United States District Court, N.D. Texas, Abilene Division
MEMORANDUM OPINION AND ORDER TO SHOW
SCOTT FROST UNITED STATES MAGISTRATE JUDGE.
February 21, 2017, James W. Myart, Jr., filed this action on
his own behalf and on behalf of pro se Plaintiffs
Christopher Hill and Harriet Hill (collectively referred to
as "the Hills") through a purported power of
attorney. See Compl. at 1. The litigation
arises under the Equal Credit Opportunity Act
("ECOA"), 15 U.S.C. § 1691, et seq., based
upon allegations that defendants provided insufficient notice
of adverse actions, i.e., denials of loan applications.
See Id. at 1-10. The complaint is replete with
errors that appear to show that it is poorly drafted and most
likely an attempt to cut-and-paste from a prior document.
See, e.g., Id. at 2 ("Venue is proper as the
Defendants transact its business in the Middle District of
North Carolina, Greensboro Division."), 4 ("In or
about February of 2017, CHRIS HILL, HARRIET HILL and JAMES
MYART and her husband, David Hen Plaintiffs C. Hill, H. Hill
and Myart and Myart, submitted a completed joint application
for a loan..."). In addition, the complaint provides
only an address or contact information for Mr. Myart.
plaintiff has submitted an Application to Proceed in District
Court Without Prepaying Fees or Costs (docs. 3, 4, and 5)
(hereinafter "IFP Motions"). However, Mr. Myart did
not sign his application and the other applications were
Dated: their behalf by Mr. Myart through the Power of
Attorney. The application for Harriet Hill states "Will
Supplement" instead of providing the information
requested on the form. See Doc. 4.
purposes of this order, the Court will assume without
deciding that Mr. Myart has a valid Power of Attorney for the
other Plaintiffs. Even with that assumption, however, Mr.
Myart is not authorized to represent any other pro
se party in federal court. By statute, a federal
litigant "may plead and conduct their own cases
personally or by counsel." See 28 U.S.C. §
1654. Based on all information before the Court, Mr. Myart is
no longer an attorney authorized to practice law in Texas or
elsewhere. "Mr. Myart was a practicing attorney for many
years before surrendering his bar card
inlieuofdisbarmentin2008." Myart v. Taylor, No.
5:16-CV-736-DAE, 2016 WL 5376227, at *1 n.1 (W.D.Tex. Sept.
26, 2016); accord Myart v. Glosson, No.
5:16-CV-865-XR, 2016 WL 5389248, at *1 n.1 (W.D. Tex. Sept.
26, 2016) ("Myart used to be a licensed attorney, but
has since resigned in lieu of disciplinary action.").
on June 17, 2008, the Supreme Court of Texas accepted Mr.
Myart's resignation as attorney and counselor at law as
"in the best interest of the public and the
profession." See In re Myart, Misc. Docket No.
08-9072, at 1 (Tex. June 17, 2008). In addition to cancelling
Mr. Myart's law licence and deleting him "from the
list of persons licensed to practice law in Texas, " the
Texas Supreme Court permanently enjoined him
from practicing law in the State of Texas, holding himself
out as an attorney at law, performing legal services for
others, giving legal advice to others, accepting any fee
directly or indirectly for legal services, appearing as
counsel or in any representative capacity in any proceeding
in any Texas court or before any Texas administrative body
(whether state, county, municipal, or other), or holding
himself out to others or using his name in any manner in
conjunction with the words "Attorney at Law, "
"Counselor at Law, " "Lawyer, " or
Id. at 1-2. Furthermore, given Mr. Myart's
ownpro se history of litigation, the Western
District of Texas has barred him filing suit on his own
behalf in that court "without first obtaining leave of
Court and permission from a district judge [to] protect the
court and innocent parties while preserving his legitimate
rights." Glosson, 2016 WL 5389248, at *4.
unlicensed, former attorney, Mr. Myart may not represent
anyone other than himself in this action. Section 1654 does
not permit a non-attorney to represent a litigant in federal
court and even a valid power of attorney does not permit it.
Williams v. United States, 477 F.App'x 9, 11 (3d
Cir. 2012) (per curiam). While a power of attorney "may
confer certain decision-making authority under state law,
" it does not change the requirements of § 1654.
See id.; accord Speed v. Bank of N.Y., No.
3:14-CV-3425-L-BN, 2014 WL 6473420, at *2 (N.D. Tex. Nov. 18,
2014) (recommendation of Mag. J.), case dismissed without
addressing recommendation, 2014 WL 6487291 (N.D. Tex.
Nov. 19, 2014) (declining to address recommendation while
recognizing its correctness). "[T]he holder of a power
of attorney is not authorized to appear pro se on behalf of
the grantor." Estate of Keatinge v. Biddle, 316
F.3d 7, 14 (1st Cir. 2002) (recognizing such principle under
the laws of Maine). To proceed "pro se means to
appear for one's self, " therefore, "a person
may not appear on another person's behalf in the
other's cause." Iannaccone v. Law, 142 F.3d
553, 558 (2d Cir. 1998) (cited with approval in Martin v.
City of Alexandria, 198 F.App'x 344, 346 (5th Cir.
2006) (per curiam)). "A power of attorney relationship
between apro se plaintiff and the individual
appearing on [his or] her behalf does not alter this
principle." Leyfert v. Commw. of Pa. House of
Reps., No. Civ. A. 05-4700, 2005 WL 3433995, at *3 (E.D.
Pa. 2005). Similarly, an "attorney-in-fact" may not
litigate a pro se action on behalf of another.
Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508,
514 (2d Cir. 2001).
some circumstances may warrant filing on another's behalf
as a "next friend, " "individuals not licensed
to practice law by the state may not use the 'next
friend' device as an artifice for the unauthorized
practice of law." Weber v. Garza, 570 F.2d 511,
514 (5th Cir. 1978). Nothing before the Court indicates that
use of the "next friend" device is proper in this
case. When a non-attorney is not qualified to act as a
"next friend, " the non-attorney "may not
participate in the unauthorized practice of law by preparing
legal papers, filing petitions and briefs, and generally
acting as an attorney in violation of state and federal
provisions governing the unauthorized practice of law."
Id. Even a valid power of attorney executed by one
or more of the other pro se plaintiffs does not
invest the non-attorney with such authority. Id.
non-attorney, Mr. Myart "lacks standing to file this
action on behalf of anyone but himself. See Leyfert,
2005 WL 3433995, at *3. "It follows from the rule
prohibiting lay representation that any pleadings filed
through lay representation must be disregarded as a
nullity." Umstead v. Chase Manhattan Mortg.
Corp., No. 7:04-CV-00747, 2005 WL 2233554, at *2 (W.D.
Va. Sept. 13, 2005). Consequently, as to the Hills, the
complaint is void ab initio, see id., and is subject
to dismissal for lack of jurisdiction, see Leyfert,
2005 WL 3433995, at *3. However, from the information before
the Court, it appears that the Hills have simply placed their
trust in Mr. Myart. Nothing indicates that they recognize Mr.
Myart's inability to act as anyone's legal attorney
or that the granted Power of Attorney - even assuming its
legal validity - does not grant Mr. Myart the ability to
proceed with this case on behalf of anyone but himself. At
this stage of the litigation, the Court thus finds that an
outright dismissal of the complaint as to the Hills is not
warranted without providing them an opportunity to cure the
deficiencies of their complaint and their submitted IFP
Mr. Myart is proceeding pro se as permitted by 28
U.S.C. § 1654, the complaint as to him does not suffer
the same procedural defect as it does with respect to the
Hills. Nevertheless, it is not without deficiency. Although
Mr. Myart purports to bring this action on behalf of himself
and the other pro se plaintiffs, it is unclear from
the complaint how he has standing to file the action on his
own behalf. "Article III of the Constitution limits
federal 'Judicial Power, ' that is, federal-court
jurisdiction, to 'Cases' and
'Controversies.'" U.S. Parole Comm 'n v.
Geraghty, 445 U.S. 388, 395 (1980). "One element of
the case-or-controversy requirement is that [plaintiffs],
based on their complaint, must establish that they have
standing to sue." Raines v. Byrd, 521 U.S. 811,
818 (1997). Like all jurisdictional requirements, this
requirement is "not subject to waiver." Lewis
v. Casey, 518 U.S. 343, 349 n. 1 (1996). Furthermore,
the Supreme Court "insist[s] on strict compliance"
with the requirement. Raines, 521 U.S. at 819.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree." Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). "Jurisdiction is essentially the
authority conferred by Congress to decide a given type of
case one way or the other." Hagans v. Lavine,
415 U.S. 528, 538 (1974). Courts "must presume that a
suit lies outside this limited jurisdiction, and the burden
of establishing federal jurisdiction rests on the party
seeking the federal forum." Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001). The courts
"have an inde- pendent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party." Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006); accord Perez v.
Stephens, 784 F.3d 276, 280 (5th Cir. 2015).
satisfy the standing requirement, Mr. Myart "must
establish that he has a 'personal stake' in the
alleged dispute, and that the alleged injury suffered is
particularized as to him." Raines, 521 U.S. at
819. While the complaint alleges that he is
"consumer" and "applicant" for purposes
of the claims under the ECOA and seems to indicate that, with
the other plaintiffs, Mr. Myart completed two loan
applications in order to pay Myart Consulting Group, such
conclusory allegations are insufficient to establish Mr.
Myart's personal stake in this action. To facilitate this
jurisdictional inquiry, the Court directs Mr. Myart to
provide certified copies of the loan applications and other
relevant documents referenced in his complaint.
light of the facts and circumstances of this case, the Court
considers whether Mr. Myart or the other pro se
plaintiffs have engaged in sanctionable conduct. The federal
courts possess the inherent power "to protect the
efficient and orderly administration of justice and ... to
command respect for the court's orders, judgments,
procedures, and authority." In re Stone, 986
F.2d 898, 902 (5th Cir. 1993). Within this inherent power is
"the power to levy sanctions in response to abusive
litigation practices." Id. The Supreme Court,
furthermore, has recognized "that a federal court has
the power to control admission to its bar and to discipline
attorneys who appear before it." Chambers v. NASCO,
Inc.,501 U.S. 32, 43 ...