Going pro se in the NC Business Court is a bad idea. At least it was for the Plaintiff in Gillespie v. Majestic Transport, Inc., 2017 NCBC 43 who saw his claims dismissed (without prejudice) for failing to comply with the Court’s discovery orders and was ordered to pay attorneys’ fees to the Defendant.
Gillespie didn’t start out in the Business Court without a lawyer. His lawyer was allowed to withdraw in November 2016, and the Court ordered Gillespie to report within the next month regarding his efforts to retain a new lawyer. He didn’t make that report, stating later that he had “forgotten” to do so. Op. ¶12.
Before the deadline for that report had run out, the Business Court granted a pending Motion to Compel, and ordered the Plaintiff to provide supplemental discovery responses and to provide a privilege log within ten days of the Order granting the Motion or within ten days of the appearance of new counsel.
Gillespie, without new counsel, didn’t provide the material required by the discovery order. He also didn’t respond at all to Interrogatories served on him by the Defendant. The Defendant filed another Motion to Compel, this time requesting sanctions against Gillespie including dismissal of his case.
Judge McGuire held a hearing on the second Motion to Compel in January 2017. Gillespie appeared at the hearing, and explained his non-compliance by contending that “without legal representation, he did not understand his obligations.” Op. ¶12. He said that he did not intend to represent himself, and asked for additional time to hire an attorney.
Judge McGuire said that he would not dismiss the case and that “[t]he Court desires to provide Gillespie with a final opportunity to retain counsel to represent him.” Op. ¶13. He gave Gillespie a deadline of February 15th to retain new counsel and to have that new lawyer file a notice of appearance in the case.
When that deadline rolled around, Gillespie informed the Court “it has been impossible to retain new legal counsel,” and that he had “elected to represent himself in matters of this case so that no further delays occur.” Judge McGuire granted that request and ordered Gillespie to respond to some outstanding discovery and reminded him of a prior order requiring mediation to take place by March 31st. He warned Gillespie that if he did not comply with these obligations, that the Court would consider “appropriate sanctions up to and including dismissal of Gillespie’s claims.” Op. ¶15.
When Gillespie fell down on those obligations, Judge McGuire cut him no slack for proceeding pro se. He said in ruling on Defendant’s Motion for Sanctions that:
The Court is not unsympathetic to Gillespie’s current status as an unrepresented litigant, but notes that he consented to withdrawal of his counsel in this case. Gillespie also was provided with more than a reasonable amount of time to retain new counsel, but failed to do so. Ultimately, an individual who chooses to represent himself in the civil courts of our State must abide by the orders of those courts and by rules of procedure applicable to civil proceedings.
Op. ¶25. Even so, Judge McGuire ruled that Gillespie’s lack of assistance of counsel had “probably hampered his ability to comply with court rules,” and that the dismissal would be without prejudice. Id.
Although Mr. Gillespie might be relieved that he can refile his lawsuit, he can’t be delighted at having to pay attorneys’ fees to the Defendant. But I was struck by the reasonableness of the fees sought by Defendant’s counsel. They were $1265.50 for the first Motion to Compel (4.6 hours at $275 per hour), $770 for the Motion for Sanctions (2.8 hours at $275 per hour) and $385 for the second Motion to Compel (1.4 hours at $275). Judge McGuire awarded a total of $2,421.00.
Would it have made a difference if Gillespie had been able to find new counsel to step into the case? Maybe.