Anyone who has experience with litigation knows that the process is full of procedural rules and deadlines. These rules are important, and a judge has the power to dismiss a case with prejudice (meaning that it cannot be brought again) based on a party’s failure to prosecute, failure to obey a court order, or failure to comply with local rules.
Dismissing a case is obviously a serious punishment. Therefore, before dismissing a case based on failing to follow rules, a Court is required to consider the following factors:
- the public’s interest in expeditious resolution of litigation;
- the Court’s need to manage its docket;
- the risk of prejudice to the defendants;
- the public policy favoring disposition of cases on their merits; and
- the availabity of less drastic alternatives.
Courts will often give litigants representing themselves more latitude than lawyers, as pro se litigants may not be as familiar with rules. For example, a judge may be more likely to grant a pro se litigant an extension of time or an opportunity to cure a defect with a pleading. This is especially true for pro se litigants in jail or prison, who may have limited access to the law library.
Although some leniency is understandable, even pro se litigants do not get a free pass from following rules, especially if it prejudices the other side. Here are some tips for ensuring that pro se litigants do not abuse the system:
File notices of non-receipt. When a pro se litigant fails to meet a certain deadline, it can be helpful to point this out to the Court. Most courts are very busy and they will not notice if a deadline is not met unless someone else brings it to their attention. A notice of non-receipt will often prompt the court to issue an “Order to Show Cause” (“OSC”) where the non-compliant party is given one final warning and/or chance to explain to the court why their case should not be dismissed.
Call out dishonesty. Oftentimes there is a legitimate reason why a pro se litigant (like any attorney) cannot make a deadline, such as a family emergency or illness. In the corrections context, a transfer or lockdown may interfere with an inmate’s ability to access his legal materials or the library. However, a pro se litigant may exaggerate or simply lie about circumstances. A litigation coordinator can often provide information about whether the facility is actually in lockdown, if the inmate had access to the law library, or if his property has been transferred. For example, in one case an inmate claimed that he did not have access to the library due to lockdowns; however, the litigation coordinator provided library logs which showed that programming was not modified during the lockdown and the inmate was frequently visiting the library. This information was filed with the court in response to the Plaintiff’s request for another extension of time.
Point out Legal Beagles. Simply because a litigant is representing himself does not mean that he does not have legal experience. In fact, many pro se litigants have been declared vexatious by the courts. The more experience a pro se litigant has, the less likely a court will be to excuse non-compliance with rules. See, “Using a Legal Beagle’s Litigation History Against Him” in the July issue of Prison Break.
Choose your battles. Not every rule infraction rises to the level of sanctions. A court may not look favorably upon a party if it appears that a party is too overzealous in seeking sanctions, especially against a pro se litigant, as the moving party may look like a bully. Additionally, a party does not want to flood a court with unnecessary motions. Therefore, a party should be strategic as to how and when to point out rules violations to the court.
Go through the five factor analysis. If a situation does merit bringing a motion for sanctions and/or dismissal based on failure to follow court rules, it is important to go through the factors a court must consider, outlined above. The first three factors (speedy resolution, managing court’s docket, and prejudice to defendants) often go hand in hand. The more specific examples the better, such as how many extensions a party has received or how long the case has been dragged out. A party can also point out that dismissal of a case is the most appropriate remedy because indigent inmates will often not be deterred by monetary sanctions.
Access to the courts for everyone is an important aspect of the legal system. However, repeated failure to follow rules not only can prejudice the opposing party; it can create backlogs in the entire system. Therefore, it is important to hold all parties, including pro se litigants, accountable to the rules.