Summary
consolidating and then dismissing case because identical to claims in earlier filed case against Bunting's employer
Summary of this case from ZHU v. FEDERAL HOUSING FINANCE BOARDOpinion
Civil Action No. 01-2067-KHV
May 10, 2001
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Xiangyuan (Sue) Zhu and Ye Zhu bring suit against Countrywide Realty, Company, Inc. ("Countrywide"); Wittmer Farm Realty Company, Inc. ("Wittmer"); Bunting Appraisal Services; the law firm of Fisher, Cavanaugh, Smith Lemon, P.A.; and individual defendants Marc E. Bunting, Robert Thomas, Candace Thomas and attorney Thomas G. Lemon. This matter comes before the Court on plaintiffs' Motion To Consolidate (Doc. #2) filed February 8, 2001 and defendants' Motion To Disqualify (Doc. #32) filed April 3, 2001. After carefully considering the parties' arguments and authorities, the Court is ready to rule.
Background
Plaintiff's complaint, filed March 13, 2001, alleges claims under Section 818 of the Fair Housing Act Amendments of 1988 and 42 U.S.C. § 1982 (Count I); fraudulent and negligent misrepresentation during negotiation of a real estate contract, violation of Kansas consumer protection statutes, breach of real estate brokers' duties, negligent performance of voluntary undertakings, malicious prosecution, intentional infliction of emotional distress and civil conspiracy (Count II); and violations of 42 U.S.C. § 1962(c) (Count III) and 1962(d) (Count IV). The complaint is signed by Xiangyuan (Sue) Zhu, who proceeds pro se. It alleges that Ye Zhu is the minor daughter of Xiangyuan (Sue) Zhu. Zhu has another case pending in this Court, alleging identical claims against many of the same defendants. See Zhu v. Countrywide Realty, Company, Inc., et al., Case No. 00-2290-KHV.
I. Motion To Consolidate (Doc. #2)
The amended complaint in this matter contains the same allegations and claims for relief as those in plaintiff's second amended complaint in Zhu v. Countrywide Realty, Company, Inc., et al., Case No. 00-2290-KHV. Plaintiff asks the Court to consolidate the two cases. Defendants argue that because the earlier case is significantly nearer to trial than this case, consolidation would confuse the issues and prejudice defendants.
Federal Rule of Civil Procedure 42(a) allows the Court to consolidate "any or all the matters in issue in the actions" if the actions involve a "common question of law or fact." The decision whether to consolidate such actions is left to the sound discretion of the trial court. See Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978). In exercising its discretion, the Court should consider whether judicial efficiency is best served by consolidation. See Lemons v. Bd. of County Com'rs of County of Brown, Nos. 00-2292-KHV and 00-2297-CM, 2001 WL 395395 (D.Kan. Mar. 30, 2001) (citing Johnson v. Unified Gov't of Wyandotte County/Kansas City, Kan., No. 99-2407-JWL, 1999 WL 1096038, at *1 (D.Kan. Nov. 16, 1999); Fields v. Atchison, Topeka Santa Fe Ry. Co., No. 95-4026-DES, 1996 WL 109536, at *1 (D.Kan. Feb. 7, 1996)).
The Court sustains plaintiff's motion to consolidate the two cases. They involve the same parties, occurrences and transactions and identical questions of fact and law. Because the cases are identical, the Court orders plaintiff to show cause in writing on or before May 21, 2001 why this case should not be dismissed without prejudice. The interests of judicial efficiency do not appear to be served by hearing the same contentions twice under different case numbers.
II. Motion To Disqualify (Doc. #32)
Defendants contend that plaintiff may not represent her minor daughter in this action since she is a pro se litigant and not an attorney. Plaintiff responds that under 28 U.S.C. § 1654, she and her daughter may plead and conduct their cases personally and that Fed.R.Civ.P. 17(c) allows an infant's legal guardian or representative to bring suit on his or her behalf. Under 28 U.S.C. § 1654, "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." This statute allows litigants to proceed either pro se or through counsel, not in any other manner. The statute does not permit pro se litigants to represent other parties, even their own children. See Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (pro se litigant had right to appear in propria persona, but did not have right to represent his daughters). The Tenth Circuit has specifically held that "under Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney." Id. In addressing this issue, another court in this district remarked:
It goes without saying that it is not in the interests of minors and incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected. There is nothing in the guardian-minor relationship that suggests that the minor's interests would be furthered by representation by the non-attorney guardian.
Oltremari by McDaniel v. Kansas Social Rehabilitative Service, 871 F. Supp. 1331, 1362 (D.Kan. 1994). Plaintiff cannot represent her minor daughter since she is a pro se litigant. All proceedings as to Ye Zhu are stayed pending entry of appearance by qualified counsel on her behalf. If such counsel has not entered an appearance by June 15, 2001, the Court shall dismiss her claims without prejudice for lack of prosecution.
IT IS THEREFORE ORDERED that plaintiff's Motion To Consolidate (Doc. #2) filed February 8, 2001 be and hereby is SUSTAINED. Furthermore, plaintiff is ordered to show cause in writing on or before May 21, 2001 why this case should not be dismissed without prejudice since it is apparently redundant in view of Zhu v. Countrywide Realty, Company, Inc., et al., Case No. 00-2290-KHV.
IT IS HEREBY FURTHER ORDERED that defendants' Motion To Disqualify (Doc. #32) filed April 3, 2001 be and hereby is SUSTAINED. All proceedings as to Ye Zhu are stayed pending entry of appearance by qualified counsel on her behalf. If such counsel has not entered an appearance by June 15, 2001, the Court shall dismiss her claims without prejudice.