Pappas v. Philip Morris, Inc.

17-3842-cv
Pappas v. Philip Morris, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2018
Submitted: November 5, 2018 Decided: February 12, 2019
Docket No. 17-3842-cv
HAZEL B. PAPPAS, INDIVIDUALLY AND AS ADMINISTRATIX AND SOLE BENEFICIARY OF
THE ESTATE OF JAMES PAPPAS, CASSANDRA PAPPAS, MARKOS PAPPAS,
Plaintiffs-Appellants,
— v. —
PHILIP MORRIS, INC., AKA PHILIP MORRIS USA, AKA PHILIP MORRIS USA INC.,
Defendant-Appellee.
B e f o r e:
LYNCH and HALL, Circuit Judges, and ENGELMAYER, District Judge.*
Hazel B. Pappas, pro se, seeks to pursue several Connecticut state-law
liability claims against Philip Morris, Inc., on behalf of the estate of her late
*
Judge Paul A. Engelmayer, of the United States District Court for the Southern
District of New York, sitting by designation.
husband, who died of respiratory and heart diseases after years of smoking
Marlboro cigarettes. The district court dismissed certain of Pappas’s claims,
holding that Connecticut law would not allow her to represent the estate pro se,
and dismissed her other claims on the ground that they were barred by the
statute of limitations. The order of the district court is AFFIRMED in part and
VACATED in part, and the case is REMANDED for further proceedings.
Hazel B. Pappas, pro se, Cassandra Pappas, pro se, New Haven,
CT; Markos Pappas, pro se, Berlin, NH, for Plaintiffs-
Appellants.
Keri L. Arnold, Arnold & Porter Kaye Scholer LLP, New York,
NY; Paul W. Rodney, Arnold & Porter Kaye Scholer
LLP, Denver, CO, for Defendant-Appellee.
GERARD E. LYNCH, Circuit Judge:
Plaintiff-Appellant Hazel B. Pappas (“Pappas”) seeks to bring several
Connecticut law claims, pro se, against Defendant-Appellee Philip Morris, Inc.
(“Philip Morris”), on behalf of the estate of her late husband, who died of
respiratory and heart diseases after years of smoking Marlboro cigarettes,
manufactured by Philip Morris. The United States District Court for the District
of Connecticut (Alvin W. Thompson, J.) dismissed Pappas’s complaint, holding
that certain of her claims were barred by the statute of limitations and that she
could not bring the remaining claims pro se, since with respect to those claims she
2
was representing not herself, but the estate of her late husband. Pappas appealed.
For the reasons that follow, we VACATE the dismissal of Pappas’s claim under
the Connecticut Product Liability Act (“CPLA”), her derivative claim for loss of
spousal consortium, and the claim of Plaintiffs-Appellants Cassandra and
Markos Pappas for loss of parental consortium, and REMAND for further
proceedings. We AFFIRM the district court’s order in all other respects.
BACKGROUND
Acting pro se, Pappas filed a products liability suit against Philip Morris in
the district court pursuant to its diversity jurisdiction, asserting claims both on
her own behalf and on behalf of her late husband’s estate, of which she is
Administratix. She alleges that in or about the late 1950s, her late husband, James
Pappas, was lured into cigarette smoking by a marketing strategy and conspiracy
among tobacco companies to glamorize smoking and portray it as a normal and
non-dangerous part of American culture. For over five decades, James Pappas
smoked Marlboro cigarettes manufactured by Philip Morris. As a result of
smoking cigarettes, James Pappas contracted respiratory and heart diseases that
led to his death on June 19, 2013, at the age of 79. In or about March 2016, a
medical professional informed Pappas that James Pappas’s smoking Marlboro
3
cigarettes caused and aggravated the respiratory and heart disease that killed
him.
On June 15, 2016, Pappas, and her two children with James, Cassandra and
Markos Pappas, filed a complaint stating claims against Philip Morris for (1)
violating the CPLA, Conn. Gen. Stat. § 52–572m, et seq., and Connecticut Unfair
Trade Practices Act, Conn. Gen. Stat. § 42–110a, et seq., (“CUTPA”); (2) loss of
spousal consortium; (3) loss of parental consortium; and (4) negligent infliction of
emotional distress (“NIED”). In support of Pappas’s ability to litigate the action
pro se, Cassandra and Markos Pappas filed disclaimers of interest in their father’s
estate, and Pappas filed an affidavit stating that to her knowledge James Pappas
has no known creditors or debtors. As a result, Pappas contends that she is the
sole beneficiary of James Pappas’s estate.
The district court held a hearing to determine, among other things,
whether Pappas could represent the estate pro se. After briefing by the parties, the
district court dismissed Pappas’s, Cassandra’s, and Markos’s complaint under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Pappas v. Philip Morris USA Inc., No. 3:16-cv-
932(AWT), 2017 WL 6629298 (D. Conn. June 21, 2017).
4
The district court dismissed Pappas’s CPLA claim, which belongs to James
Pappas’s estate, on the ground that Pappas could not bring that claim pro se. The
court held that because it was sitting in diversity jurisdiction, it had to apply
Connecticut law to the question of whether Pappas could represent the estate pro
se, and under Ellis v. Cohen, 982 A.2d 1130 (Conn. App. Ct. 2009), she could not
do so. Ellis explains that under Connecticut law, a litigant may appear pro se only
to represent her own cause, and that individuals may not appear pro se when
they are suing in a representative capacity. Id. at 1133. The district court rejected
the applicability of a Second Circuit case, Guest v. Hansen, 603 F.3d 15 (2d Cir.
2010), in which this Court held that the administrator of an estate could represent
the estate pro se under certain conditions, on the grounds that Guest was decided
under New York law. The district court also dismissed Pappas’s loss of spousal
consortium claim, and Cassandra’s and Markos’s loss of parental consortium
claims, on the ground that those claims were derivative of the dismissed CPLA
claim.
The district court also dismissed the CUTPA claims and NIED claims as
time-barred by their respective three- and two-year statutes of limitations. The
district court further ruled that, even if the CUTPA claims were not time-barred,
5
Pappas’s CUTPA claims would still fail because the CPLA, not CUTPA, provides
the exclusive remedy under Connecticut law for a party seeking recompense for
injuries caused by a product defect.
Having thus dismissed all the claims in the complaint, the district court
ordered the case closed. Pappas and her children moved to amend the judgment
under Fed. R. Civ. P. 59(e), asserting numerous arguments. The district court
denied the motion. Pappas and her children timely appealed.
DISCUSSION
We write to correct the district court’s error in applying Connecticut law to
the question of whether Pappas can represent the estate of her late husband pro
se, an issue we review de novo. See Principal Nat’l Life Ins. Co. v. Coassin, 884 F.3d
130, 134 (2d Cir. 2018).
I. The Conflict Between Federal and Connecticut Law
Connecticut law and federal law appear to conflict on the issue of whether
Pappas can represent the estate pro se. In Guest, this Court held that a pro se
plaintiff could represent an estate when the plaintiff is the estate’s only
beneficiary and the estate has no creditors. 603 F.3d at 21. Contrary to the district
court’s belief, that holding was not based on New York law. Although the
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jurisdiction of the Guest Court was based on diversity of citizenship, and the
Court applied New York law to the substantive issues before it, id. at 21–22, the
portion of the Guest opinion discussing whether the estate could be represented
by a pro se litigant relied exclusively on 28 U.S.C. § 1654 and federal cases
governing the practice of law in federal courts, referencing New York law only to
identify the nature of the substantive claims being pursued. Id. at 20–21.
The Guest holding was rooted in § 1654. That statute provides that “[i]n all
courts of the United States the parties may plead and conduct their own cases
personally or by counsel as [permitted] by the rules of such courts, respectively.”
28 U.S.C. § 1654. As the Court explained, § 1654 limits parties to pleading and
conducting their own cases personally, because “the law contains so many
esoteric pitfalls for an untrained advocate . . . that the risk of inadvertent waiver
or abandonment of an issue is too high for us to allow a pro se litigant to represent
another person.” Guest, 603 F.3d at 20. Nevertheless, the Court continued, when
the administrator and sole beneficiary of an estate with no creditors seeks to
appear pro se on behalf of the estate, she is in fact appearing solely on her own
behalf, because she is the only party affected by the disposition of the suit. Id. at
21. Under those circumstances, the assignment of the sole beneficiary’s claims to
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a paper entity—the estate—rather than to the beneficiary herself, is only a legal
fiction. Id.
Connecticut law apparently provides otherwise. In Connecticut, “a person
who has not been admitted as an attorney . . . shall not . . . [p]ractice law or
appear as an attorney-at-law for another, in any court of record in [Connecticut],”
Conn. Gen. Stat. Ann. § 51–88(a), and Connecticut state courts have interpreted
that statute to prohibit pro se representation of an estate. See e.g., Milner v. Beckett
Corp., No. HHDCV115035597S, 2012 WL 527628, at *3 (Conn. Super. Ct. Jan. 25,
2012) (“[T]he plaintiff could not, in a pro se capacity, represent his father’s
estate.”); Sedich v. Waynik, No. CV 970348505S, 1998 WL 328043 at *1 (Conn.
Super. Ct. June 15, 1998) (“An administrator is the personal representative of the
estate and its beneficiaries and cannot bring a suit as a pro se.”) (internal
quotations marks omitted). In Ellis, 982 A.2d at 1133–34, the Appellate Court of
Connecticut held that the executor of an estate has no right of self-representation,
and thus an executor’s pro se appearance in court on behalf of the estate
constituted the unauthorized practice of law.1 Because Connecticut law and
1
We note that no Connecticut court has addressed the narrow question of
whether there is an exception to the rule that a pro se litigant can only represent
herself, where the pro se litigant seeks to represent an estate that has no creditors
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federal law are in conflict on this point, we must decide which applies in the case
before us.
II. The Erie Doctrine
The district court held that it was required to apply Connecticut law on
this question under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). In Erie,
the Supreme Court construed the Rules of Decision Act, § 34 of the Judiciary Act
of 1789, which provides that: “[t]he laws of the several states, except where the
Constitution or treaties of the United States or Acts of Congress otherwise
require or provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.” 28 U.S.C. § 1652. Erie
stands for the proposition that, as a general matter, a federal district court sitting
in diversity jurisdiction must apply the substantive law of the state in which it sits.
See Erie, 304 U.S. at 78.
However, the Constitution also vests Congress with the power “[t]o
and of which she is the only beneficiary. Connecticut cases all state the rule
banning pro se litigants from representing anyone other than themselves in
absolute terms, see e.g., Expressway Assocs. II v. Friendly Ice Cream Corp. of
Connecticut, 642 A.2d 62, 64 (Conn. App. Ct. 1994), and we found no case
suggesting the existence of any exceptions. Under the circumstances, we assume,
as do the parties, that the district court correctly interpreted Connecticut law as
not recognizing the exception adopted as a matter of federal law in Guest.
9
constitute Tribunals inferior to the supreme Court” and “[t]o make all Laws
which shall be necessary and proper for carrying into Execution” that power.
U.S. Const. art I, § 8, cls. 9, 18. Thus, while “Congress has no power to declare
substantive rules of common law applicable in a state,” Erie, 304 U.S. at 78, “Erie
and its offspring cast no doubt on the long-recognized power of Congress to
prescribe housekeeping rules for federal courts even though some of those rules
will inevitably differ from comparable state rules,” Hanna v. Plumer, 380 U.S. 460,
473 (1965); see Erie, 304 U.S. at 72–73 (“[T]he purpose of [section 34] was merely to
make certain that, in all matters except those in which some federal law is controlling,
the federal courts exercising jurisdiction in diversity of citizenship cases would
apply as their rules of decision the law of the state . . . .”) (emphasis added).
Erie and its progeny thus require us to reconcile two different edicts: the
command that federal courts must honor applicable state substantive law on the
one hand, and the integrity of the federal courts as an independent judicial
system on the other. See 19 Charles Alan Wright et al., Fed. Prac. & Proc. Juris.
§ 4501 (3d ed.). Where state and federal law are in conflict, we reconcile those
principles by asking whether the federal law or rule “regulate[s] matters
rationally capable of classification as procedure.” Shady Grove Orthopedic Assocs.,
10
P.A. v. Allstate Ins. Co., 559 U.S. 393, 406 (2010) (internal quotation marks
omitted); accord Hanna, 380 U.S. at 472 (“[T]he constitutional provision for a
federal court system (augmented by the Necessary and Proper clause) . . .
includes a power to regulate matters which, though falling within the uncertain
area between substance and procedure, are rationally capable of classification as
either.”). Procedure is “the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering remedy and redress
for disregard or infraction of them,” Hanna, 380 U.S. at 464, while substantive law
is the law that governs the rights and obligations of individuals within a given
jurisdiction, see Shady Grove, 559 U.S. at 407. When deciding what law to apply in
federal court, we also consider whether disregarding the law that would control
in state court would significantly affect the result of the litigation in federal court.
See Hanna, 380 U.S. at 466. That “outcome-determination test,” however “cannot
be read without reference to the twin aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable administration of the laws.” Id. at
468.
III. Federal Law Governs Legal Practice Before the Federal Courts
The district court misread both Erie and Guest in concluding that
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Connecticut’s rule controlled the circumstances in which a party may appear pro
se in federal court. We now make explicit what was implicit in Guest: that § 1654,
and federal rules interpreting it, are procedural in nature and therefore must be
applied by federal courts in diversity cases. Who may practice law before a
federal court is a matter of procedure—which Congress and the federal courts
have the power to regulate—notwithstanding contrary state law.
Federal courts have discretion to adopt such rules as are necessary to carry
out the business of the courts. See Frazier v. Heebe, 482 U.S. 641, 645 (1987); Fed. R.
Civ. P. 83. That authority includes the regulation of admissions to a court’s own
bar. Frazier, 482 U.S. at 645. “The authority to adopt rules relating to admission to
practice before the federal courts was delegated by Congress to the federal courts
[by] Section 35 of the Judiciary Act of 1789 . . . now codified as 28 U.S.C. § 1654.”
Brown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985). Thus, while “attorneys
practicing in federal court are charged with . . . the duty to conform to the state
code of professional responsibility,” Shabbir v. Pakistan Int’l Airlines, 443 F. Supp.
2d 299, 306 (E.D.N.Y. 2005), district courts have the “right and duty . . . to
regulate the proceedings and the counsel who come before [them],” In re
September 11 Litig., 236 F.R.D. 164, 172 (S.D.N.Y. 2006).
12
The Seventh Circuit said as much in Elustra v. Mineo, 595 F.3d 699 (7th Cir.
2010). In Elustra, the Court had to determine the validity of a motion filed by a
non-lawyer mother on behalf of her minor and adult daughters, after the
daughters’ lawyers had been discharged. Id. at 703–04. The Court recognized that
its first decision was whether it should look to state or federal law to resolve the
problem. Id. at 704. It noted that, “[o]n the one hand, Fed. R. Civ. P. 17(b)
provides that ‘capacity to sue’ is defined by state law.” Id. But, on the other hand,
federal courts are entitled to use their own procedures, whether jurisdiction is
based on a federal question or on another ground such as diversity of citizenship
or supplemental jurisdiction. Id. The Court noted that the validity of a motion
filed by a non-attorney representative had “less to do with the capacity to sue
than it does with the right to act in court, which is normally a matter regulated by
the rules of professional conduct.” Id. Because “[f]ederal courts have the inherent
authority to adopt their own rules . . . federal law [] dictate[d] whether [the
mother] was entitled to act for one or more of her three daughters in the way that
she did.” Id.
Indeed, district courts regulate, by means of their local rules, who may
practice before them. For example, District of Connecticut Local Civil Rule 83.1 is
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titled “Admission of Attorneys.” Its subsection (a) states that:
Any attorney of the Bar of the State of Connecticut or of
the bar of any United States District Court, whose
professional character is good, may be admitted to
practice in this Court upon a Petition for Admission, in
form and substance prescribed by subsection (b) of this
Rule, after paying the admission fee, taking the proper
oath, and signing the Roll of Attorneys Admitted to the
Bar of the United States District Court for the District of
Connecticut.
Subsection (d) also regulates the admission of visiting attorneys by motion. The
District of Connecticut thus does not require attorneys appearing before it to be
licensed to practice in Connecticut state courts.
The ability of federal courts to regulate those who appear before them
cannot be controlled by state law. “The two judicial systems of courts, the state
judicatures and the federal judiciary, have autonomous control over the conduct
of their officers, among whom . . . lawyers are included.” Theard v. United States,
354 U.S. 278, 281 (1957) (lawyers admitted to practice in federal court are not
automatically disbarred when the state disbars them); see United States v. Dinitz,
538 F.2d 1214, 1219 (5th Cir. 1976) (“Since attorneys are officers of the courts
before which they appear, such courts are necessarily vested with the authority,
within certain limits, to control attorneys’ conduct.”). Both we and the Supreme
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Court have recognized those principles.
In Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir. 1966), we had to
determine whether a California lawyer who represented a client in federal court
in New York, but was not admitted to practice law in either New York state
courts or in the federal district court, could recover attorney’s fees from his client.
The client, who was trying to avoid paying his former lawyer, argued that, under
the circumstances of the case, the New York courts would refuse to grant
recovery to the lawyer. Id. at 165. We rejected that argument, however, holding
that “it is within the power of the federal government to determine who will be
permitted to practice in its courts and that this includes allowing compensation
for services rendered in regard to litigation in the federal courts,” even when the
attorney would not be able to recover in state court. Id. That is so because “the
rules of the federal courts concerning admission of attorneys have long
recognized that experts in federal law should be permitted, when appropriate, to
conduct litigation in the federal courts regardless of whether they have been
admitted to practice in the state in which the court sits.” Id. at 166.
The Supreme Court itself has recognized the same principle. In Sperry v.
State of Florida ex rel. Florida Bar, 373 U.S. 379, 381 (1963), the plaintiff was a
15
Florida resident registered to practice before the United States Patent Office
(“USPO”), but not admitted to practice law in Florida, or indeed in any other
state. The Florida Bar instituted proceedings against him in the Supreme Court of
Florida, alleging that he was engaged in the unauthorized practice of law because
although he was not a member of the Florida Bar, he, inter alia, maintained an
office in Florida, held himself out to the public as a Patent Attorney, represented
Florida clients before the USPO, and rendered opinions as to patentability. Id.
The Florida Bar sought to enjoin the plaintiff from performing such acts within
the state. Id. The Supreme Court of Florida concluded that the plaintiff’s conduct
did constitute the unauthorized practice of law, which the state could properly
prohibit acting under its police power, and that neither federal statute nor the
federal Constitution “empowered any federal body to authorize such conduct in
Florida.” Id. at 382.
The United States Supreme Court reversed, holding that Congress had
provided the Commissioner of Patents with the ability to prescribe regulations
governing the recognition and conduct of agents, attorneys, and other persons
representing applicants before the Patent Office. Id. at 384, 404. The Court
reasoned that “registration in the Patent Office confers a right to practice before
16
the Office without regard to whether the State within which the practice is
conducted would otherwise prohibit such conduct.” Id. at 388. See also Servidone
Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 911 F. Supp. 560, 574 (N.D.N.Y.
1995) (“There is, of course, no question that the right to practice in federal court
includes the right to appear there not withstanding state laws which regulate the
practice of law.”) (citation omitted).
Federal courts routinely regulate who can appear in federal court (and
how they can appear) in ways that promote efficient court administration and the
orderly administration of justice without infringing on state-created substantive
rights. See, e.g., Merchant Cash & Capital, LLC v. Progressive Rent A Car, Inc., 16 Civ.
3720 (AMD) (VMS), 2018 WL 4268908, at *2–3 (E.D.N.Y. Aug. 15, 2018) (applying
federal law to conclude that a pro se plaintiff could not represent a corporation
while applying New York law to the underlying substantive claims); Avent v.
State Farm Fire and Cas. Co., No. 5:16-CV-278-BO, 2017 WL 4171971, at *2
(E.D.N.C. Sept. 20, 2017) (noting that pro se plaintiff attempting to litigate on
behalf of estate would need to show that she is the only beneficiary of the estate
and that the estate has no creditors); Georgiades v. Martin-Trigona, 729 F.2d 831,
834 (D.C. Cir. 1984) (applying federal law to conclude that the defendant’s son,
17
who was not a lawyer, could not be admitted to represent the defendant).
Similarly, several federal courts have explicitly concluded that § 1654 is a
procedural rule, and have therefore applied it notwithstanding contrary state
law. See, e.g., United States v. Louisiana, 751 F. Supp. 608, 614 (E.D. La. 1990) (“As a
federal court of competent jurisdiction over this case . . . this Court has both the
federal statutory and inherent judicial power to resolve who may be permitted to
appear before it and how appearances before it may be conducted. . . . Thus,
neither state statutes nor state courts can be dispositive of any dispute over
representation of a party in this federal court case.”); Western Life Ins. Co. v.
Nanney, 296 F. Supp. 432, 440 (E.D. Tenn. 1969) (“[N]o provision of Tennessee law
regulating the practice of law in the state courts could obstruct in any way such
practice under the rules of a federal court, 28 U.S.C. § 1654. In the light of any
incompatibility between Tennessee law and the aforecited federal statute, state
law must yield to the federal legislation.”).
Connecticut’s substantive law will not be affected by permitting Pappas to
file motions, conduct depositions, or represent the estate at trial. Nothing about
Connecticut’s rule disallowing pro se litigants from representing an estate, or
about the reasoning of Ellis, indicates to us that the rule advances any important
18
Connecticut policy other than the orderly administration of its own court system.
Moreover, the district court erred in distinguishing Guest as a case “decided
under New York law.” Pappas, 2017 WL 6629298, at *3. As documented above,
the ruling in Guest was based on federal law.
Allowing a pro se plaintiff to represent an estate does come with its own set
of concerns. As we explained in Guest, 603 F.3d at 20, and in other cases, see e.g.,
Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983), litigation by a
non-lawyer creates unusual burdens not only for the party she represents but
also for her adversaries and the court. But that a pro se plaintiff may have
difficulty navigating the complex legal process and that it may pose an extra
burden on the court, gives us no reason to believe that this federal rule
encroaches on any Connecticut substantive law, would give rise to forum
shopping, or would occasion the inequitable administration of the laws. See
Hanna, 380 U.S. at 468. The rule pertains solely to the orderly conduct of litigation
before the federal court, and does not regulate the conduct of persons in the
community. It is procedural—not substantive—and therefore a matter of federal
law even in a diversity case.
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IV. Other Claims
The district court dismissed Pappas’s loss of spousal consortium claim,
and Cassandra’s and Markos’s loss of parental consortium claims, solely on the
ground that those claims were derivative of the CPLA claim, which was
dismissed due to Pappas’s pro se status. Our reversal of the dismissal of the CPLA
claim necessarily reinstates the derivative consortium claims.
Pappas makes no arguments on appeal with regard to the district court’s
dismissal of her CUTPA and NIED claims as time-barred. She has therefore
abandoned those claims, and we accordingly affirm their dismissal.
CONCLUSION
For the reasons stated above, we VACATE the judgment of the district
court, insofar as it dismissed Pappas’s claims under the CPLA and the derivative
consortium claims, and AFFIRM the order of the district court, insofar as it
dismissed Pappas’s other claims on statute of limitations grounds.
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