Pridgen v. AndresenPridgen v. Andresen
In this derivative action, shareholders of Microbyx Corрoration (“Microbyx“) have won a judgment in the United States District Court for the District of Connecticut (Martinez, M.J.) against John Andresen, the corporation‘s co-founder, and Constance Andresen. On appeаl, the Andresens appeared pro se to challenge the judgment, including the equitable award of attorney‘s fees pursuant to Delaware law and
The amended complaint alleged that the Andresens, as officers of Microbyx, violated federal securities law, Delaware law, and the Microbyx by-laws, and thаt John Andresen breached his fiduciary duty of loyalty. In a nutshell, the allegations are that the Andresens raised $2.4 million of capital for Microbyx on the strength of a false representation that Microbyx was close to marketing a tampon testing kit that could detect certain cancers; that much of that money was paid to Sarles Associates (“Sarles“), an entity wholly owned by the Andresens; and that, although thе payments to Sarles were made pursuant to a management contract, Sarles provided no services to Microbyx. The Andresens counterclaimed.
Following a two-week trial in October аnd November 1995, the jury found in favor of the shareholders, and awarded damages in the amount of $850,000 against John Andresen for breach of his fiduciary duty. The district court subsequently entered findings and conclusions as to equitаble relief, and permanently enjoined both Andresens from voting certain illegally acquired proxies and from committing any future violations of securities laws or of the Microbyx by-laws. The court also awаrded attorney‘s fees pursuant to Delaware law and
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The Andresens had been represented by counsel at trial, but appeared here pro se. In July 1996, the Andresens filed their brief and appendix addressing the issues on the appeal. On August 1, 1996 (before the shareholders filed their responsive brief), John Andresen died.1 Constance Andresen then moved pursuant to
The issue remaining from that motion praсtice is whether or not Mrs. Andresen may appear pro se as executrix of her husband‘s estate. We need not decide this question categorically because we think the issue can be resolved on the basis of her admission at oral argument that there are creditors of the estate. The representation of this estate thus entails interests other than the interests of Mrs. Andresen alone, and therefore cannot be undertaken by Mrs. Andresen pro se.
The right to proceed pro se in civil actions is guaranteed by
Nevertheless, appearance pro se denotes (in law latin) appearance for one‘s self; so that a person ordinarily may nоt appear pro se in the cause of another person or entity. Thus it is well established that a layperson may not represent a corporation, see Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir.1967) (per curiam), may not assert pro se a claim that has been assigned to the litigant by a corporation, see Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.1983), and may not appear pro se to pursue a shareholder‘s derivative suit, see Phillips v. Tobin, 548 F.2d 408, 411-12 (2d Cir.1976). We have also held that a layperson may not represent a partnership, see Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1310 (2d Cir.1991), or appear pro se on behalf of his or her minor child, see Cheung, 906 F.2d at 61. These limits on pro se representation serve the interests of the represented party as well as the interests of adversaries and the court. See Jones, 722 F.2d at 22.
We nоw hold that an administratrix or executrix of an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant. The only other federal court оf appeal that has addressed this issue--the Eleventh Circuit--considered it in banc and was equally divided. The district court had disqualified co-representatives of an estate from proceeding pro se on the estate‘s behalf. A panel of the Eleventh Circuit reversed, see Reshard v. Britt, 819 F.2d 1573 (11th Cir.1987), with Chief Judge Roney dissenting; and the in banc panel split evenly, thereby affirming the district court‘s order as a matter of law, see Reshard v. Britt, 839 F.2d 1499 (11th Cir.1988) (per curiam) (in banc). We are persuaded by the reasoning of Chief Judge Roney‘s dissent to the panel opinion: when an estate has beneficiaries or creditors other than the administratrix or executrix, the aсtion cannot be described as the litigant‘s own, because “the personal interests of the estate, other survivors, and possible creditors will be affected by the outcome” of the procеedings. 819 F.2d at 1583 (Roney, J., dissenting).
Having decided this issue on that basis, we have no occasion to decide whether an administratrix or executrix who is the sole beneficiary of an estate without creditors may appeаr pro se on its behalf.
Our ruling leaves John Andresen‘s estate unrepresented in this Court; however, John Andresen‘s appellate brief was filed during his lifetime, and we have decided the appeal as to his еstate based on that brief. John Andresen had no opportunity to respond to the appellate arguments advanced in the shareholders’ brief, but no reply is necessary for us to reach a decision. Cf.
B
Second, the Andresens challenge the district court‘s award of attorney‘s fees. We conclude that we lack jurisdiction to decide this issue because the district court order awarding attorney‘s fees left open the amount of the fees to be paid.
Circuits are split as to whether there is appellate jurisdiction to review an order awarding attorney‘s fees when the amount of the award remains to be determined. Compare BASF Corp. v. Old World Trading Co., 41 F.3d 1081, 1099 (7th Cir.1994) (citing Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 826-27 (7th Cir.1984)) (review is available, notwithstanding the open amount of attorney‘s fees award, when the appeal of the order awarding fees is consolidated with the appeal from the final order deciding the merits of the action); Andrews v. Employees’ Retirement Plan of First Ala. Bancshares, Inc., 938 F.2d 1245, 1247-48 & n. 6 (11th Cir.1991) (same), with Southern Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th Cir.1993) (per curiam) (no jurisdiction to review an award of attorney‘s fees prior to reduction of thе award to a sum certain); Pennsylvania v. Flaherty, 983 F.2d 1267, 1276 (3d Cir.1993) (same); Phelps v. Washburn Univ. of Topeka, 807 F.2d 153, 154-55 (10th Cir.1986) (per curiam) (same); Gates v. Central States Teamsters Pension Fund, 788 F.2d 1341, 1343 (8th Cir.1986) (same). See generally 15B Charles Alan Wright et al., Federal Practice and Procedure § 3915.6, at 332-35 (2d ed. 1991).
We have held that orders awarding attorney‘s fees as a sanction are not appealable until the amount of the sanction has been determined. See Discon, Inc. v. NYNEX Corp., 4 F.3d 130, 133 (2d Cir.1993); Cooper v. Salomon Bros. Inc., 1 F.3d 82, 84-85 (2d Cir.1993). In so holding, we specifically rejected the Seventh Circuit‘s analysis in Bittner as an unjustified broadening of appellate jurisdiction. See Cooper, 1 F.3d at 85. The same reasoning yields the same result with respect to appellate review of an award of attorney‘s fees generally. See 15B Wright et al. § 3915.6, at 347 (“It is not surprising that the rules of finality for sanction orders parallel the rules for attorney fee awards.“). Although this Court in Synergy Gas Co. v. Sasso, 853 F.2d 59 (2d Cir.1988), adjudicated an аward of attorney‘s fees the amount of which had not yet been set, we later questioned that decision, noting that the availability of appellate jurisdiction had not been raised and that such adjudication “was at most an exercise of pendent appellate jurisdiction.” Discon, 4 F.3d at 133.
C
The motion of Constance Andresen to appear pro se on behalf of the estate of John Andresen is dеnied. The appeal from the grant of attorney‘s fees is dismissed for lack of appellate jurisdiction.