January 13, 2014 Top Story

No Mercy for Pro Se Litigant

Court affirms $1 million default judgment for discovery abuses in defamation case

Lisa R. Hasday

Pro se parties normally enjoy relative leniency from the courts. But in a recent case before the U.S. Court of Appeals for the Third Circuit, an unrepresented party’s behavior was so egregious with respect to discovery obligations and compliance with court orders that the appellate court affirmed a more than $1 million default judgment, including punitive damages, against the pro se litigant. The ruling reinforces the importance of being responsive to opposing counsel and the court.

A Failure to Participate

The underlying litigation involved a New Jersey attorney’s claim, filed in the U.S. District Court for the District of New Jersey, that the pro se party disseminated false information about the attorney and interfered with the attorney’s law practice. The attorney’s former client and the pro se party were adversaries in separate litigation related to an alleged loan default.

The pro se party’s discovery failures included not responding to interrogatories and requests for document production. In addition, the litigant did not attend a hearing that the district court set. Shortly before the hearing, he sent the court a letter stating he could not attend due to injuries from a motor-vehicle accident, but as the Third Circuit noted, the accident had occurred two months earlier. He did not request any alternative arrangement. The district court went forward with the much-delayed hearing as scheduled and eventually ordered a default judgment pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi), which permits that sanction for failure to obey a discovery order.

The district court also relied on a Third Circuit decision that established a six-factor test for determining the propriety of a default judgment. Those factors are the extent of the potential defaulting party’s personal responsibility, the prejudice to the adversary caused by the party’s failure to meet scheduling orders and respond to discovery, any history of dilatoriness, whether the conduct of the party or the attorney was willful or in bad faith, the effectiveness of sanctions other than dismissal, and the merit of the claim or defense.

On appeal, the Third Circuit determined that the district court did not abuse its discretion in ordering the default judgment. In addition, the appellate court held that the pro se party’s “litigation privilege” defense with respect to his allegedly defamatory speech was “utterly irrelevant.” The litigation privilege provides immunity for statements made in connection with litigation. The Third Circuit explained that the main reason for the default judgment was the pro se party’s failure to comply with discovery obligations and, more generally, his “pattern of delay and contumacious behavior.”

“The lesson from this case is that you need to participate in discovery,” says Benjamin K. Sanchez, Houston, TX, cochair of the Discovery and Motion Practice Subcommittee of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. The litigant also should have given the court more notice that he could not attend the hearing and proposed alternatives such as a telephonic hearing, Sanchez adds. “This guy clearly by his actions didn’t want to participate and didn’t want the hearing to go forward at all.”

Defamation Claims Still Difficult

Because the Third Circuit affirmed the default judgment based mainly on the party’s discovery failures rather than the merits of the litigation, the case should not necessarily encourage practitioners to file defamation lawsuits, remarks Peter C. Meier, San Francisco, CA, cochair of the Remedies Subcommittee of the Section of Litigation’s Business Torts and Unfair Competition Committee.

“There are many reasons why such actions often are not contemplated, let alone filed, even if the statements are harsh or inaccurate,” Meier explains. “These reasons include the wide scope of the litigation privilege and, in some states, ‘anti-SLAPP’ statutes that may protect the speech,” says Meier. The success of a defamation claim, and whether the litigation privilege defense will defeat such a claim, is highly dependent on the extent to which the allegedly defamatory statements relate to the litigation or are made during the course of litigation regarding an unrelated issue, says Cindy C. Albracht-Crogan, Phoenix, AZ, cochair of the Section’s Solo and Small Firm Committee.

While the amount of the judgment in the Third Circuit case is, in Meier’s words, “headline-grabbing,” the amount was not based on the seriousness of the alleged defamatory statements. Instead, the large award was due to the default judgment entered. “In the context of a default judgment, it’s not unusual to have a large award given,” Meier notes.

The plaintiff had sought punitive damages of no less than $350,000, in addition to compensatory damages and other relief. “Once the judge allowed for a default judgment, I’m not sure that the judge cared too much about over-compensating the plaintiff,” says Sanchez. The fact that some of the pro se party’s statements were directed to the attorney’s clients may have weighed in favor of the large award, offers Albracht-Crogan.

Participate or Hire a Lawyer

“Overall this opinion is very good reading material for both young and experienced attorneys because it’s an example of what you shouldn’t do, whether you’re a first-year attorney or a twenty-year attorney,” concludes Sanchez. “The defendant could have saved himself some money if he had truly participated.” Another way the defendant may have avoided paying the large default judgment was to have hired a lawyer, says Albracht-Crogan. “Don’t do this yourself,” she advises.

Lisa R. Hasday is an associate editor for Litigation News.

Keywords: defamation, default judgment, discovery, pro se, Third Circuit

This article presents the views of the author alone and not necessarily those of her employer, the U.S. Department of Justice.

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