Opinion
Docket No. 28041.
Filed January 31, 2003.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge.
Order granting motion to strike complaint, reversed and the case remanded.
John B. Todd, Boise, for appellant.
Jim Jones, Boise, for respondent.
Robert Black and Robert Marks appeal from an order of the district court granting a motion by Ameritel Inns, Inc. to strike Black's and Marks's complaint. We reverse.
I. FACTS AND PROCEDURE
On September 12, 2000, Black and Marks filed a complaint against Ameritel in federal court for the district of Idaho alleging that Ameritel denied them public accommodation in Boise because they were gypsies. Black and Marks were both residents of Washington. The complaint filed in federal court was signed by Black's and Marks's Washington attorney, who was not licensed to practice law in Idaho. Pursuant to a stipulation by the parties, Black's and Marks's federal court action was dismissed on May 22, 2001.
At no time during the pendency of the underlying proceedings was Black's and Marks's Washington attorney authorized to practice law in Idaho.
On April 23, 2001, while their action was still pending in federal court, Black and Marks filed a complaint against Ameritel in state court, again alleging that Ameritel had denied them public accommodation because they were gypsies. Black's and Marks's Washington attorney signed both of their names to the complaint, followed by his initials. The complaint indicated that the attorney of record was Boise attorney Dan Hawkley. Ameritel filed a motion to strike the complaint on May 30, asserting that the complaint was ineligible for filing because it failed to comply with the signature requirement of I.R.C.P. 11(a)(1). Thereafter, another Boise attorney, John B. Todd, entered an appearance as counsel for Black and Marks. On June 26, approximately twenty-seven days after Ameritel's motion to strike was filed, an amended complaint containing both Black's and Marks's signatures, and the signature of their Idaho attorney, was filed. However, the two-year statute of limitation had already expired before the filing of this amended complaint.
According to an affidavit by Ameritel's attorney, Dan Hawkley sent him a letter indicating that Hawkley did not represent Black or Marks.
After a hearing on Ameritel's motion to strike, the district court granted Ameritel's motion. A subsequent motion for reconsideration filed by Black and Marks was denied. Black and Marks now appeal, asserting that the district court erred by granting Ameritel's motion to strike. Ameritel seeks costs and attorney fees on appeal.
II. ANALYSIS
A. Signature Requirement of I.C.R.P. 11(a)(1)
In its order granting Ameritel's motion to strike, the district court determined that the complaint was not eligible for filing because it did not comply with the signature requirement of I.R.C.P. 11(a)(1). The district court found that the complaint did not contain the signatures of Black and Marks and that it was not signed by an attorney authorized to practice in Idaho. The district court concluded that the complaint was signed by Black's and Marks's Washington attorney with the intent to circumvent the rule. The district court further held that because the original complaint was not eligible for filing, the amended complaint could not relate back to the filing date of, or cure the defect in, the original complaint.
On appeal, Black and Marks contend that they were unrepresented by Idaho counsel at the time their original complaint was filed and that their Washington attorney was acting as their agent, not as their attorney, when he signed their names to the complaint. Black and Marks assert that the signature of an agent satisfies the signature requirement of Rule 11(a)(1).
Idaho Rule of Civil Procedure 11(a)(1) provides:
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one (1) licensed attorney of record of the state of Idaho, in the attorney's individual name, whose address shall be stated before the same may be filed. A party who is not represented by an attorney shall sign the pleading, motion or other paper and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
By its terms, Rule 11 authorizes two signatures on a pleading — that of a party, if unrepresented, or that of a party's attorney. The rule does not authorize any other person to sign a complaint in the place of an unrepresented party.
Few cases have dealt with whether an agent may sign a complaint on behalf of an unrepresented party. In Covington v. Cole, 528 F.2d 1365 (5th Cir. 1976), a complaint was filed which was not signed by Covington or his attorney. Rather, Covington's wife signed his name and then signed her name as his attorney in fact, i.e., his agent. On appeal from the dismissal of Covington's complaint, the appellate court noted that F.R.C.P. 11 — which is nearly identical to I.R.C.P. 11(a)(1) — required an unrepresented party to sign his or her pleading and state his or her address. Without deciding whether a signature by a spouse as "attorney in fact" could be sufficient under F.R.C.P. 11, the court held that dismissal of the action with prejudice was not a proper disposition of the case "in the face of this arguable defect, at most a technical defect, in the complaint." Covington, 528 F.2d at 1369. In a footnote, the court commented that Rule 11's signature requirement seemed to be designed to assure the court that the named party was actually in assent to the filing of an action on his or her behalf. The court stated that, when a court was otherwise assured that the party endorsed the pleading, even a complete failure to sign was considered a technical defect capable of being corrected.
In Robinson v. City of Chicago, 868 F.2d 959 (7th Cir. 1989), a notice of appeal was filed on behalf of the city. The notice was not signed by the city's corporate counsel but, rather, was signed by someone else in the office who signed counsel's name and then placed his or her initials next to counsel's purported signature. On appeal, Robinson argued that the appellate court was without jurisdiction because the notice of appeal did not comply with F.R.C.P. 11. The court was unpersuaded and held that both the letter and purpose of Rule 11 were satisfied because anything signed by corporate counsel's authorized agent was as if counsel personally had signed it within the meaning of the rule. The court distinguished the case before it from cases where a pleading was signed by one unrepresented party on behalf of another or contained no signature.
In Gonzales v. Wyatt, 157 F.3d 1016 (5th Cir. 1998), an unsigned complaint in Gonzales's name was received in the mail by a district court clerk. Accompanying the complaint was a letter from a nonlawyer prisoner who apparently sought to file the complaint on Gonzales's behalf. Gonzales was instructed to submit a signed copy of his complaint within thirty days and was advised that, if he failed to comply, his case may be dismissed. Approximately forty-one days later, after the statute of limitations had expired, Gonzales filed a signed complaint. Wyatt moved to dismiss based on the untimely filing of Gonzales's signed complaint, which was granted. On appeal, the appellate court noted that, had Gonzales himself mailed the original unsigned complaint to the district court clerk or given it to the prison authorities for mailing, a good argument could be made that the filing of the unsigned complaint tolled the statute of limitations or that the subsequently signed complaint related back to the filing date of the original complaint. However, because the original complaint was not signed by Gonzales, was not personally mailed or delivered by Gonzales, nor even seen by him prior to its filing, the court held that the requirements of F.R.C.P. 11 were not satisfied. The court observed that when a party personally tenders an unsigned pleading or other paper to the clerk for filing, the purpose of Rule 11 may be sufficiently fulfilled to allow relation back if that party, with reasonable promptness, thereafter signs and refiles the document. The court stated that where a document is tendered and signed by a nonlawyer on behalf of another, the principle underlying Rule 11's signature requirement comes into play — namely, that a party can represent himself or herself or be represented by an attorney, but cannot be represented by a nonlawyer.
In Naimo v. Fleming, 588 P.2d 1025 (Nev. 1979), a complaint was signed and filed by the plaintiff's out-of-state counsel who was not authorized to practice law in Nevada. It was not signed by the plaintiff or by a member of the Nevada state bar. Approximately eighteen months later, an amended complaint signed by Nevada counsel was filed. The district court dismissed the complaint, concluding that the plaintiff and out-of-state counsel deliberately violated Nevada Rule of Civil Procedure 11 — which provided that the district court had discretion to strike any pleading not signed or signed with the intent to defeat the purpose of the rule — in an effort to keep the lawsuit viable but avoid the cost of associating Nevada counsel. On appeal, the appellate court upheld the dismissal after determining that there was sufficient evidence of a deliberate violation of Nevada's Rule 11.
Finally, in Safeway Stores, Inc. v. Maricopa County Superior Court, 505 P.2d 1383 (Ariz.Ct.App. 1973), a complaint alleging a claim for personal injuries was filed and signed only by the plaintiff's husband. The plaintiff's husband was not a party or a licensed attorney. No further action in regard to the complaint was taken until approximately fourteen months later, when the plaintiff signed and filed an amended complaint. The defendant moved for summary judgment, claiming that the original complaint signed by the plaintiff's husband was not valid for purposes of commencing an action and that therefore no action was commenced within the applicable limitations period. The defendant's motion was denied. On appeal, the appellate court held that the original complaint signed by the plaintiff's husband was insufficient to toll the statute of limitations. In addition, the court noted that pursuant to Arizona's Rule 11 — which provided that a party who is not represented by an attorney shall sign his or her own pleading — the failure of the plaintiff to sign her own pleading was not a mere technical irregularity subject to correction by amendment after the expiration of the statute of limitations. The court thus held that there was no valid complaint filed prior to the expiration of the statute of limitations and, therefore, the amended complaint could not relate back to the original filing date. It is unclear from the court's opinion whether Arizona's Rule 11 allowed for an unsigned complaint to be cured if promptly signed by the party or the party's attorney, as does I.R.C.P. 11(a)(1).
The facts in the present case are distinguishable from the cases discussed above. Here, we are presented with a situation where Black and Marks were represented by an attorney, albeit not an attorney authorized to practice in Idaho, and that attorney signed the complaint in Black's and Marks's names as their purported agent. Under Rule 11(a)(1), by signing a pleading, motion, or other paper, an unrepresented party or a party's attorney certifies that certain requirements are met. Permitting an agent to sign a pleading on an unrepresented party's behalf defeats the letter and spirit of the rule's signature requirement. Although there are affidavits in the record by both Black and Marks expressly stating that their Washington attorney was authorized to sign their names to the complaint, thereby indicating that they assented to the filing of the action against Ameritel, the only agent Rule 11(a)(1) authorizes to sign a pleading on behalf of a party is the party's attorney. Therefore, we conclude that it is impermissible for an agent of an unrepresented party to sign a pleading on that party's behalf under Rule 11(a)(1) and that the complaint in this case was consequently defective.
The next question becomes how to treat the complaint for purposes of Rule 11(a)(1) — whether to treat it as an unsigned complaint because neither Black and Marks nor their Idaho attorney signed the complaint or whether to treat it as a complaint signed in violation of the rule. Relying upon Naimo, the district court concluded that the complaint was signed in violation of the rule. This case is distinguishable from Naimo, however. In that case, the out-of-state attorney signed his own name to the complaint despite the fact that he was not authorized to practice law in Nevada. Here, Black's and Marks's Washington attorney signed their names to the complaint and averred in an affidavit that he specifically declined to sign the complaint in his own name because he was not licensed in Idaho and did not want to imply that he was appearing as an attorney without the proper application and order. Additionally, unlike the out-of-state counsel in Naimo who failed to associate local counsel, Black's and Marks's Washington attorney averred that he retained a Boise attorney to draft and file the complaint in the underlying action prior to the expiration of the statute of limitations but discovered on the day before or the day of the end of the limitation period that the Boise attorney had not performed. John B. Todd, who became the Idaho attorney of record for Black and Marks, likewise informed the district court at the hearing on Ameritel's motion to strike that he had spoken with Dan Hawkley, the Boise attorney who had originally been retained, and that Hawkley indicated that he had an arrangement with Black's and Marks's Washington attorney to handle their action against Ameritel but declined representation at the last minute. Additionally, Black's and Marks's Washington attorney also averred that neither Black nor Marks was available to sign the complaint and that, in order to meet the filing deadline, he drafted the complaint, signed his clients' names to it, and arranged for it to be filed in the manner of a pro se complaint.
We agree with the district court's conclusion that the signing of Black's and Marks's signatures to the complaint by their Washington attorney was deliberate, rather than inadvertent. However, we conclude that the complaint should be treated as unsigned. Although Rule 11(a)(1) provides that a court shall impose sanctions where a pleading is signed in violation of the rule, such a remedy is applied in situations where an unrepresented party or a party's attorney has signed a pleading contrary to the certification requirements in the rule. We do not agree that it applies to situations like the present one. Therefore, we hold that a defectively signed pleading, such as the complaint in the case at bar, is to be treated as an unsigned pleading under Rule 11(a)(1).
The failure to sign a pleading will result in the pleading being stricken unless it is signed promptly after the omission is brought to the attention of the pleader. I.R.C.P. 11(a)(1). Ameritel argues that the amended complaint containing Black's and Marks's signatures did not cure the original defective complaint. According to Ameritel, because the original complaint did not contain a valid signature, it was ineligible for filing in the first instance and, therefore, the amended complaint — which was filed after the statute of limitations had expired — could not relate back to the original filing date. Contrary to Ameritel's contention, however, Rule 11(a)(1) does not provide that before an unrepresented party can file a complaint it must be signed by that party. Rather, the "before the same may be filed" language relied upon by Ameritel is found only in relation to the requirement that a party's attorney sign the complaint before it may be filed. Furthermore, the rule expressly permits an unsigned complaint to be corrected by the prompt signing of the complaint by an unrepresented party or a party's attorney. Pursuant to I.R.C.P. 15(c), whenever the claim asserted in an amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. Here, the amended complaint was identical to the original complaint, with the exception of the Idaho attorney of record and the signatures at the end. Accordingly, Ameritel's motion to strike should not have been granted if Black and Marks acted promptly to correct the defective original complaint.
Idaho's Rule 11(a)(1) does not define "promptly." Because I.R.C.P. 11(a)(1) is nearly identical to the Federal Rule 11, we look to rulings on the scope of the federal rule for guidance in interpreting the Idaho rule. See Martin v. Hoblit, 133 Idaho 372, 376 n. 3, 987 P.2d 284, 288 n. 3 (1999). If an unsigned pleading is corrected within a matter of days by the filing of a signed pleading, federal courts have concluded that such correction is prompt. See United States v. Kasuboski, 834 F.2d 1345, 1348-49 (7th Cir. 1987) (pleading signed three days and filed seven days after original unsigned pleading prompt for purposes of F.R.C.P. 11); Duke v. Crowell, 120 F.R.D. 511, 513 (W.D.Tenn. 1988) (plaintiff who failed to sign original complaint given ten days to file a signed verbatim copy). Courts have also considered unsigned pleadings to be promptly corrected where a signed pleading was submitted within twenty to thirty days from the omission being called to the attention of the pleader. See Stroud v. Senese, 832 F. Supp. 1206, 1215 (N.D.Ill. 1993) (parties' attorney given twenty days to sign complaint originally signed by only the parties); Williams v. Frame, 145 F.R.D. 65, 66 (E.D. Penn. 1992) (plaintiff allowed thirty days to sign an original copy of previously filed unsigned complaint); Adams v. Perloff Bros., Inc., 784 F. Supp. 1195, 1199-1200 (E.D. Penn. 1992) (unsigned complaint filed on April 30 promptly corrected by signed complaint received by court clerk on May 10 but not actually filed until May 20).
In the instant case, Ameritel argues that the amended complaint was not prompt because it was not filed until sixty-four days after Black and Marks had notice of the defective signatures. However, Ameritel's argument is belied by the record. Ameritel's motion to strike based upon the defective signatures was filed on May 30, 2001. On June 26, approximately twenty-seven days later, Black and Marks filed a signed complaint. Twenty-seven days falls within the range of what is considered prompt. Ameritel contends that because it filed a motion to dismiss in the federal court action based upon the unauthorized signature of Black's and Marks's Washington attorney on the complaint, Black and Marks had notice when their complaint was filed in state court on April 23 that the complaint failed to comply with I.R.C.P. 11(a)(1). We are unpersuaded. There is no evidence in the record concerning when Black and Marks were personally notified of the defect in the original complaint, although the record does reflect that a properly signed complaint was filed twenty-seven days after Ameritel's motion to strike was entered and also that the signed complaint was filed before the hearing on Ameritel's motion to strike was held. Under the circumstances presented, we conclude that the amended complaint filed with the appropriate signatures was prompt for purposes of Rule 11(a)(1). B. Costs and Attorney Fees Ameritel requests costs and attorney fees on appeal pursuant to I.C. § 12-121. However, due to our resolution of the issue presented in this case, Ameritel is not entitled to an award of costs and attorney fees. Black and Marks did not request attorney fees on appeal. Consequently, costs, but not attorney fees, are awarded to Black and Marks pursuant to I.A.R. 40.
III. CONCLUSION
We conclude that I.R.C.P. 11(a)(1) does not permit an agent to sign a pleading, such as the complaint in this case, on behalf of an unrepresented party. Accordingly, we hold that the complaint in this case was defective. Because the complaint was not signed by Black and Marks nor by their Idaho attorney, we further conclude that it should be treated as an unsigned complaint. Although Rule 11(a)(1) provides that an unsigned pleading must be stricken unless it is promptly signed by the unrepresented party or the party's attorney after the omission is called to the attention of the pleader, an amended complaint containing Black's, Marks's, and their Idaho attorney's signatures was filed on June 26, approximately twenty-seven days after Ameritel's motion to strike was filed. Because twenty-seven days falls within the range of what is considered prompt, we conclude that the amended complaint was promptly filed and that the defect in the original complaint was cured.
Ameritel is not entitled to costs and attorney fees on appeal. Black and Marks did not request attorney fees on appeal. The order of the district court granting Ameritel's motion to strike is reversed and the case is remanded. Costs, but not attorney fees, on appeal are awarded to Black and Marks.
Judge GUTIERREZ, and Judge Pro Tem JUDD, CONCUR.