Blog Post

Think You Can Represent Yourself in Business Court? Think Again.

While it is legally permissible to represent yourself in Business Court, it probably is not a good idea as one plaintiff learned the hard way. In a recent decision from the North Carolina Business Court, a plaintiff, James Gillespie, attempted to be a pro se litigant and wound up with his case dismissed and responsible for paying much of the defendants’ legal fees.


Gillespie originally retained counsel for the purpose of suing the defendants. However, his attorneys, John and James Scarbrough, filed a Consent Motion to Withdraw as counsel. The court granted this motion requiring Gillespie to retain a new attorney within four weeks. He did not make the report or retain new counsel.


The defendants filed a Motion to Compel which the court granted. The defendants sought supplemental responses to their requests for production. The court ordered Gillespie to provide the supplemental responses and also required Gillespie to provide a privilege log identifying any documents withheld from production on the basis of privilege. The court gave him ten (10) days to comply.


Again, Gillespie failed to retain counsel, make the supplemental production, or provide the privilege log. As a result, the defendants filed a Motion for Sanctions and sought attorneys’ fees for pursuing the motion. Gillespie never responded. The defendants then filed a Motion to Compel alleging Gillespie did not respond to the defendants first set of interrogatories. This motion was also accompanied by a request for attorneys’ fees for pursuing the Motion to Compel.


It should come as no surprise Gillespie did not respond to the Motion to Compel. As a result, the court issued a Notice of Hearing requiring Gillespie appear and show cause why his complaint should not be dismissed. At the hearing, Gillespie appeared pro se and admitted he received the Order on Withdrawal, but forgot to make the report. Further, he admitted he had no explanation as to why he refused to participate in court-mandated mediation. He also did not have an explanation for why he failed to respond to the Motion for Sanctions, Motions to Compel or defendants’ interrogatories. His only explanation is that without legal representation, he failed to understand his obligations.


He made it clear to the court he would find an attorney and cease to represent himself. The court obliged and issued an order allowing him forty-five (45) days to retain counsel. They instructed the parties to not conduct discovery or file motions until the time period passed. They also postponed all deadlines until Gillespie retained counsel, but warned if he failed to obtain counsel by their deadline, they would dismiss his complaint.


On the day of the deadline, Gillespie filed a request to represent himself claiming “it has been impossible to retain new legal counsel” and he “elected to represent himself in matters of this case so that no further delays occur.” The court order that followed granted his request. The order also required Gillespie to file any responses he intended to file with respect to the Motions to Compel, Motion for Sanctions, and Affidavit in Support of Fees. The order also required Gillespie to participate in a mediated settlement conference and, again, warned failure to abide by the order would result in sanctions up to and including dismissal of his claims.


The day before the deadline, Gillespie delivered documents to the defendants and sent the same to the court. However, the documents did not include responses to the Affidavit in Support of Fees, the Motion for Sanctions, one of the Motions to Compel, or defendants’ first set of interrogatories. The only documents he did provide were related to the first Motion to Compel regarding Gillespie’s provision of supplemental responses. The defendants claimed only seven pages of those documents had not already been produced and, as such, they requested more attorneys’ fees.


Rule 37 of the North Carolina Business Court Rules authorizes the court to impose sanctions “within the sound discretion of the trial court.” According to the rule, those sanctions can include “[a]n order striking out pleadings or parts thereof…or dismissing the action or proceeding or any part thereof…against a disobedient party.” They have the inherent authority “to do all things that are reasonably necessary for the proper administration of justice.” Further, the court does not need to find the conduct was willful to determine sanctions are appropriate.


In this case, the court gave Gillespie multiple opportunities to bring himself in compliance. He repeatedly failed to respond to court orders or discovery requests. Furthermore, they warned him twice his actions could ultimately result in sanctions up to and including dismissal of his complaint. His actions, or rather, inaction, resulted in the defendants spending time and money on a lawsuit they did not commence. As a result, the court awarded most of the requested attorneys’ fees and dismissed Gillespie’s complaint.


The court, in its opinion, conveyed they were “not unsympathetic to Gillespie’s current status as an unrepresented litigant, but note[d] 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.” Pro se litigants are not exempt.


The Business Court dismissed the complaint without prejudice and stated that since he had not had the assistance of counsel, he was unable to comply with court rules and orders. Gillespie is free to refile the lawsuit, but this case ought to have taught him a valuable lesson. In a court specially designed to hear complex business litigation, it is not wise to try to represent yourself unless you can competently comply with the court’s procedures.



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