Lawsuit initiated by a pro se litigant in violation of 28 USC § 1654; Dismissal; Whether a complaint filed in violation of the statute is curable by later retaining legal counsel or is a “legal nullity”; Jones ex rel Jones v Correctional Med Servs, Inc (8th Cir); Iriele v Griffin (11th Cir); In re IFC Credit Corp (7th Cir); Motion for reconsideration; Introduction of evidence that could have been presented earlier

In an issue of first impression for the court, it held that while “§ 1654 prohibits pro se litigants from proceeding on behalf of third parties,” filing a lawsuit in violation of the statute does not “render the complaint a nullity.” Thus, it concluded that the district court erred in granting defendants’ motion to dismiss on this basis. The suit was filed by the father (Isham) of plaintiff-estate’s decedent, on behalf of the estate, without the assistance of counsel. “The district court determined that Isham could not represent the estate pro se and ordered Isham to retain counsel. [He] complied with that order, but the district court dismissed the estate’s complaint nonetheless, concluding that the lawsuit’s pro se origins rendered the complaint a nullity from the outset.” On appeal, the court first rejected plaintiff’s argument concerning the district court’s denial of its motion for reconsideration, which related to evidence purportedly establishing Isham’s ability to proceed pro se. “Reconsideration is not a vehicle to introduce evidence that could have been presented beforehand[,]” and the new documents presented with the motion did not contain “late-breaking information that couldn’t have been offered the first time around.” The court then turned to the question of what “happens when a pro se litigant initiates a lawsuit in violation of § 1654? Is the defect curable by later retaining counsel, as the estate sees it? Or is any complaint filed contrary to this statutory requirement a ‘legal nullity,’” destined for dismissal? In Jones, the Eighth Circuit ruled that such a complaint was “a ‘nullity’ to which no ‘subsequent pleadings’ could ‘relate back.’” But in Iriele, “the Eleventh Circuit rejected the Eighth Circuit’s ‘nullity rule’ under nearly identical facts.” And the Seventh Circuit took a similar approach in IFC Credit, “a case involving pro se representation of a corporation, permitting but not requiring ‘dismissal’ as a ‘discretionary’ ‘sanction.’” The court joined them in rejecting “the Eighth Circuit’s nullity rule.” It noted that its cases had “not treated a complaint filed in violation of § 1654 as being subject to mandatory dismissal.” And it saw “no sound basis to depart from this practice in favor of the Eighth Circuit’s mandatory dismissal rule.” Here, when Isham retained counsel, he “brought the estate’s lawsuit into compliance with § 1654, and the statute no longer provided a basis for dismissal.” Reversed and remanded.