Landon v. Ply-Gem Windows

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 STEPHEN LEE LANDON, CASE NO. C23-1747JLR 11 Plaintiff, ORDER v. 12 PLY-GEM WINDOWS, 13 Defendant. 14

15 I. INTRODUCTION 16 This matter comes before the court sua sponte pursuant to Federal Rule of Civil 17 Procedure 41(b), which authorizes the involuntary dismissal of actions where the plaintiff 18 fails to comply with a court order. See Fed. R. Civ. P. 41(b). The court previously 19 became aware that pro se Plaintiff Stephen Lee Landon was not actually proceeding pro 20 se in this matter. Rather, Mr. Landon was represented by an individual named Brent 21 Parks, who is not a licensed attorney but a self-proclaimed paralegal employed by a 22 for-profit company called National Legal Assistants (“NLA”). On March 21, 2024, the 1 court ordered Mr. Landon to “either hire a licensed attorney or truly proceed pro se in 2 this matter, meaning [Mr. Landon] must prepare his own pleadings and manage this case

3 without the advice of Mr. Parks or other nonlawyers.” (3/21/24 Order (Dkt. # 20) at 2.) 4 The court now finds that Mr. Landon violated the court’s March 21, 2024 order by 5 continuing to procure legal advice and counsel from Mr. Parks and by filing multiple 6 pleadings that were ghost-written by Mr. Parks. The unauthorized practice of law is 7 criminal in Washington, RCW 2.48.180(3), and utterly intolerable in this court. For the 8 reasons set forth below, the court DISMISSES this action with prejudice pursuant to Rule

9 41(b) based on Mr. Landon’s failure to comply with the court’s March 21, 2024 order. 10 II. BACKGROUND 11 This is an employment dispute between Mr. Landon and his former employer, 12 Defendant Ply Gem Pacific Window Corp. (“Ply Gem”).1 Mr. Landon filed his original 13 complaint in state court on September 26, 2023, raising age discrimination and retaliation

14 claims, among others. (Compl. (Dkt. # 1-2 (stricken)).) Ply Gem timely removed the 15 matter to this court on November 15, 2023. (Removal Not. (Dkt. # 1).) 16 On February 9, 2024, Ply Gem filed a motion to strike Mr. Landon’s amended 17 complaint and for sanctions based on the unauthorized practice of law. (MTS (Dkt. 18 # 13).) Ply Gem argued that Mr. Landon was not actually proceeding pro se and instead

19 was represented by Mr. Parks, a nonlawyer who works for NLA, a company that provides 20 sham legal services to pro se parties in exchange for payment. (Id. at 1); see also Home 21

1 Ply Gem was incorrectly named in this action as “Ply-Gem Windows.” (Removal Not. 22 (Dkt. # 1) at 1.) 1 Page, National Legal Assistants, https://www.nationallegalassistants.com/ 2 [https://perma.cc/CZ72-DKHH]. Ply Gem discovered this information after receiving an

3 email from NLA on which Mr. Parks and several other NLA employees were copied. 4 (MTS at 1; Brandfield-Harvey Decl. (Dkt. # 14) ¶ 2, Ex. 1.) Ply Gem also observed that 5 two of Mr. Landon’s pleadings included a certificate of service signed by Mr. Parks in 6 Denver, Colorado. (MTS at 1; see also Mot. for Leave (Dkt. # 8 (stricken)) at 13; 2/1/24 7 Am. Compl. (Dkt. # 12 (stricken)) at 11.) In support of its motion to strike, Ply Gem 8 provided evidence showing that Mr. Parks and NLA have faced discipline in at least two

9 jurisdictions—California and Colorado—for making a business out of the unauthorized 10 practice of law. (Id. at 3-4; Brandfield-Harvey Decl. ¶¶ 3-4, Exs. 2-3.) 11 The court held a telephone conference on March 21, 2024 and informed Mr. 12 Landon that he may have either intentionally or inadvertently found himself in a situation 13 that the court takes very seriously. (See 3/21/24 Min. Entry (Dkt. # 19).) Although Mr.

14 Landon was not entirely prepared to answer the court’s questions, he nonetheless 15 informed the court that he has no prior legal training and that Mr. Parks, a paralegal based 16 in Colorado, helped prepare his complaint. The court verbally informed Mr. Landon that 17 he must either hire a lawyer or proceed pro se, without the help of Mr. Parks or other 18 nonlawyers. The court then adjourned and entered an order resetting the hearing,

19 granting Ply Gem’s motion to strike, denying its request to sanction Mr. Parks and NLA, 20 granting Mr. Landon leave to file an amended complaint, and ordering Mr. Landon to 21 “prepare his own pleadings and manage this case without the advice of Mr. Parks or other 22 nonlawyers.” (3/21/24 Order at 2-3.) In its written order, the court explained that in 1 Washington, the unauthorized practice of law is a crime and encompasses situations in 2 which “[a] nonlawyer practices law, or holds himself or herself out as entitled to practice

3 law.” (Id. at 2 n.2 (quoting RCW 2.48.180(2)(a)).) The court further explained that 4 [t]he term “practice of law” includes not only the doing or performing of services in a court of justice, in any matter depending therein, throughout its 5 various stages, and in conformity with the adopted rules of procedure, but in a larger sense includes legal advice and counsel, and the preparation of legal 6 instruments and contracts by which legal rights are secured.

7 (Id. (quoting In re Droker & Mulholland, 370 P.2d 242, 248 (Wash. 1962)).) The court 8 warned that if “future pleadings reflect the unauthorized practice of law, the court will 9 not hesitate to strike the affected pleadings, impose sanctions, and dismiss this case.” (Id. 10 (footnote omitted).) 11 A few days later, the court held a second telephone conference. (See 3/25/24 Min. 12 Entry (Dkt. # 21).) This time, Mr. Landon was able to provide more information, 13 confirming that he did not do any of his own legal research and that he paid Mr. Parks to 14 draft his complaint. The court again explained that Mr. Parks’s conduct in providing 15 legal advice and drafting Mr. Landon’s complaint constitutes the unauthorized practice of 16 law, which is criminal in Washington and a matter that the court takes extremely 17 seriously. The court warned Mr. Landon to disassociate from Mr. Parks, adjourned the 18 hearing, and immediately reported Mr. Parks and NLA to the Washington State Bar 19 Association. 20 To date, no attorney has appeared on behalf of Mr. Landon, who purportedly 21 continues to represent himself pro se. (See generally Dkt.) On April 3, 2024, Mr. 22 Landon timely filed an amended complaint. (4/3/24 Am. Compl. (Dkt. # 23).) Ply Gem 1 filed a motion to dismiss for failure to state claim, noting that the latest complaint was 2 substantially identical to the stricken complaint and therefore was “the byproduct of the

3 unauthorized practice of law.” (MTD (Dkt. # 24) at 1 n.1.) That motion remains 4 pending. 5 On April 17, 2024, Ply Gem filed a notice advising that Mr. Landon refused to 6 participate in a Federal Rule of Civil Procedure 26(f) conference. (Notice (Dkt. # 25) at 1 7 (asserting defense counsel attempted to hold the conference but Mr. Landon refused to 8 move forward before hiring an attorney).) The court entered an order the following day

9 (1) instructing Mr. Landon that he must comply with court rules, orders, and deadlines, or 10 risk civil contempt and sanctions including case dismissal, and (2) extending the 11 deadlines to conduct a Rule 26(f) conference and file a joint status report. (4/18/24 Order 12 (Dkt. # 26) at 2 (citing Fed. R. Civ. P. 41(b)).) 13 On April 30, 2024, Mr. Landon filed a “response to defendant’s notice of

14 plaintiff’s refusal to participate.” (1st Resp. (Dkt. # 27).) Mr. Landon asserted that he 15 did participate in the Rule 26(f) conference and thus sought “to correct the record and 16 provide the Court with a truthful account of the events” surrounding the failed 17 conference. (Id. at 1.) Also on April 30, 2024, Mr. Landon filed his response to Ply 18 Gem’s motion to dismiss. (2d Resp. (Dkt. # 28).)

19 In reviewing Mr. Landon’s responsive pleadings dated April 30, 2024—which 20 were signed by Mr. Landon and did not contain any certification by Mr. Parks—the court 21 noticed sophisticated language that appeared consistent with Mr. Landon’s stricken 22 pleadings and likely came from someone with legal training or experience. Suspecting 1 that Mr. Landon may have violated the court’s March 21, 2024 order by filing pleadings 2 that Mr. Parks authored, the court entered a minute order setting an in-person hearing on

3 Ply Gem’s motion to dismiss. (5/22/24 Min. Order (Dkt. # 31) at 2 (instructing the 4 parties to arrive having reviewed and prepared to discuss Ply Gem’s motion as well as the 5 suspicious pleadings).) 6 The hearing took place on June 5, 2024. (6/5/24 Min. Entry (Dkt. # 32).) The 7 court questioned Mr. Landon under oath. During this exchange, Mr. Landon stated that 8 he received notices about case deadlines and hearings through an online platform called

9 “Practice Panther.”2 For example, Mr. Landon claimed to have received notice of a 10 deadline to make a jury trial demand by June 10, 2024, in Mountain Standard Time 11 (“MST”). The court had issued no such deadline and does not use the Practice Panther 12 software. Aware that Mr. Parks is based in Colorado and therefore operates under MST, 13 the court then asked Mr. Landon if he was still involved with Mr. Parks. Mr. Landon

14 answered in the affirmative, stating that Mr. Parks merely reminds him of case deadlines. 15 After further questioning, however, Mr. Landon conceded that Mr. Parks drafted his 16 latest responsive pleadings. In fact, the two had had hours-long phone discussions in 17 which they discussed the content of the pleadings that Mr. Parks ultimately authored and 18 Mr. Landon filed. Ply Gem renewed its concerns that Mr. Landon was facilitating the

19 unauthorized practice of law. The court adjourned, and this order follows. 20

21 2 Practice Panther is a “law practice management software” that law firms purchase and use to manage client cases. See Home Page, Practice Panther, https://www.practicepanther.com/ 22 [https://perma.cc/D5TY-9AXC]. 1 III. ANALYSIS 2 Under Rule 41(b), “the district court may dismiss an action for failure to comply

3 with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); 4 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 5 (recognizing the court’s authority under Rule 41(b) to dismiss actions sua sponte); see 6 also Fed. R. Civ. P. 41(b). The decision to dismiss a case for failure to comply with a 7 court order is within the district court’s discretion and will “not be disturbed unless there 8 is ‘a definite and firm conviction that the court . . . committed a clear error of judgment in

9 the conclusion it reached upon a weighing of the relevant factors.’” Ferdik, 963 F.2d at 10 1260 (quoting Malone v. U.S. Postal Serv., 833 P.2d 128, 130 (9th Cir. 1987)). In 11 determining whether a district court abused its discretion in this context, the Ninth Circuit 12 has emphasized that pro se litigants should be treated “with great leniency.” Id. at 1261. 13 Moreover, “dismissal is a harsh penalty and, therefore, it should only be imposed in

14 extreme circumstances.” Id. at 1260. 15 In determining whether to dismiss a case under Rule 41(b), “the district court must 16 weigh five factors including: (1) the public’s interest in expeditious resolution of 17 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 18 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

19 availability of less drastic alternatives.” Id. at 1260-61 (quoting Thompson v. Hous. 20 Auth., 782 F.2d 829, 831 (9th Cir. 1986)). The court addresses each factor in turn. 21 // 22 // 1 The first factor “always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 2 642 (9th Cir. 2002) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.

3 1999)). 4 The second factor strongly favors dismissal in this case. “The trial judge is in the 5 best position to determine whether the delay in a particular case interferes with docket 6 management and the public interest.” Id.; see also Adriana Int’l Corp. v. Thoeren, 913 7 F.2d 1406, 1412 (9th Cir. 1990) (“Where a court order is violated, the first two factors 8 support sanctions[.]”). This case has been pending for nearly nine months and has yet to

9 proceed beyond the pleading stage. (See Compl. at 1.) Having produced six motions and 10 three hearings (see Dkt. ## 5, 8, 13, 15, 17, 19, 21, 24, 31), this case has consumed 11 precious court time and resources that could have been devoted to other cases on the 12 docket. Of note, it is not this court’s practice to automatically conduct hearings in civil 13 cases. Indeed, this court sets oral argument on civil motions only when it may be helpful

14 to the court and usually in the context of discovery disputes. Mr. Landon’s conduct has 15 unquestionably caused delay and interfered with the court’s ability to efficiently manage 16 its docket. 17 The third factor also strongly favors dismissal. “The district court’s finding of 18 prejudice deserves substantial deference because the district court is in the best position

19 to assess prejudice.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 20 1217, 1228 (9th Cir. 2006) (cleaned up). “A defendant suffers prejudice if the plaintiff’s 21 actions impair the defendant’s ability to go to trial or threaten to interfere with the 22 rightful decision of the case.” Adriana Int’l, 913 F.2d at 1412. Prejudice may “consist of 1 costs or burdens of litigation.” PPA Litig., 460 F.3d at 1228. In addition, “[w]hether 2 prejudice is sufficient to support an order of dismissal is in part judged with reference to

3 the strength of the plaintiff’s excuse for the default.” Malone, 833 F.2d at 131 (holding 4 the plaintiff’s “intentional and unjustified violation of the pretrial order prejudiced the 5 Government in a manner which justifies dismissal”). 6 Here, although no trial date has been set, Ply Gem has nonetheless faced prejudice 7 through the costs and burdens of litigating this matter for nearly nine months with scant 8 progress toward the merits. Mr. Landon has offered no justification for his

9 noncompliance, and the court finds that any possible excuse would be groundless. The 10 court gave multiple verbal warnings that Mr. Landon must disassociate from Mr. Parks 11 and either hire a licensed attorney or truly proceed pro se. Upon striking the tainted 12 pleadings, the court gave express written warning that the unauthorized practice of law is 13 extremely serious and criminal in Washington, defining in plain terms the type of conduct

14 that constitutes unauthorized practice of law. (See 3/21/24 Order at 3 & n.2.) The court 15 again instructed that Mr. Landon “must either hire a licensed attorney or truly proceed 16 pro se in this matter, meaning he must prepare his own pleadings and manage this case 17 without the advice of Mr. Parks or other nonlawyers.” (Id. at 2-3 (footnote omitted)). 18 Thus, the court explained exactly what was prohibited, why it was prohibited, and how

19 Mr. Landon was required to proceed. Compliance was entirely possible—even easy— 20 and Mr. Landon’s noncompliance appears to be knowing, intentional, and in bad faith. 21 Indeed, deliberate steps were taken to conceal Mr. Parks’s involvement after the court 22 expressly barred his participation: (1) the certificate of service signed by Mr. Parks was 1 removed from Mr. Landon’s pleadings; and (2) Mr. Landon later misled the court under 2 oath by stating that Mr. Parks’s continued involvement was limited to reminding Mr.

3 Landon about case deadlines, when in fact the two had engaged in lengthy phone 4 consultations and Mr. Parks had ghost-written multiple pleadings. Accordingly, the court 5 finds that Mr. Landon’s violation was knowing, intentional, in bad faith, and inexcusable, 6 and his conduct has prejudiced Ply Gem in a manner that strongly favors dismissal. 7 The fourth factor weighs against dismissal, as it usually does. Adriana Int’l, 913 8 F.2d at 1406 (“Where a court order is violated . . . the fourth factor cuts against a

9 default.”); see also Malone, 833 F.2d at 133 & n.2 (affirming district court’s exercise of 10 Rule 41(b) where this was the only factor counseling against dismissal). 11 Finally, the fifth factor favors dismissal. This factor requires “reasonable 12 exploration of possible and meaningful alternatives” to case-dispositive sanctions. 13 Anderson v. Air W., Inc., 542 F.2d 522, 525 (9th Cir. 1976); see also Malone, 833 F.2d at

14 131 (noting the court must “consider[] the impact of the sanction and the adequacy of less 15 drastic sanctions” (quoting United States v. Nat. Med. Enters., Inc., 792 F.2d 906, 912 16 (9th Cir. 1986))). Alternative sanctions may include “a warning, a formal reprimand, 17 placing the case at the bottom of the calendar, a fine, the imposition of costs or attorney 18 fees, . . . dismissal of the suit unless new counsel is secured . . . [or] preclusion of claims

19 or defenses.” Malone, 833 F.2d at 132 n.1 (quoting Titus v. Mercedes Benz of N. Am., 20 695 F.2d 746, 749 n.6 (3d Cir. 1982)). “[F]or the prior implementation of a lesser 21 sanction to be a persuasive factor, it must have occurred after the plaintiff’s violation of a 22 court order.” PPA Litig., 460 F.3d at 1229. In addition, “[a] district court’s warning to a 1 party that his failure to obey the court’s order will result in dismissal can satisfy the 2 ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262.

3 Here, the court acknowledges that it has not yet tried lesser sanctions. Although 4 the court struck Mr. Landon’s tainted pleadings and granted him leave to amend the 5 stricken complaint, that occurred before Mr. Landon’s violation of the court’s March 21, 6 2024 order. See Yourish, 191 F.3d at 992 (“[A]llowing the plaintiff to replead is only a 7 less drastic alternative to dismissal once he has already disobeyed a court order.”). 8 Nevertheless, the court concludes that lesser sanctions would be inadequate. Warnings

9 would be futile as the court has already issued repeated warnings to Mr. Landon—both 10 verbal and written—that he must disassociate from Mr. Parks, and he has failed to do so. 11 Placing the case at the bottom of the court’s trial calendar would be illogical as the court 12 has not yet set a trial date, and in any event, this would serve only to further prolong this 13 litigation. “Sanctions such as a fine or the imposition of costs or attorney’s fees would be

14 neither effective nor just if imposed on a pro se litigant of modest financial means.” 15 United States v. $15,333.00 in U.S. Currency, 988 F. Supp. 2d 1229, 1235 (D. Or. 2013). 16 The court has also considered the possibility of dismissing the case without prejudice, but 17 concludes this exercise would be futile in light of Mr. Landon’s bad faith. Given that Mr. 18 Landon has taken deliberate steps to conceal his misconduct, the court is disinclined to

19 simply provide him an opportunity to re-file and continue the same course of misconduct 20 elsewhere. Moreover, the court twice warned Mr. Landon that violating court orders may 21 result in dismissal of his case. (3/21/24 Order at 2-3 (“Should any future pleadings 22 reflect the unauthorized practice of law, the court will not hesitate to strike the affected 1 pleadings, impose sanctions, and dismiss this case.” (footnote omitted)); 4/18/24 Order at 2 2 (“Mr. Landon is advised that he must abide by court orders, rules, and deadlines . . . .

3 The court warns Mr. Landon that failure to comply in the future may result in sanctions, 4 up to and including dismissal of this case.”).) The court therefore concludes that less 5 drastic sanctions are not feasible, and that the court’s prior warnings regarding the 6 possibility of case dismissal support application of Rule 41(b). 7 In sum, four of five factors favor dismissal. The court concludes, upon a careful 8 balancing of these factors, that dismissal with prejudice is warranted under the

9 circumstances. See Malone, 833 F.2d at 133 & n.2 (affirming where four of five factors 10 favored dismissal); Ferdik, 963 F.2d at 1263 (affirming where three of five factors 11 “strongly” supported dismissal). The court further concludes that despite Mr. Landon’s 12 pro se status, the flagrance and criminality of the misconduct renders this an “extreme 13 circumstance[]” meriting dismissal. Ferdik, 963 F.2d at 1260.

14 IV. CONCLUSION 15 For the foregoing reasons, the court DISMISSES this action with prejudice 16 pursuant to Federal Rule of Civil Procedure 41(b). Ply Gem’s pending motion to dismiss 17 pursuant to Federal Rule of Civil Procedure 12(b)(6) is DENIED as moot (Dkt. # 24). 18 Dated this 20th day of June, 2024. A 19 JAMES L. ROBART 20 United States District Judge 21 22