That is the tricky question the Nebraska Supreme Court took on in Kelly v. St. Francis Medical Center 295 Neb. 650 (Neb. 2017).
Ann Kelly (“Kelly”) filed a pro se wrongful death action on behalf of the deceased’s estate against Saint Francis Medical Center (“Saint Francis”), Dr. Jeff S. Burwell, and other “fictitious entities.” Kelly later retained counsel and filed a motion for leave to file an amended complaint. The district court concluded that an amended complaint could not relate back to the date of the original filing and dismissed the action as untimely. The reason that it was dismissed is because the court found that her wrongful death action was a nullity. Because the district court thought the initial complaint was a nullity—or did not exist—she could not amend that complaint because it never legally existed.
In the present case, both parties agree that Ann was a non-attorney at the time she filed a complaint on behalf of the estate. In her complaint, Kelly represented herself and the interests of the estate. The law says that the only time a pro se filing is allowed is when the person doing the filing is doing it as an individual—not as a representative of the estate. When she filed, Ann wanted to “affect the legal rights” of the estate. This constitutes the unauthorized practice of law.
If a complaint is deemed a nullity because of unauthorized practice of law, it is therefore not a complaint. Therefore, there is nothing for an amended complaint to relate back to. The Supreme Court holds that the district court did not err in holding that the prior complaint was a nullity, and that an amended complaint could not relate back to the filing of the original pro se complaint. Supreme Court affirms.
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