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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Saturday, November 1, 2014

Filing Pro Se in Federal Court: Good Idea or Not Good Idea?

This week brings new of a new court opinion involving a transgender employment discrimination plaintiff. However, instead of getting her day in court, the Court gave her the cold shoulder.

Generally, it is not the best idea for a non-lawyer to file their own complaint in federal court. While the United States Equal Employment Opportunity Commission has investigators and lawyers on staff to help you get your facts in the right order to fulfill all the many legal rules, federal courts do not. (I recommend using a lawyer even for filing with the EEOC, if you can find one.) Of course, it is often impossible to find lawyers who will take on a case alleging employment discrimination based on gender identity or expression on a contingency. ("Contingency" means attorney fees are taken from any monetary recovery, rather than being paid upfront, and there are no fees if there is no recovery.) Many lawyers don't understand these cases.

Courts and court clerks do not provide advice on how to file and will not meet with you. They require complaints in very specific legal formats, and they must contain all sorts of information, such as why the court has jurisdiction. While courts generally permit pro se plaintiffs -- nonlawyers who file their own cases -- more latitude, that only goes so far. If you are going to file in court on your own, you should think honestly about your ability to research the court's requirements on the internet, your ability to read fairly complicated legal materials, and your ability to write and follow directions. Many courts have pro se manuals designed to help people file their own complaints. These are extremely useful, but they are somewhat complicated and lengthy, so keep that in mind.  It's reminiscent of trying to do your own surgery -- there are a lot of similar-looking parts in there (e.g., but-for causation and cause in fact), sometimes it's hard to understand the textbook (you try reading this), and it's painful (no citation needed to prove that).

If you fail to follow a rule, the Court does not advise you. Instead, it just dismisses your claim, as happened in the case of Taschner v. Freeman Decorating last week in federal court in Florida. Ms. Taschner wrote her own complaint without help from an attorney. She alleged that her employer discriminated against her because of her transgender identity. She alleges being treated as an outcast, and complains of anti-gay slogans in the work environment. She alleges being dismissed because of a false positive on a drug test, which occurred because of her hormone replacement therapy. She alleges that she passed a subsequent test after she stopped taking the hormone remedy. Nonetheless, she was terminated. This sounds like treatment that violates the Federal Civil Rights Act, and should entitle her to relief.  Instead, the Magistrate Judge recommended immediate dismissal of her claim because of Federal Rule of Civil Procedure 10, which requires numbered paragraphs.

Here is what the Court said in dismissing the complaint:

"[P]laintiff has not presented her claim(s) in such a way that the Court can evaluate whether they meet this standard. While the Complaint contains some allegations that might be intended to support a claim for discrimination, Plaintiff does not identify any particular claim but lumps all of her allegations together in one lengthy paragraph. As such, the Complaint is in violation of Federal Rule 10(b), which requires a party to state its claims in 'numbered paragraphs, each limited as far as practicable to a single set of circumstances,' and to plead each claim in a separate count. Fed. R. Civ. P. 10(b). Without knowing the exact claim Plaintiff is attempting to assert, the Court cannot determine whether she has adequately pled sufficient plausible allegations to support it. Additionally, the papers include various letters to unidentified persons and their purpose as attachments to the Complaint is unclear. Moreover, the Complaint does not specify what relief is sought. In sum, as pled, the Court cannot ascertain whether Plaintiff has pled sufficient factual allegations concerning the elements of any identified theory."

The Court simply did not know what to make of the Complaint, so rather than try to make sense of it, it gets dismissed. The ruling will have to be confirmed by the Judge handling the case, as the Magistrate Judge is a sort of judicial helper who works for the real "Article III" Judge. Also, the recommendation suggests that the Plaintiff be allowed to resubmit, so she can still bring her claim, but she will have to get it up to snuff under the Federal Rules of Civil Procedure.

Taschner v. Freeman Decorating Services, Case No. 6:14-cv-1622-Orl-22DAB (M.D. Fla., October 8, 2014)

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