequately.”
The court went on to address whether plaintiff had plausibly pled adequacy of counsel. First, it found that although plaintiff alleged he was a licensed attorney, he failed to specify what if any general or TCPA class action experience he had. But according to the court, the plaintiff had also applied to proceed in forma pauperis, and in support of his application stated he “is not able to work as an attorney at this time,” which suggested to the court that – even aside from the lack of allegations establishing class action experience – plaintiff would not be able to perform the necessary duties in representing the class. According to the court, plaintiff had also stated in his in forma pauperis application that he could not afford the filing fees for his complaint, which made it “clear to the Court that [plaintiff] does not have the resources necessary to handle class action litigation,” considering such litigation usually involves “massive costs” and “requires large amounts of resources.”
Thus, the court was left unpersuaded that that plaintiff had plausibly alleged that he could adequately represent the interests of the class. However, the court gave plaintiff one last shot, and while dismissing the class claims in his amended complaint without prejudice, allowed plaintiff 30 days to retain adequate class counsel.