Commercial Litigation and Arbitration

Rule 26(g) Sanctions — Is a Pro Se Litigant Who Also Represents Another Party Eligible to Receive Attorneys’ Fees as a Discovery Sanction? — “Costs” Awardable to a Pro Se Litigant

Zalaski v. City of Hartford, 2013 U.S. App. LEXIS 14898 (2d Cir. July 23, 2013):

Rule 26(g)(1) of the Rules of Civil Procedure provides that all discovery responses "must be signed by" an attorney of record, or by the party personally, if unrepresented, which signature certifies the accuracy of any disclosed information "to the best of the person's knowledge, information, and belief." Rule 26(g)(3) provides the enforcement mechanism for this requirement:

Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.

Fed. R. Civ. P. 26(g)(3); see Chambers v. NASCO, Inc., 501 U.S. 32, 51 (1991) (stating that 26(g)(3) mandate "extends only to whether a court must impose sanctions, not to which sanction it must impose" (emphasis in original)); Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 165 (2d Cir. 1992) (observing that Rule 26(g) "empowers a district court to impose a variety of sanctions for improper" conduct).

The district court sanctioned defendants for violating Rule 26(g) in this case by striking Sergeant Albert's interrogatory responses, but it denied plaintiffs' request for costs and fees, stating as follows: "Defendants note that the Plaintiffs' counsel [i.e., Oatis] is pro se and cite authority indicating that his status as pro se counsel is a bar to such recovery. As the Plaintiffs have not addressed this argument, the Plaintiffs' fee request is denied." Order, No. 08-cv-601 (D. Conn.), ECF No. 60.

Plaintiffs now argue that the district court's ruling rests on an error of law because the general rule that a pro se attorney cannot recover attorney's fees does not apply to a pro se attorney who represents one or more plaintiffs in addition to himself. See Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30, 32 (1st Cir. 1999) (awarding fees under 42 U.S.C. § 1988 to prevailing attorney-plaintiff who represented another plaintiff in addition to himself).

This court has not addressed whether a pro se attorney who represents plaintiffs in addition to himself may be awarded fees. We will not do so in the context of this discovery dispute because plaintiffs failed to raise the argument in the district court, thereby forfeiting it on appeal. See Katel Ltd. Liab. Co. v. AT&T Corp., 607 F.3d 60, 68 (2d Cir. 2010). Accordingly, we affirm the denial of attorney's fees as a discovery sanction.

We note, however, that the district court did not specifically deny plaintiffs' request for costs by reference to counsel's pro se status. Rather, its order is silent on that point. Defendants did not argue in the district court and Albert does not contend on appeal that a pro se plaintiff cannot be awarded costs pursuant to Rule 26(g)(3). See Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986) ("An award of costs to a pro se litigant . . . presents a different question [from that of attorney's fees] because it would represent funds actually expended."). Accordingly, we vacate the judgment only in order to remand this case for the limited purpose of having the district court clarify whether it awards plaintiffs the costs incurred as a result of defendants' discovery certification violation.

Share this article:


Recent Posts