In re McFadden

477 B.R. 686

In re Penny Jean McFADDEN, Debtor.

No. 12–60420.

United States Bankruptcy Court,

N.D. Ohio,

Eastern Division.

July 19, 2012.

Thomas Karl Mast, Wooster, OH, for Debtor.

MEMORANDUM OF OPINION

RUSS KENDIG, Bankruptcy Judge.

Now before the court are two motions. Pro se creditor Michael E. Riggle (“Mr. Riggle” or “Creditor”) filed a “Motion Objecting to Discharge Request Dismissal of Debtor's Petition” (sic) (“Motion”) on May 4, 2012. He filed a supplement to the motion on July 16, 2012. On June 3, 2012, Debtor filed a motion to deny or dismiss Mr. Riggle's motion, which the court deems to be a responsive pleading (“Response”). The court conducted a hearing on June 11, 2012 and took the matter under advisement.

The court has jurisdiction of this case under 28 U.S.C. § 1334 and the general order of reference entered in this district on July 16, 1984, now superseded by General Order 2012–7 dated April 4, 2012. In accordance with 28 U.S.C. § 1409, venue in this district and division is proper. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2).

BACKGROUND

Debtor was a past tenant in a property owned by Mr. Riggle. It's obvious the parties' relationship did not end well. Ultimately, Mr. Riggle sued her and began the process of executing on the judgment. Soon after, Debtor filed a chapter 7 bankruptcy petition. Mr. Riggle participated in the 341 meeting of creditors conducted by the chapter 7 trustee, Anthony J. DeGirolamo, on April 10, 2012.

DISCUSSION

I. Requirements for pro se pleadings

This case squarely highlights the conundrum a court often faces when pro se litigants file pleadings. In this case, Mr. Riggle filed a motion that is completely devoid of any reference to the bankruptcy code or rules, nor does it contain any citation to any legal authority. This is not uncommon with pro se parties. See, e.g., Zielinska v. Smith (In re Smith), 469 B.R. 147 (Bankr.D.Conn.2012) (involving a “complaint [that] fails to cite to a statutory basis for its relief requested, and in its form and substance is not a model of clarity”); In re Rosillo, 2007 WL 2230765 (Bankr.S.D.N.Y.2007) (noting the absence of any authority in the pro se debtor's motion to reopen). Instead of making legal arguments, Mr. Riggle presents numerous allegations which appear designed to disparage Debtor's character and highlight inaccuracies in the schedules.

It is clear, by Supreme Court dictate, that the pleading standards for pro se litigants is “less stringent ... than formal pleadings drafted by lawyers” and pro se pleadings are entitled to liberal construction. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Martin v. Overton, 391 F.3d 710, 712 (6th Cir.2004). The dilemma for courts is created by the absence of a specific standard or direct guidance in application of the principle of construing a pro se pleading liberally. See, e.g., Patricia Hatamyar Moore, An Updated Quantitative Study of Iqbal's Impact on 12(b)(6) Motions, 46 U. Rich. L.Rev. 603, 639–40 (2012); Rory K. Schneider, Illiberal Construction of Pro Se Pleadings, 159 U. of Pa. L.Rev. 585 (2011). As a result, courts deal with pro se pleadings on an ad hoc basis, often with varying results. See id.

While no defined standard was articulated, it is apparent that most courts recognize that liberality is not untempered. For example, a liberal interpretation does not “require lenient treatment of substantive law ... even a pro se plaintiff must state and support all elements of a substantive claim to avoid an adverse judgment.” Durante v. Fairlane Town Ctr., 201 Fed.Appx. 338, 344 (6th Cir.2006); see also Morris v. Equi First Corp., 2010 WL 890877, *3 (M.D.Tenn.2010) (unpublished). And a court is not compelled to “excuse mistakes by those who proceed without counsel.” Eglinton v. Loyer (In re G.A.D., Inc.), 340 F.3d 331, 335 (6th Cir.2003) (citing McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993)). Basic pleading standards apply:

Neither [the Supreme Court] nor other courts, however, have been willing to abrogate basic pleading essentials in pro se suits. See, e.g., id. at 521, 92 S.Ct. at 596 (holding petitioner to standards of Conley v. Gibson ); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be less stringent with pro se complaint does not require court to conjure up unplead (sic) allegations), cert. denied,464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v. Tisch, 656 F.Supp. 237 (D.D.C.1987) (pro se plaintiffs should plead with requisite specificity so as to give defendants notice); Holsey v. Collins, 90 F.R.D. 122 (D.Md.1981) (even pro se litigants must meet some minimum standards).

Wells v. Brown, 891 F.2d 591, 594 (6th Cir.1989).

Requiring a pro se litigant to meet basic pleading standards protects an opposing party from the unknown. Without some restraint on what is acceptable from a pro se party, an opposing party can be forced to guess at the pro se's position and raise defenses in the dark. This does not meet any notion of due process, fair play or justice. The provision of notice to the opposing party is a hallmark of basic pleading.

While liberal construction of a pro se pleading may require “active interpretation,” Franklin v. Rose, 765 F.2d 82, 85 (6th Cir.1985) (citation omitted), it is beyond the scope of this court's duties to create claims or make legal arguments for a pro se litigant. Crawford v. Crestar Foods, 2000 WL 377349 (6th Cir.2000) (unpublished) (citing Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985)). “To do so would not only strain judicial resources by requiring those courts to explore exhaustively all potential claims of a pro se plaintiff, but would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett at 1278 (citing Gordon v. Leeke, 574 F.2d 1147, 1151,cert. denied,439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978)). Thus, the challenge is finding the balance between interpretation and creation.

In this case, the court finds that the balance would have to be tipped severely in favor of creationism for the motion to be granted. Mr. Riggle failed to meet even a minimum standard of pleading. He does not cite one single bankruptcy code provision, bankruptcy or civil rule, or provide any legal authority. Basic pleading standards require “hanging the legal hat on the correct peg” to avoid forcing a court to conjure claims for a pro se party. Martin v. Overton, 391 F.3d 710, 714 (citing Erwin v. Edwards, 22 Fed.Appx. 579, 580 (6th Cir.2001)). Anything more requires the court to read Mr. Riggle's motion, take his factual assertions, and mold them into a plausible legal argument. This is beyond the purview of the court's judicial role and can result in subversion of the court's neutrality. See Hon. Robert Bacharach and Lyn Entzeroth, Judicial Advocacy in Pro Se Litigation: A Return to Neutrality, 42 Ind. L.Rev. 19 (2009).

Much of Mr. Riggle's motion is a devoted attempt to convince the court that Debtor is a bad person. Every creditor that comes before this court could complain about the character of the debtor. The court is an arbiter of legality, not morality, except to the extent that the issue relates to any of several morally related provisions of the bankruptcy code. Saying that a debtor is a bad person, without any underlying legal foundation providing context for the assertion, calls upon the court to judge the character of the debtor or to identify the law governing the facts. Both are beyond the scope of a court's power.

The court finds that Creditor's motion is legally insufficient and therefore must be denied. Independently, the court finds that even if the court exceeds its mandate and provides a legal construction that the motion fails.

II. The motion

Mr. Riggle titled his pleading “Motion Objecting to Discharge Request Dismissal of Debtor's Petition.” The title alone is indicative of the challenge presented to the court because it could be read to request relief under multiple legal theories.

If the court focuses on the “objecting to discharge” language in the title, it would suggest that it is an action to either deny debtor's discharge under 11 U.S.C. § 727 or except the debt from discharge under 11 U.S.C. § 523. Actions under sections 523 and 727 must be initiated with the filing of a complaint, not a motion. Fed.R.Bankr.Pro. 7001(4) and (6). If Mr. Riggle's intent was to object to discharge, he failed to use the proper procedural mechanism.¹ The Sixth Circuit supports a pro se litigant's adherence to “straightforward procedural requirements that a layperson can comprehend as easily as a lawyer.” Kirkland v. Fid. and Deposit Co. of Md. (In re Micro–Time Mgmt. Sys., Inc.), 1999 WL 71595, *4 (6th Cir.1999) (citing Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir.1991)). Consequently, Mr. Riggle's failure to file a complaint is procedurally fatal.

After combing through the motion, the court finds no specific requests related to discharge and can find only one other mention of discharge. On page four, Mr. Riggle states “[Debtor's false representations] were willful acts of deception made to deceive the court and her creditors in order to get her debt discharged.” (Motion, p. 4). Use of this language could lead the court down a § 523(a)(2) path, where debts can be excepted from discharge based on fraudulent misrepresentations, or § 523(a)(6) path, excepting from discharge debts incurred willfully and maliciously. This strains plausibility, however, because at no point does Mr. Riggle request any relief specific to discharge of his debt. Therefore, the court questions whether the pleading seeks nondischargeability of Mr. Riggle's debt. Moreover, the deadline for filing a complaint objecting to discharge or dischargeability has expired. Similarly, if...