Commercial Litigation and Arbitration

Less Stringent Review Accorded Pro Se Complaint Even After Twombly and Iqbal — But Not When Filed by Disbarred Lawyer

From Fagan v. United States District Court, 2009 U.S. Dist. LEXIS 63629 (S.D.N.Y. July 24, 2009):

Even after Twombly and Iqbal, when reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel and must construe a pro se complaint liberally. See, e.g., Harris v. Mills, F.3d , 2009 WL 1956176 at *4 (2d Cir. July 9, 2009); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Watson v. McGinnis, 964 F. Supp. at 131; Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980)). However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. . . ." 2 Moore's Federal Practice § 12.34[4][a], at 12-72.7 (2005). Thus, the "'duty to liberally construe a plaintiff s complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b], at 12-61; see also, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege the facts tending to establish" that defendants violated his constitutional rights).

However, pro se attorneys — or in Fagan's case, a pro se disbarred attorney — "typically 'cannot claim the special consideration which the courts customarily grant to pro se parties.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (quoting Harbulak v. County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981)); accord, e.g., Glatzer v. Barone, 614 F. Supp. 2d 450, 451 n.1 (S.D.N.Y. 2009) (Marrero, D.J.) ("The Court takes [plaintiff]'s status as an attorney and former member of a state bar into account in considering the degree of litigational latitude that should be accorded him as a plaintiff."); Gotbetter v. Wendt, 08 Civ. 4868, 2008 WL 5147036 at *3 (S.D.N.Y. Dec. 3, 2008).

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