The following is cut and pasted from an informal appellate brief I filed in the Ninth Circuit Court of Appeals. The Ninth Circuit does not require pro se litigants to cite caselaw, so I used more of my page allowance to describe the facts of the case in enough detail that the court should know dismissal without leave to amend was an error.

ISSUE:

1. Whether the Southern District of California exhibits a bias against pro se litigants, including me, denying the benefit of co-counsel, not allowing for an alternate advocate if the pro se litigant is ill, and misconstruing caselaw to mean that non-attorneys must communicate as artfully as their adversaries’ hired attorneys. Denying Co-Counsel and putting form above substance is inconsistent with some other districts in circuit and nationwide and with this appellate court.

     For example, before the Defendants filed any response, I moved for leave to hire an attorney to help me with specific acts, including explaining derivative actions to me, giving me practice tips, working on issues that have a fee shifting provision, and standing in for me when I was too ill or the cost of travel was prohibitive. Doc. 11. I filed a second motion to hire an attorney for the distinct task of writing a motion for reimbursement of costs of service of summons on the Shermans Doc. 146, and the court denied it, Doc. 148.

     Examples of the harm: It would cost me more in time and aggravation to write the motion myself than the costs of service; A motion for Rule 11 sanctions against several attorneys for filling MTDs with misstatements of what I wrote in the complaint would cost me even more in time and aggravation, so I did not avail myself of that powerful tool to sanction the misconduct; I was not able to hire a paralegal because they are not allowed to work unless directed by a licensed attorney, so I struggled for countless hours with work that attorneys delegate to paralegals; I had to work while sick, in pain and medicated.  

     Denying me the right to hire counsel for the derivative causes was un-Constitutional on its face and as applied. Effectively, only the moneyed elite, those who can afford the legal fees, are allowed to bring mixed individual and derivative claims in CASD.

     I was not alerted to the fact that courts treat derivative causes of action as void ab initio when written by a non-attorney, as discussed more in questions 6 and 8, section V below. The court should have, in the least, granted leave to hire an attorney for only the derivative causes of action, because I was not allowed to advocate on them.

     When an attorney is ill, he can have another attorney step in for him or at least write a motion for a stay or appropriate extensions of time. In response to seeing some court related emails come through, but not being able to concentrate enough to understand much of it, I sent the following email to judge Linda Lopez and three attorneys on the case on October 1, 2022: “Subject: Hammett incapacitated //Dear Court,// I have COVID and an autoimmune disease. I thought I would be able to write a proposed order for stay of proceedings, but took a turn for the worse quickly today.// I am turning off electronics.// Please extend my time to respond to anything until I am able to function.// Thank you, // Laura Hammett” I was highly medicated, hadn’t eaten for days, could not lift my head, and wrote laying prone.

    Three days later the court sent an email: “Good Afternoon,// The email you recently sent to efile_Lopez@casd.uscourts.gov will not be considered by the Court because the communications contained therein were not authorized by the Court and, therefore, are improper.  Any motions, applications, requests, or notices must be filed in accordance with the Federal Rules of Civil Procedure and Civil Local Rules for the Southern District of California.// Chambers of Judge Linda Lopez”. (Bold theirs)

     This illustrates how the rule that pro se litigants must work alone denies a level playing field and caused me individualized harm. I was physically unable to file a motion and was not allowed to have an attorney do it for me.

      The court cited caselaw that permits the court to hold a pro se litigant to the same legal standard as a represented litigant. The court, probably purposefully, ignored the bountiful caselaw and Judges’ Bench Books on Pro Se Litigants that differentiates between following the law and presenting a case eloquently.

     When the court, as the district court did here, misapplies the technical nuances of the law and legal procedure as a weapon against laymen, i.e. you can’t advocate a derivative action because you are unauthorized to practice law, but you can only bring this cause as a derivative action, and you can’t hire an attorney for that distinct purpose, …the common person will become highly discouraged from seeking redresses in a court of law.  

      I suffered personal harm caused by the defendants conduct. With limited scope representation, motion practice would be easier and should have produced the desired result of proceeding to discovery. But maybe it would not, because…

[followed with a description of the bias the court appeared to have against me personally]

LAW:

1. Right to Limited Scope Representation – The fundamental right to equal protection provided for in the United States Constitution. All classes must be able to present grievances effectively, not only the class that has the most money.

      The various courts throughout the country should endeavor to be consistent. Especially within the same circuit, district courts should be consistent.

     The Southern District of California is inconsistent with its sister court to the north about the right to limited scope representation. Worse, CASD is inconsistent with the Ninth Circuit.

     Ninth Circuit rules allow pro se litigants to write an informal brief without excerpts, citation to the record, and discussion of the standard of review. The district court claims discretion to ease the technical requirements, but in this case, did not. For example, the court denied my motion to exclude the redline copy with my amendments. But the district court in the Eastern District of Arkansas gives a blanket exemption to that requirement to pro se litigants.

     The Ninth Circuit allows pro se litigants to hire an attorney for a distinct task. I retained and paid attorney LaToya Redd to represent me in my proposed interlocutory appeal on the limited issue of the attorney fee award. I was going to argue the failure to enter default against Linda Kramer on my own. But Ms. Redd refused to represent me on any partial representation in district court until I obtained leave of the court, because she had been reprimanded by the district court in Southern California for giving another pro se litigant partial representation.

     Of course, had Mr. Early continued to represent me, or if Ms. Redd was allowed to give me limited scope representation, there would probably have been a different outcome. The case of Schrage v. Schrage in the California Central district had a similar fact set to this one. The difference was that the Schrage brothers were fighting over significantly more money than the SSP sisters. The lone plaintiff brother was able to afford to retain a top-notch law firm. The plaintiff prevailed on the issue of dissolution and was reimbursed his attorney fees. He prevailed on breach of fiduciary duty at the lower court but was overturned at the Cal. Sup. Ct. because he did not bring the cause as a derivative action.

     The court here found much of the harm to be not individualized, and therefore would require derivative pleading. The court also forbid me from hiring an attorney for the limited issue of derivative causes. This is a violation of my right to file a grievance based on my economic class.

     In fact, the caselaw interpreting that an attorney represent a sole minority shareholder in a tightly held corporation when the other shareholders give themselves distributions that are not made to the sole member enables the other members to plunder the company coffers for their own personal use, unless the sole member has enough money to hire an attorney.

     The fee shifting provisions have been rendered meaningless for self-represented, because courts routinely disallow payment of attorney fees to pro se litigants, even when the legislature did not write the word “incurred” in the fee shifting statute. This is another huge bias against pro se litigants.