(PS) Schmitz v. Asman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS SCHMITZ, et al., No. 2:20-cv-00195-JAM-CKD PS 12 Plaintiffs, 13 v. ORDER 14 A. ASMAN, et al., (ECF No. 196) 15 Defendants. 16 17 On April 15, 2022, defendants Kevin Kuich and Joe Lizarraga filed what is effectively an 18 ex parte application1 for the court to order plaintiffs, who are proceeding pro se in this action, to 19 disclose whether any attorney has assisted them in this case. (ECF No. 196.) Defendants argue 20 that some of plaintiffs’ filings—particularly their recent motion to strike defendants’ answer and 21 affirmative defenses—contain “telltale signs that manifest the participation of a legal 22 professional” which lead defense counsel to suspect that an attorney drafted some or all of the 23 filings on plaintiffs’ behalf. (Id. at 2.) Defense counsel wrote to plaintiffs to inquire whether an 24 attorney was assisting plaintiffs without disclosing such assistance to the court, and plaintiffs’ 25 response did not answer the question. (Id. at 3-5; ECF No. 196.3 at 6-7.) Defendants now ask the 26 1 Although defendants’ filing includes a Notice of Motion (ECF No. 196.1), the motion was not 27 noticed for hearing, and the filing was docketed rather inexplicably as a Memorandum in Support of plaintiffs’ currently pending Motion to Strike defendants’ answer and affirmative defenses 28 (ECF No. 182). (See ECF No. 196.) 1 | court to order plaintiffs to answer the question, and to admonish plaintiffs and any background 2 || attorneys of the prohibitions against attorneys “ghostwriting” the filings of pro se litigants. (ECF 3 || No. 196 at 8-9.) 4 Without in any way countenancing the practice of “ghostwriting,” the court declines to 5 || issue an order to show cause at this point. See Doe v. City of Newport Beach, No. SA CV15- 6 || 00608 JAK (KESx), 2016 WL 11757785, at *5 (C.D. Cal. Apr. 20, 2016) (“Ghost writing occurs 7 || where a party ‘appears pro se, asserts complete ignorance of the law, and then presents a brief 8 | which, however insufficient, was manifestly written by someone with some legal knowledge.’” 9 || (quoting Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)). 10 The court agrees with the overarching concems and rationales expressed in the authorities 11 || defendants cite. Plaintiffs are cautioned that, going forward, “[i]f a brief is prepared in any 12 || substantial part by a member of the bar, it must be signed by him [or her].” Ellis, 448 F.2d at 13 | 1328. “[A]n attorney’s substantial assistance in drafting a pro se plaintiff's filings raises concerns 14 || regarding fairness and ethics in the legal profession.” Casumpang v. Hawaiian Com. & Sugar 15 || Co., No. CIV. 12-00694 ACK-BMK, 2013 WL 6191087, at *7 (D. Haw. Nov. 25, 2013), aff'd, 16 | 712 F. App’x 709 (9th Cir. 2018); see ABA Model Rule of Prof. Conduct 8.4(c) (attorneys should 17 || not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation”). However, on 18 || this record, the court declines to expend scarce judicial resources investigating whether an 19 || attorney substantially assisted in plaintiffs’ previous filings. 20 Accordingly, defendants Kuich and Lizarraga’s ex parte application (ECF No. 196) is 21 || DENIED. No response from plaintiffs is required. Findings and recommendations on the 22 || pending motions to dismiss and motion to strike will issue in due course. 23 | Dated: April 19, 2022 □□ / dp ai CAROLYNK. DELANEY 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 || 19.schm.0195