Pridgen v. Andresen

• Decision Date: 19 May 1997
• Docket Number: 1413,Nos. 568,D,s. 568
• Citation: 113 F.3d 391
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Hilary PRIDGEN, in her individual capacity as shareholder & director of Microbyx Corp., John Van Raalte, in his individual capacity as shareholder & director of Microbyx Corp., Hilary Pridgen and John Van Raalte, nominally and derivatively on behalf of Microbyx Corp., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. John ANDRESEN, Defendant-Counter-Claimant, Constance Andresen, on behalf of herself and as executrix of the estate of John Andresen, and Microbyx Corp., a nominal defendant, Defendants-Counter-Claimants- Appellants-Cross-Appellees. ockets 96-7428(L), 96-7456(XAP).

Page 391

113 F.3d 391

Hilary PRIDGEN, in her individual capacity as shareholder & director of Microbyx Corp., John Van Raalte, in his individual capacity as shareholder & director of Microbyx Corp., Hilary Pridgen and John Van Raalte, nominally and derivatively on behalf of Microbyx Corp Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. John ANDRESEN, Defendant-Counter-Claimant Constance Andresen, on behalf of herself and as executrix of the estate of John Andresen, and Microbyx Corp., a nominal defendant Defendants-Counter-Claimants- Appellants-Cross-Appellees.

Nos. 568, 1413, Dockets 96-7428(L), 96-7456(XAP).

United States Court of Appeals Second Circuit.

Argued Feb. 12, 1997.

Decided May 19, 1997.

Yvette Harmon, Ross & Hardies, New York City (David B. Zabel, Cohen & Wolf, Bridgeport, CT, of counsel), for Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants.

Constance Andresen, New York City, Pro Se.

Estate of John Andresen, New York City, Pro Se.

Before: JACOBS, CALABRESI, and LAY ^*, Circuit Judges.

JACOBS, Circuit Judge.

In this derivative action, shareholders of Microbyx Corporation ("Microbyx") have won a judgment in the United States District Court for the District of Connecticut (Martinez, M.J.) against John Andresen, the corporation's co-founder, and Constance Andresen. On appeal, the Andresens appeared pro se to challenge the judgment, including the equitable award of attorney's fees pursuant to Delaware law and Fed.R.Civ.P. 23.1, and to defend the cross-appeal in which the shareholders Hilary Pridgen and John Van Raalte challenge the grant of relief as insufficient. John Andresen died after the submission of the Andresens' brief; following convoluted motion practice, the estate of John Andresen has been substituted as defendant-counter-claimant-appellant-cross-appellee. Many of the numerous issues presented on this appeal are decided in a summary order filed simultaneously herewith. We write to consider two issues: (1) whether Constance Andresen may represent the estate of John Andresen pro se, and (2) whether we have jurisdiction to consider the Andresens' appeal from the aspect of the judgment that requires them to pay attorneys' fees, the amount of which has not yet been determined. We summarize only the proceedings that bear upon our disposition of these issues.

The amended complaint alleged that the Andresens, as officers of Microbyx, violated federal securities law, Delaware law, and the Microbyx by-laws, and that John Andresen breached his fiduciary duty of loyalty. In a nutshell, the allegations are that the Andresens raised $2.4 million of capital for Microbyx on the strength of a false representation that Microbyx was close to marketing a tampon testing kit that could detect certain cancers; that much of that money was paid to Sarles Associates ("Sarles"), an entity wholly owned by the Andresens; and that, although the payments to Sarles were made pursuant to a management contract, Sarles provided no services to Microbyx. The Andresens counterclaimed.

Following a two-week trial in October and November 1995, the jury found in favor of the shareholders, and awarded damages in the amount of $850,000 against John Andresen for breach of his fiduciary duty. The district court subsequently entered findings and conclusions as to equitable relief, and permanently enjoined both Andresens from voting certain illegally acquired proxies and from committing any future violations of securities laws or of the Microbyx by-laws. The court also awarded attorney's fees pursuant to Delaware law and Fed.R.Civ.P. 23.1, in an amount to be determined at a separate hearing. A second amended judgment was entered on May 8, 1996.

A

The Andresens had been represented by counsel at trial, but appeared here pro se. In July 1996, the Andresens filed their brief and appendix addressing the issues on the appeal. On August 1, 1996 (before the shareholders filed their responsive brief), John Andresen died. ¹ Constance Andresen then moved pursuant to Fed.R.App.P. 43(a) to substitute herself for her deceased husband. A prior panel of this Court denied that motion without prejudice to renewal upon submission of documentation showing that Mrs. Andresen had been appointed administrix or executrix of John Andresen's estate; the panel expressly reserved decision on whether she could represent his estate pro se. She subsequently renewed the substitution motion, citing her appointment as executrix of her deceased husband's estate by the Connecticut Probate Court, and we granted substitution at oral argument.

The issue remaining from that motion practice is whether or not Mrs. Andresen may appear pro se as executrix of her husband's estate. We need not decide this question categorically because we think the issue can be resolved on the basis of her admission at oral argument that there are creditors of the estate. The representation of this estate thus entails interests other than the interests of Mrs. Andresen alone, and therefore cannot be undertaken by Mrs. Andresen pro se.

The right to proceed pro se in civil actions is guaranteed by 28 U.S.C. § 1654: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Pursuant to this statute, "[a] litigant in federal court has a right to act as his or her own counsel." Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990). See generally O'Reilly v. New York Times Co., 692 F.2d 863, 867-70 (2d Cir.1982).

Nevertheless, appearance pro se denotes (in law latin) appearance for one's self; so that a person ordinarily may not appear pro se in the cause of another person or entity. Thus it is well established that a layperson may not represent a corporation, see Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir.1967) (per curiam), may not assert pro se a claim that has been assigned to the litigant by a corporation, see Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.1983), and may not appear pro se to pursue a shareholder's derivative suit, see Phillips v. Tobin, 548 F.2d 408, 411-12 (2d Cir.1976). We have also held that a layperson may not represent a partnership, see Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1310 (2d Cir.1991), or appear pro se on behalf of his or her minor child, see Cheung, 906 F.2d at 61. These limits on pro se representation serve the interests of the represented party as well as the interests of adversaries and the court. See Jones, 722 F.2d at 22.

We now hold that an administratrix or executrix of an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant. The only other federal court of appeal that has addressed this issue--the Eleventh Circuit--considered it in banc and was equally divided. The district court had disqualified co-representatives of an estate from proceeding pro se on the estate's behalf. A panel of the Eleventh Circuit reversed, see Reshard v. Britt, 819 F.2d 1573 (11th Cir.1987), with Chief Judge Roney dissenting; and the in banc panel split evenly, thereby affirming the district court's order as a matter of law, see Reshard v. Britt, 839 F.2d 1499 (11th Cir.1988) (per curiam) (in banc). We are persuaded by the reasoning of Chief Judge Roney's dissent to the panel opinion: when an estate has...