Somerset Pharmaceuticals, Inc. v. Kimball

Citations: 168 F.R.D. 69; 36 Fed. R. Serv. 3d 1010; 1996 U.S. Dist. LEXIS 10790; 1996 WL 419859Docket: No. 94-247-CIV-T-17A

Court: District Court, M.D. Florida; July 5, 1996; Federal District Court

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Plaintiff Somerset Pharmaceuticals, Inc. initiated a multi-count complaint against Defendant James T. Kimball and others on June 4, 1993, alleging various violations including federal racketeering laws, state racketeering statutes, misleading advertising, and unfair trade practices. Defendant initially retained Attorney Bruce G. Howie, who filed a motion to withdraw as counsel on May 2, 1994, leading to the Court permitting Defendant to proceed pro se. Following this, Plaintiff filed a Motion to Strike all of Defendant's pleadings on March 28, 1996, arguing that Defendant improperly benefits from undisclosed legal counsel while claiming to represent himself, thus undermining the fairness of the proceedings. 

In response, Defendant contended that his pro se status was a result of financial constraints and that he had previously collaborated on legal arguments with his attorneys. Additionally, Defendant maintained that he authored his pleadings and used Plaintiff's pleading style as a reference. Defendant also filed a Motion to Strike Plaintiff's Motion, asserting it violated procedural rules due to the elapsed time since his last pleading and claiming that Plaintiff's motion was made in bad faith to delay proceedings and harass him.

Plaintiff asserts that Defendant’s lengthy response and Motion to Strike support the claim that Defendant is receiving undisclosed legal assistance, which creates an unfair advantage by allowing Defendant to file pleadings under lenient standards. Plaintiff seeks to strike all of Defendant’s pleadings since he began representing himself pro se in May 1994, arguing that Defendant's use of a “ghost writer” undermines honesty and prejudices Plaintiff. To substantiate this claim, Plaintiff submitted a memo allegedly authored by Defendant in 1990, comparing it to a pleading from 1995, arguing that the differences in writing style indicate that they could not have been produced by the same person. Defendant contends that the memo was dictated to a secretary and that he did not review it before signing. The Court notes that while the writing styles differ, the comparison between a hastily written memo and formal legal pleadings is inappropriate. The Court recognizes that a pro se litigant can improve their legal skills over time. Although Plaintiff cites the Johnson v. Board of County Commissioners case as precedent for striking pleadings due to ghostwriting, the Court finds this case distinguishable as it involved an attorney representing a client, not a pro se litigant. Overall, the Court concludes that more substantial evidence is needed before it can strike Defendant’s pleadings based solely on allegations of ghostwriting.

Defendant's pro se pleadings are under scrutiny, with Defendant asserting full involvement in their formulation and research, countering allegations of reliance on another attorney for drafting. Unlike in Johnson, where an attorney's assistance was confirmed, Defendant denies such claims and maintains he uses Plaintiffs’ pleadings as a guide. Plaintiff cites Klein v. Spear, Leeds, Kellogg to argue that the quality and volume of Defendant's pleadings suggest undisclosed attorney assistance. However, the Court finds this interpretation too strong, emphasizing that while some legal advice is permissible, extensive undisclosed participation is not. The Klein case involved a habitual litigant with a record of irresponsible behavior, which is not present in Defendant's case. Defendant admits to receiving some assistance but insists on doing his own legal work. Plaintiff's assertions are based on an informal memo and subjective opinions about the pleadings' quality, which the Court argues does not prove the need for a ghostwriter. Additionally, the Court questions the fairness of Plaintiff's claims, noting the delay in raising these concerns and the consistent quality of Defendant's pleadings since he attained pro se status. Ultimately, the Court appears skeptical of Plaintiff's allegations of unfairness and prejudice.

Plaintiff alleges that Defendant violated Rule 11 of the Federal Rules of Procedure by failing to disclose the true identity of the author of his pleadings. The Court acknowledges that if Plaintiff has evidentiary support for these claims, they could constitute a Rule 11 violation, which prohibits knowingly signing false or unfounded pleadings. However, the Court recommends that the extensive relief sought by Plaintiff should be pursued through a separate motion for sanctions.

The Court also points out its general disfavor towards motions to strike, denying them unless the allegations are entirely irrelevant and prejudicial to a party. In this case, Plaintiff's allegations are related to the ongoing controversy and could significantly prejudice Defendant. Defendant argues that Plaintiff’s Motion to Strike is untimely under Rule 12(f), as the twenty-day period for such a motion has passed, although the Court retains the authority to strike pleadings at any time.

Defendant contends that Plaintiff failed to cite relevant federal rules or case law supporting the relief requested, and that the cases cited (Johnson and Klein) do not substantiate Plaintiff’s claims. Additionally, Defendant claims that Plaintiff's motion was filed in bad faith, intending to delay proceedings as discovery nears completion. Plaintiff asserts that the alleged inequities stem from Defendant's use of an unidentified legal source and believes the only remedy is to strike Defendant’s pleadings or allow for an evidentiary hearing.

The Court finds no compelling basis for granting Plaintiff’s Motion to Strike, noting that it lacks sufficient factual support. Striking all of Defendant's pleadings based on the current evidence would be highly prejudicial to Defendant. Consequently, Plaintiff's Motion to Strike and Defendant's Motion to Strike Plaintiff's Motion to Strike are both denied.