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Hill v. First Financial Bank Shares

United States District Court, N.D. Texas, Abilene Division

March 2, 2017

CHRISTOPHER HILL, et al., Plaintiffs,
v.
FIRST FINANCIAL BANK SHARES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER TO SHOW

          E. SCOTT FROST UNITED STATES MAGISTRATE JUDGE.

         On 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.[1] 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.

         Each 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.

         For 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.").

         Indeed, 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 "Attorney."

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.

         As an 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).

         Although 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.

         As a 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 Motions.

         Because 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.

         "Federal 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).

         To 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.

         In 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 ...


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