pro se recycling goes Over and Above

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David Lat at Above the Law (Dec. 15, 2006) and Ted Frank at Overlawyered.com (Dec. 18, 2006) scooped their journalistic competition over the past few days with the fascinating tale of Ward v. Arm & Hammer, the “whacky,” “most frivolous ever” pro se  lawsuit by a federal prisoner in New Jersey.  Fark.com picked up the story from Lat’s legal tabloid on Dec. 16, and their blurb has already been clicked on almost 14,000 times.

ArmHammerLogo   The case is indeed bizarre:  Lat has posted the entire complaint, and gives this summary: “Pro se litigant George Allen Ward is suing Arm & Hammer and its corporate parent, Church & Dwight, for $425 million. His theory of liability: failure to warn. The company failed to warn him that if he cooked up their product, baking soda, with cocaine, he might end up serving a 200-month prison sentence on crack cocaine charges.” 

What is even more bizarre, perhaps, is the fact that the decision in Ward v. Arm & Hammer, 341 F.Supp.2d 499, was issued by the Federal District Court in NJ on Oct. 21, 2004. and the granting of in forma pauperis status to Ward for his appeal by the Third Circuit — which was the point that so irked Ted Frank in the original version of his post — is dated Dec. 15, 2004.   That’s right: two years ago.  My Grandpa Bart might call this revisiting of an old wound Anniversary Agita.  Grandma Bettina might have prescribed some baking soda for that upset stomach.

Click to take ATL‘s “most frivolous lawsuit ever” poll. ArmHammerV

Despite the staleness of their covereage of Ward, I agree with Overlawyered.com that the case clearly never should have been filed.  It wasted a lot of resources.  It is, nonetheless, as Lat surely knows, fun to contemplate in theory and would have made a creative hypothetical complaint, perhaps to be used by irreverent webloggers, or as another Urban Legend lawsuit.  A few serious points are also worth making:

  • ArmHammerLogo Thanks to Ted Frank’s coverage, I learned that 28 U.S.C. 1915, the federal law covering prisoners seeking to file a case as a poor person, does not prevent a legally frivolous suit from being appealed in forma pauperis, unless the district court judge certifies that the appeal is not being taken in good faith, or the prisoner has had three prior suits that failed to state a valid claim, or were found to be frivolous or malicious.
  • Ted faults Stanley R. Chesler, the judge in Ward v. Arm & Hammer, for not throwing the case out on his own as frivolous.  Ted seems to forget that a judge has to actually deliberate over a petition before throwing it out — considering the law and the facts, and the presentation by both sides.  Judge Chesler, hearing defendants’ Motion to Dismiss, made a very strong finding, ending the case fairly soon after it was first filed.  He said, “Having taken into account the fact that Plaintiff is proceeding in this matter pro se, the Court is satisfied nonetheless that it is clear ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’.”  The fact that the judge did not use the term “frivolous” might just as well be laid at the feet of defendant’s counsel, Morgan Lewis.  Did defense counsel move for such a finding?  Or, did they conclude, since Ward had no money to pay a fine or pay defense legal expenses, that the added work simply made no sense?
  • Similarly, even if Judge Chesler had held Ward’s complaint to be legally “frivolous,” that would not have prevented an in forma pauperis appeal, unless the judge certified such an appeal as not being in good faith.  Did Morgan Lewis even request such a finding and certification by the court?   If not, a cynic might wonder if some segments of the business community actually enjoy having silly suits like Ward’s survive for long periods — and then be regurgitated forever by those who want to create the impression that we are overrun by ridiculously frivolous suits.

ArmHammerLogo Finally, we should point out that many of the Comments at Fark.com seem to prove our point in the posting the pro se nomenclature problem.   The average person simply does not know what the term “pro se” means.  Even though Above the Law and Overlawyered.com stressed that the lawsuit was brought by Ward pro se, many Farksters rail at his supposed lawyer for briging such a meritless lawsuit.

update (Dec. 20, 2006):  The results of the Above the Law poll are now available: 81.3% of the respondents believe the Baking Soda Crack Lawsuit to be “the most frivolous lawsuit ever”, while the remaining 18.3% of participants (in what is admittedly a very unscientific poll) opined that it “presents a potentially meritorious claim.” 

p.s. Before I go, I want to send a Hat Tip to David Lat for the entertaining premise of his posting on Dec. 15, 2006, about Ward v. Arm & Hammer.  It’s titled “The Fine Line Separating Pro Se Litigants, Plaintiffs’ Lawyers, and Law Professors,” and aptly notes:

bombFuseN Pro se litigants, plaintiffs’ lawyers, and law professors all share the ability to “think outside the box.” They come up with novel and creative theories of liability — ones that courts have never entertained before.

Some are crazy. Some are brilliant. And some fall somewhere in between.

 

1 Comment

  1. shlep: the Self-Help Law ExPress » Blog Archive » like a regifted fruit cake

    December 23, 2006 @ 10:56 am

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    […]    In a post Friday morning at Overlawyered.com, titled “Teri Smith Tyler v. Carter, pro se” (Dec. 22, 2006), Walter Olson outdid his website teammate Ted Frank’s recent recycling of stale pro se case.  As we noted four days ago, Ted spotlighted the “whacky,” two-year-old, Ward v. Arm & Hammer case last week (as did ATL’s David Lat).  Walter took his time machine back yet another decade, after a reader reminded him of the Tyler case (opinion, 151 F.R.D. 537), which was decided in the Southern District of New York in 1993.  […]

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