In re Moody
| Decision Date | 28 February 1989 |
| Docket Number | H-86-3711,H-86-2321,Civ. A. No. H-86-2314,H-86-3973,H-86-3839,H-85-1023,H-86-2317,H-85-4647,H-86-2320,H-86-3974,H-86-2316,H-86-4044,and H-86-4269. |
| Citation | 105 BR 368 |
| Parties | In re Shearn MOODY, Jr., Debtor. Shearn MOODY, Jr., Plaintiff, v. W. Steve SMITH, Trustee, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Shearn Moody, Jr., pro se.
Ben B. Floyd, Bonham, Carrington & Fox, Houston, Tex., for defendant.
MEMORANDUM AND ORDER OF PERMANENT INJUNCTION
1. Judge Carl O. Bue, Jr., one of the premier judges of this or any other court, has aptly described this case as one of the most bizarre and complicated Chapter 11 proceedings on record. One problem in this case has been the continuing proclivity of the Debtor to change counsel at critical junctures during the case. This has resulted in an inordinate amount of judicial attention and cost to the Estate. Since the Debtor filed for bankruptcy in November of 1983, he has been represented by at least four counsel. Mr. Moody's representation has included Jane Ford from June 1983 to November 1984; Briscoe Swan from November 1983 to May 1985; Vidal Martinez and other attorneys from Haight, Gardner, Poor & Havens from May 1985 to January 1986; and Martin Paul Solomon from January 1986 to February 3, 1989. Mr. Moody began representing himself pro se on February 3, 1989. The need for each new counsel to become familiar with the large and complex file has required additional time and has increased the potential cost to the Estate since each new counsel has sought or will seek to charge the Estate for the time and expenses involved in the familiarization process.
2. These problems were further exacerbated when, beginning in December of 1988, Barbara Youngs, a lay person not licensed to practice law, began filing pleadings on behalf of the Debtor, even though the Debtor was then represented by Attorney Solomon. Ms. Youngs has used various terms to describe her representation of the Debtor, including, "next friend," "fiancee," "witness," "paralegal assistant," "lay paralegal," "lay assistant," and "administrative assistant." She has also asserted guardianship and a limited power of attorney over Debtor's estate and affairs due to Debtor's signing of a Designation of Guardianship and a Limited Power of Attorney on December 2, 1988, thereby attempting to act as his agent. Ms. Youngs has also signed pleadings as "Barbara Youngs, Pro Se" and "Shearn Moody, Jr., Pro Se/BSY," and has even gone so far as to tape pieces of paper bearing Moody's alleged signature at the foot of papers that she prepared and then filed with the Court. In response to the Trustee's motions to strike and for sanctions, and since the Debtor had never filed a motion to substitute counsel or to proceed pro se, the Court held a hearing on February 3, 1989, and required the presence of the Debtor at the hearing.
3. Whether the spate of recent filings by Ms. Youngs was intended by her or the Debtor to further delay the final resolution of this proceeding, the Court cannot determine. The Court does find, however, that the effect of these filings has been to frustrate these cases by making it unclear to the Court and counsel which filings accurately represent the Debtor's position. Furthermore, the Trustee and other counsel have had to respond to Ms. Youngs' filings thereby increasing the expenses to all parties and the Estate.
4. Ms. Youngs is no stranger to proceedings of this type. Chief Judge James DeAnda previously found Ms. Youngs had demonstrated a pattern of harassing litigation, and by orders of July 25 and July 31, 1986, in H-85-431, Barbara S. Youngs-Settle v. U.S., enjoined her from filing or intervening in any lawsuit pending in this district. The Order of Permanent Injunction dated July 25, 1986, states inter alia that Barbara S. Youngs-Settle (docket entry No. 129). In a lengthy Memorandum and Order of Dismissal, Judge DeAnda supported the injunction against Ms. Youngs with a detailed discussion of her long and stained history of frivolous litigation (No. 126). As of July 1986, this history included involvement in at least seven federal court lawsuits, all of which were described in some detail and were found to be meritless.
5. The Court finds that Ms. Youngs' attempt to file papers for and otherwise represent Shearn Moody, Jr., whether as his agent, paralegal or intermediary, violates 28 U.S.C. §§ 1651 and 1654 and Federal Rules of Civil Procedure 8, 11, and 12(e) and (f), as well as Judge DeAnda's order of permanent injunction.
6. It is well established that 28 U.S.C. § 1654 allows a party in the courts of the United States to plead and manage his own causes personally or by the assistance of counsel, but a party is not allowed to have an unlicensed lay assistant act as an attorney under the banner of conducting his own defense. Unlicensed laymen are not permitted to represent anyone other than themselves. Turner v. American Bar Association, 407 F.Supp. 451, 478 (N.D.Tex.1975), aff'd, Pilla v. American Bar Association, 542 F.2d 56 (8th Cir. 1976). The Sixth Amendment affords the right of self-representation, not lay representation. U.S. v. Wright, 568 F.2d 142, 143 (9th Cir.1978); U.S. v. Cooper, 493 F.2d 473 (5th Cir.), cert. denied, 419 U.S. 859, 95 S.Ct. 108, 42 L.Ed.2d 93 (1974).
7. Under 28 U.S.C. § 1651, if a party has demonstrated a pattern of frivolous, repetitious, and harassing litigation, a District Court is authorized to enjoin, sua sponte, the party from filing further papers in support of a frivolous claim. There is no constitutional right to prosecute frivolous issues or to file and prosecute motions designed to obstruct justice. See Gordon v. U.S. Department of Justice, 558 F.2d 618 (1st Cir.1977); In re Martin-Trigona, 737 F.2d 1254, 1261-62 (2d Cir. 1984); Urban v. United Nations, 768 F.2d 1497, 1500 (D.C.Cir.1985). An order of injunction pursuant to § 1651 extends to persons "in active concert or participation" with parties to an action under Fed.R. Civ.P. 65(d).
8. Fed.R.Civ.P. 8 authorizes the Court to strike any pleading that violates the general Rule 8 pleading requirements, or that contains material that is scandalous, immaterial or redundant. Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir. 1979); Brainerd v. Potratz, 421 F.Supp. 836 (N.D.Ill.1976). There are numerous Rule 8 violations by Ms. Youngs in this case. For example, in an Emergency Motion for Continuance and for Order Releasing Funds (No. 946), Ms. Youngs asserted that counsel for the Trustee has been illegally converting money of the Estate "by excessive compensation fees for doing nothing but frivolous litigation." In the same motion, Ms. Youngs alleged the existence of a malicious conspiracy by the U.S. Marshal's Service to prevent Mr. Moody from preparing for hearings in this case and to cause Mr. Moody to have "a stroke, heart attack, or just plain kill him" because of the Marshal's Service's plan to transport Mr. Moody by airplane to Houston. Ms. Youngs also referred generally in that motion to "scandalous and outrageous behavior" committed by the federal judiciary, whose goal in handling Mr. Moody's civil actions is supposedly to "harass and belittle and humiliate" Mr. Moody. These same allegations also appear in the January 25, 1989, letter of Ms. Youngs (No. 947). The Emergency Motion to Recuse, Designate Judge, Certify Question and, Alternatively, Memorandum in Support of Petition for Writ of Mandamus and Prohibition (No. 942), drafted by Ms. Youngs, alleged inter alia a conspiracy "to continue the railroading of debtor's bankruptcy matters." These are just a few examples of the scandalous materials contained in numerous papers filed with the Court by Ms. Youngs. Since the pleadings filed by Ms. Youngs have failed to state clearly and concisely her claims so as to give fair notice to the opposing parties of any response they may be required to give, and since these pleadings also contain harassing allegations of conspiracy and other scandalous matters supposedly committed by the Court and counsel involved in Debtor's cases, the Court finds a basis under Rule 8 for prohibiting the filing of further pleadings by Ms. Youngs in the Debtor's lawsuits and for striking all pleadings previously filed by her.
9. Ms. Youngs' pleadings are also graphic violations of Rules 12(e) and (f). The Court recognizes that in motions practice "the particularity requirement is flexible . . . and non-particularized motions have been allowed where the opposing party knew or had notice of the particular grounds being relied upon." 2A J. Moore, Moore's Federal Practice, paragraph 7.05 at 7-16 (2d ed. 1987). However, Ms. Youngs frequently veers off the course of her purported "Motions" to indulge in scurrilous, quasi-paranoidal personal attacks on various federal and state judges, parties and attorneys in this action and third parties.
10. Agran v. Isaacs, 306 F.Supp. 945 (N.D.Ill.1969), is instructive in the present case. Two judicial "gadflies," Sherman Skolnick and Harriet Sherman, sought to intervene as amici curiae in a federal securities class action involving a proposed bank merger. The trial judge ordered the "motion to intervene" stricken under Rule 12(f):
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