Typically, when a business is sued, the plaintiff is represented by an attorney. In response, the business engages legal counsel of its own to vigorously defend the suit. But if the plaintiff is pro se—i.e., representing himself or herself—and the suit seems meritless, the business may feel less urgency to incur the expense of legal counsel. It does so at its peril.
ALTHOUGH PRO SE COMPLAINTS SEEM INFORMAL, THEY STILL REQUIRE A FORMAL AND TIMELY RESPONSE
A business may hesitate to hire an attorney to formally respond to a pro se litigant’s allegations because those allegations may seem informal or meritless. The complaint might be handwritten, allege fantastical conspiracies, or go on for page after page with little substance. But however seemingly unofficial or meritless, a complaint that is properly filed and served cannot be ignored without risking a default and, potentially, liability to the plaintiff. See Fed. R. Civ. P. 55(b) (West 2015); CPLR 3215(a) (McKinney 2015). A defaulting defendant can avoid liability for the amount demanded in the complaint only by convincing a court that the default should be excused. See Fed. R. Civ. P. 55(c), 60(b) (West 2015); CPLR 5015(a) (McKinney 2015). At best, then, a defendant that ignores a pro se complaint will have to hire an attorney to convince the court to vacate the default. At worst, the defendant will be liable for the judgment.
PRO SE COMPLAINTS ARE OFTEN RIPE FOR DISMISSAL
Instead of avoiding pro se complaints, businesses should address them head on, as such complaints might be subject to dismissal. For example, pro se litigants often file complaints that do not meet legal pleading requirements or lack cognizable claims.
In federal court, a complaint must assert sufficiently detailed factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). Legal conclusions that are couched as factual allegations do not suffice, and a complaint must contain sufficient factual allegations to show “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 555). Many pro se complaints lack sufficient facts to state a claim for relief;pro se litigants often rely instead on speculation or bald conclusions. While courts will read a pro se complaint with some degree of leniency, the pleading standards still apply and complaints that are insufficiently pled are subject to dismissal.See, e.g., Grabauskas v. C.I.A., 381 F. App’x 45, 46 (2d Cir. 2010) (“Even when read with the ‘special solicitude’ due pro se pleadings, the complaint fails ‘to state a claim to relief that is plausible on its face’” (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474‑75 (2d Cir. 2006) and Twombly, 550 U.S. at 570) (citation omitted)).
For example, in Martinez v. Queens County District Attorney, No. 12‑CV‑06262‑RRM‑RER, 2014 WL 1011054 (E.D.N.Y. Mar. 17, 2014), aff’d, 596 F. App’x 10 (2d Cir. 2015), a case in which Phillips Lytle was an attorney of record, the plaintiff alleged a violation of 42 U.S.C. § 1983, claiming that, for several years, his ex‑girlfriend, her relatives, and judges, prosecutors, family‑court attorneys, police departments, state agencies, healthcare providers, and telecommunications companies in New York and Pennsylvania conspired to injure him in various unconstitutional ways. Section 1983 provides a cause of action against only state actors, or those who conspire with state actors. The telecommunications companies (“Telecom Defendants”) moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), on the ground that the plaintiff had failed to specify how they conspired with state actors. The district court agreed that the plaintiff had failed to “show the existence of any agreement or concerted action between [the Telecom Defendants] and any state actors,” and dismissed the suit. Martinez, 2014 WL 1011054, at *15.
The basis for the Telecom Defendants’ successful motion in Martinez—failure to state a claim upon which relief can be granted—is one of a host of grounds that must be asserted before the defendant answers the complaint. See Fed. R. Civ. P. 12(b) (West 2015). In federal court, defendants usually have 21 days to answer the complaint or make a pre‑answer motion to dismiss. See Fed. R. Civ. P. 12(a), (b) (West 2015). In New York Supreme Court, the period ranges from 20 to 30 days, depending on the method of service. See CPLR 320(a), 3211(e) (McKinney 2015). Since a pro se plaintiff’s allegations are likely to be disorganized or muddled, it is all the more important for a business‑defendant to promptly retain an attorney who can review the complaint to determine whether to answer or make a pre‑answer motion to dismiss the complaint. The time pressure is particularly heightened in a pro se case because, while a defense attorney can often obtain an extension of time from opposing counsel, it is more difficult to obtain an extension from pro se litigants, who may be unaware or unconcerned with the courtesies of the legal profession, or simply unreachable.
COUNSEL CAN HELP AVOID COSTLY DISCOVERY
Missing a chance to move against a meritless lawsuit means that a business will have to engage in discovery with the pro se plaintiff. This can be a burdensome and expensive enterprise, as a pro se litigant’s behavior in discovery is unpredictable. See Paul B. Zuydhoek, Phillips Lytle LLP, Litigation Against a Pro Se Plaintiff, 15 No. 4 Litigation 13, 14 (1989) (observing that pro se plaintiffs often ignore discovery rules,“refuse to respond to discovery requests, and try to extort settlements”). For one thing, pro se litigants may see discovery as an opportunity to retaliate against or embarrass an entity he or she feels has done him wrong. Pro selitigants’ lack of knowledge of procedural rules may further complicate discovery. Attorneys know that, for example, their clients may not depose a company executive without showing that the executive was personally involved in conduct alleged in the complaint.See Alliance Indus., Inc. v. Longyear Holding, Inc., No. 08‑CV‑490‑S, 2010 WL 4323071, at *4 (W.D.N.Y. Mar. 19, 2010); Broadband Commc’ns Inc. v. Home Box Office, Inc., 157 A.D.2d 479, 480 (1st Dep’t 1990). Attorneys also know that their clients are not entitled to serve unlimited interrogatories. See Fed. R. Civ. P. 33(a) (West 2015); 22 N.Y.C.R.R. § 202.70, Rule 11‑a(a) (West 2015). Pro selitigants, on the other hand, might not know these common discovery rules, causing them to notice depositions of a company president who had no involvement with the subject of the lawsuit or to serve hundreds of interrogatories. Motion practice will be required to strike the offending deposition notice or interrogatories. See also Zuydhoek, supra, at 16 (“Most pro se litigants have no concept of the purpose or scope of discovery. They often ignore requests to produce and interrogatories; responses are usually conclusory and argumentative.”).
Discovery with pro se litigants can be time consuming, frustrating and expensive. Acting promptly, and takingpro se filings seriously, maximizes the defendant’s opportunity to win the case before it gets that far.
SETTLEMENT DISCUSSIONS ARE MORE PRODUCTIVE, AND A SETTLEMENT IS MORE SECURE, IF COUNSEL IS INVOLVED
Many businesses refuse to settle with pro se plaintiffs, lest they encourage meritless suits brought solely to obtain an easy payout. But in some instances, a business may choose to settle. In this context too, involving an attorney is wise. Where there is a history of animosity between the business and the pro se litigant, it may be more productive for an attorney to negotiate a settlement. To the extent a business is able to resolve the dispute directly with the pro se litigant on its own, it is important to ensure that the settlement truly ends the dispute. Simply settling with and paying a pro se litigant may not be good enough. Without proper documentation of the settlement, a court could find that the payment did not fully release the pro se litigant’s claim. A negotiated settlement agreement and release prepared by an attorney will provide finality to a settlement and ensure that the legal proceeding is properly terminated and removed from the court’s docket. A more formal settlement agreement can also include other terms important to the business, like confidentiality, non‑disparagement, and return of information.
In short, when a business is faced with a complaint filed by a pro se litigant, its best chance to end the case quickly and efficiently is to consult with an attorney as soon as possible.