Represent Yourself at Your Own Risk: Garrow v Earley, Wells Fargo No. 2 CA-CV 2018-0053 (November 29, 2018)

Author: Christopher J. Feasel

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

Note: This memorandum decision by rule may not be cited except as authorized by ARCAP 28(f) and Arizona Supreme Court Rule 111 and may only be used as persuasive authority in future cases. 

Representing yourself in court is always an iffy proposition, as one such pro se litigant recently found out in Garrow v Earley, Wells Fargo.

Mary Garrow sued Joanne Early, a manager at Wells Fargo, after Ms. Garrow was ordered to leave the branch for talking on her phone while waiting to cash a check. Ms. Garrow filed suit against Ms. Earley and Wells Fargo for intentional infliction of emotional distress (IIED), harassment, intimidation, hostile environment, and violating her civil rights.  She alleged Ms. Earley’s actions caused her severe emotional distress and “possible” bodily harm because she was embarrassed by the incident and was forced to drive to another Wells Fargo to conduct her business. She sought $60,000.00 in damages.

Wells Fargo and Ms. Earley moved to dismiss the complaint for failure to state a claim under Arizona Rules of Civil Procedure 12(b)(6).  Ms. Garrow responded by including additional allegations of assault, battery, defamation, and negligence, but failed to file an amended complaint or seek leave to do so.  The trial court granted the motion to dismiss, and Ms. Garrow appealed.

The court, in a footnote, initially noted Ms. Garrow requested “latitude” and “leniency regarding the outcome of the case” due to her status as a pro se litigant. However, the court also noted the well-established principle that pro se litigants are held to the same standards as if represented by an attorney.  Higgins v. Higgins, 194 Ariz. 266, ¶12 (App. 1999).

The court then dismissed Ms. Garrow’s contention the trial court should have entered a default judgment in her favor, finding the filing of the Rule 12(B)(6) motion precluded entry of default.  The court also declined to consider Ms. Garrow’s additional claims, since those were first raised in her response to the motion.

In reviewing the complaint, the court reiterated the standard that dismissal is appropriate only if a plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof.  Reviewing the Intentional Infliction of Emotional Distress (hereinafter, “IIED”) claim, the court noted Ms. Garrow alleged Ms. Earley engaged in “hostile and unprofessional” conduct.  However, in order to successfully plead an IIED claim, the conduct must be “extreme and outrageous,” intended to cause emotional distress, and must actually case “severe emotional distress” as a result. The court found Ms. Garrow’s claims of “rude behavior” failed to fulfill the rigorous requirements for IIED. Similarly, the court upheld the dismissal of her Civil Rights Act claim, which prohibits discrimination in places of public accommodation on the basis of “race, color, religion, or national origin,” holding that being asked to leave for “being loud” failed to state a claim for violation of the Act. The remaining complaints – harassment, intimidation, and hostile environment – were also dismissed as being unfounded in any freestanding civil claim at law.


It is easy to take pro se litigants lightly, as their claims are often unfounded.  However, standards of professionalism require us to take each complaint as it comes, and work to provide our client with a rigorous defense regardless of who is on the other side of the isle or how unreasonable their claims are.  Counsel for Ms. Earley and Wells Fargo did just that in this case, winning an dismissal on sound legal theories that was later upheld on appeal.

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