Photo of Stephen McConnell

You have probably heard the old truism about how a person representing him or herself in a lawsuit has a fool for a client. You’d think that having a pro se opponent would make the case a breeze. Not necessarily. When we worked in the U.S. Attorney’s Office, that work seemed harder, not easier, when prisoners scribbled their own complaints and briefs. That meant we faced the extra step of trying to decode what the other side was saying, or even should be saying. That also meant we often faced a judge who was determined to cut plenty of slack for the unrepresented party. To use a technical term, it was a pain.

Today’s case, Vollrath v. DePuy Synthes Bus. Entities, 2020 U.S. Dist. LEXIS 10634 (D. Oregon Jan. 22, 2020), is a splendid illustration of the mischief wrought by pro se parties — and wannabe parties. The case was brought by a pro se plaintiff alleging that this modular hip was defective in both design and manufacture. The complaint included claims of negligence, product liability (including failure to warn), breach of warranty, fraud (including willful concealment), and intentional infliction of emotional distress.

So far so good.

But then the plaintiff’s four minor children, through their mother, appearing pro se, moved to intervene as additional plaintiffs in this lawsuit. These proposed intervenor-plaintiffs asserted “legal and equitable rights to distribution of damages in this case” that were not adequately protected by the plaintiff. They also intended to pursue their own separate claims against the defendants, “not yet asserted,” including claims of emotional distress and loss of guidance, care, and support. The intervention was premised on the assertion that the plaintiff was more than $60,000 in arrears under a court-ordered support obligation and that the plaintiff had refused to communicate with his children since the plaintiff’s injury in 2017.

Thankfully, there actually is law, Federal Rule of Civil Procedure 24, to sort out this mess. There are standards for both intervention of right and permissive intervention. (More on that soon.) Preliminarily, Rule 24 (c) requires that a motion to intervene “be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” That did not happen. Nor did the plaintiff respond to the motion to intervene. But the defendants did file an opposition, arguing that the proposed plaintiff-intervenors did not show that their interests in this lawsuit were protected by law or that there was a relationship between any legally-protected interest they might have and the plaintiff’s claims against the defendants. The defendants further argued that the court should deny permissive intervention on the ground that the claims of the proposed plaintiff-intervenors did not share a common question of law of fact with the plaintiff’s claims.

Let’s break down the standards for intervention of right and permissive intervention. To intervene as of right under Rule 24(a)(2), an applicant must meet four requirements: (1) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the application is timely, and (4) the existing parties may not adequately represent the applicant’s interest. Applicants for permissive intervention under Rule 24(b) must meet three requirements: (1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the movant’s claim or defense and the main action.

The court ruled against the proposed plaintiff-intervenors. First, they had no right to intervene because they could adequately protect their own interest by bringing their own lawsuit, either against the defendants or the allegedly deadbeat dad.

That was the easy part.

Second, the court exercised its discretion to deny permissive intervention. The court expressed a need to proceed “cautiously.” That caution was justified, because it turns out that our recital of the facts above actually understated the messiness. As already mentioned, the four children, in their motion appearing pro se, said that their father, the plaintiff, “has refused the children’s communication and cut contact with them since the injury.” But in their reply in support of the intervention motion, the four children asserted, again through their mother, that their father has “already obtained” orders from a state court in Oregon “granting him sole physical and legal custody and denying Plaintiff’s mother direct contact with the minor children.” The mother then helpfully added that these orders “were only recently vacated” by a judge in an emergency hearing just as enforcement was pending. Huh? The Vollrath court understated things a bit when it observed that “it is not clear who, between (the father and Plaintiff pro se) and (the mother, who also appears pro se and purports to represent the interests of the Proposed Plaintiff-Intervenors), has the legal authority to represent the minor children (the Proposed Plaintiff-Intervenors).” The court concluded that such lack of clarity had “the potential unduly to delay the resolution of this lawsuit, the main action. This potential for delay is an appropriate basis to deny permissive intervention.”

Kudos to the court for refusing to make a messy case even messier. The theory of the proposed intervention, taken to its illogical extreme, would mean that creditors could routinely stick their noses into tort lawsuits. Imagine how crazy that would be. (Then again, some might argue that creditors already are surreptitiously nosing their way into lawsuits. But that’s an entirely different topic.)