Bennett v. Public Law Board No. 7694 et al

Filing 28

ORDER terminating 21 Motion for Summary Judgment; terminating 26 Motion for ruling. The Court DIRECTS Mr. John P. Bennett and Mr. Gregory E. Bennett to respond to this Order and SHOW CAUSE why their conduct has not violated Rule 11. All other deadlines in this case are stayed. Signed by Magistrate Judge Christopher L. Ray on 9/11/19. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHN P. BENNETT,
Plaintiff,
v.
PUBLIC LAW BOARD
NO. 7694, et al.,
Defendants.

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CV417-130

ORDER
Plaintiff John P. Bennett, purporting to act pro se, filed this action
challenging his termination by defendant CSX Transportation and
defendant Public Law Board’s denial of his arbitration appeal of that
termination. See doc. 1 at 1-2. He paid the Court’s required filing fee
and proceeded to litigate his case. The assigned district judge granted
unopposed motions to dismiss by, respectively, the Brotherhood of
Locomotive Engineers and Trainmen and the Public Law Board. Doc. 19.
Defendant CSX Transportation, the last remaining defendant, moved for
summary judgment and plaintiff opposed. See docs. 21 & 25. Plaintiff
has also filed a “motion for ruling” on that summary judgment motion.

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Doc. 26. However, it has come to the Court’s attention that the pleadings
may be subject to dismissal under Fed. R. Civ. P. 11.
The Complaint contains the following disclaimer in an unnumbered
footnote to the plaintiff’s designation as “pro se”:
This document was prepared by attorney Gregory E. Bennett,
Ga. Bar #050510 (inactive), Post Office Box 1516, Seymour,
Tennessee 37865, telephone number [phone], email –
[e-mail], at the request of and with
information supplied to him from the pro se litigant. Pro se
litigant has been advised that the attorney preparing this
document has not and does not offer any legal opinion upon
which said litigant can or should rely. Said litigant is also
advised that the above attorney does not represent said
litigant.
Doc. 1 at 4.

This same disclaimer appears on the plaintiff’s

response opposing CSX’s motion for summary judgment and the
“Motion for Ruling.”

See doc. 23 at 5; doc. 26 at 2.

These

notations indicate that critical pleadings in this case, including the
Complaint which initiated it, were “ghostwritten” by an attorney,
who nevertheless seeks to avoid formally appearing or signing his
work.
The preparation of legal documents by an attorney for
signature and filing by an ostensibly pro se litigant is questionable,
at best. Although this Court, to the undersigned’s knowledge, has
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never been forced to confront this practice before, courts have
unanimously condemned it.

See, e.g., Duran v. Carris, 238 F.3d

1268, 1272 (10th Cir. 2001) (An attorney’s “actions in providing
substantial legal assistance to [an ostensibly pro se plaintiff] not only
affords [that plaintiff] the benefit of the court’s liberal construction
of pro se pleadings, [cit.], but also inappropriately shields [the
attorney] from responsibility and accountability for his actions and
counsel.”).

Preparation of briefs—to say nothing of initiating a

case—for filing under the signature of a purportedly pro se party
violates both Rule 11 and the ethical obligations all practitioners
have of candor to the Court. See, e.g., Ellis v. Maine, 448 F.2d 1325,
1364 (1st Cir. 1971) (disapproving, in dicta, “actual members of the
bar represent[ing litigants], informally or otherwise, and prepar[ing]
briefs for them which the assisting lawyers do not sign, and thus
escape the obligation imposed on members of the bar, typified by F.
R. Civ. P. 11, but which exists in all cases, criminal as well as civil,
or representing to the court that there is good ground to support the
assertions made.”); see also In re Hood, 727 F.3d 1360, (11th Cir.
2013) (distinguishing Ellis in case involving an attorney’s filling out
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a bankruptcy form for a pro se Chapter 13 petitioner based on the
“stark contrast to a ghostwritten pro se brief . . . .”); Downey v.
Midland Funding, LLC, 2017 WL 818786, at * 11 (N.D. Ga. Dec. 19,
2017) (noting “this Court’s emphatic condemnation of the practice
referred to as ‘ghost writing’ allegedly pro se complaints,” and
collecting cases).

But see Jona Goldschmidt, In Defense of

Ghostwriting, 29 FORDHAM URB. L. J. 1145 (2002) (arguing that
ghostwriting “does not violate court rules or ethical principles, and
does not threaten the courts’ institutional interests.”). Courts have
condemned such evasion as “ipso facto lacking in candor.” Johnson
v. Bd. of Cnty. Comm’rs for Cnty. of Freemont, 868 F. Supp. 1226,
1232 (D. Colo. 1994), disapproved on other grounds by Johnson v.
Bd. of Cnty. Comm’rs for Cnty. of Freemont, 85 F.3d 489 (10th Cir.
1996). To the extent that John P. Bennett signed the documents in
his pro se capacity, he is similarly bound by Fed. R. Civ. P. 11. See
Fed. R. Civ. P. 11(c) (allowing the Court to impose sanctions on “any
attorney, law firm, or party” who violated the rule).
The Court appreciates that Mr. Gregory E. Bennett included
the disclaimer to alert the Court and opposing parties to his
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involvement. However, the fact remains that he did not sign any of
the pleadings he prepared. See Barnett v. LeMaster 12 F. App’x 774,
779 (10th Cir. 2001) (attorney’s self-identification mitigated, but did
not excuse, violation of Rule 11 by filing a ghostwritten pro se brief);
Ricotta v. California, 4 F. Supp. 2d 961, 985-87 (S.D. Cal. 1998)
(analyzing ghost-writing cases and concluding “that a licensed
attorney does not violate procedural, substantive, and professional
rules of a federal court by lending some assistance to friends, family
members and others with whom he or she may want to share
specialized knowledge. . . . Attorneys cross the line, however, when
the gather and anonymously present legal arguments, with the
actual or constructive knowledge that the work will be presented in
some similar form in a motion before the Court.

With such

participation the attorney guides the course of litigation while
standing in the shadows of the Courthouse door.”).

Pursuant to

Fed. R. Civ. P. 11(c)(3), therefore, the Court DIRECTS Mr. John P.
Bennett and Mr. Gregory E. Bennett to respond to this Order and
SHOW CAUSE why their conduct has not violated Rule 11.

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As this is a matter of first impression, the Court would benefit
from more detailed argumentation than might be customary in
response to a show-cause order.

In particular, the Court wishes

briefing on the following questions:
1. Whether all pleadings, including the Complaint, which
reflect that they were ghostwritten by Mr. Gregory Bennett
are void or merely voidable;
2. If either party contends that the ghostwritten pleadings are
merely voidable, will Mr. Gregory Bennett enter an
appearance in this case and resubmit the pleadings under
his own signature;
3. If the pleadings are void and Gregory Bennett will not enter
an appearance, should this case be dismissed with or
without prejudice? 1
Messrs. Bennett must submit their respective responses, or, if
Gregory Bennett is prepared to enter his appearance, their joint response,
within thirty days of the date of this Order.

Defendant CSX

Transportation shall have fourteen days from the date of plaintiff’s
response to file any reply of its own. Since this issue calls the validity of
the Complaint and plaintiff’s opposition to summary judgment into doubt,

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The issues listed are limited to the implications of the ghostwriting in this case
under Fed. R. Civ. P. 11. Depending upon the outcome of this inquiry, the Court may
institute further disciplinary proceedings, pursuant to Local Rule 83.5, or refer this
matter to the State Bar of Georgia, as appropriate.
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the currently pending motion for summary judgment is moot. The Clerk
is, therefore, DIRECTED to terminate that motion as well as plaintiff’s
“Motion for Ruling.” Docs. 21 & 26. If, after appropriate inquiry, the
Court determines that the defects in the pleadings in this case can be and
are cured, defendant will have an opportunity to renew its summary
judgment motion. All other deadlines in this case are STAYED, pending
further order from the Court.
SO ORDERED, this 11th day of September, 2019.
p
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CHRISTOPHER L. RAY
HRISTOPHER
RI OP
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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