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Moore v. Vednor, 3:17-CV-1436-G-BH. (2017)

Court: District Court, N.D. Texas Number: infdco20170823d66 Visitors: 26
Filed: Jul. 27, 2017
Latest Update: Jul. 27, 2017
Summary: FINDINGS, CONCLUSIONS, AND RECOMMENDATION IRMA CARRILLO RAMIREZ , Magistrate Judge . Pursuant to Special Order No. 3-251, this pro se case has been automatically referred for full case management. Based on the relevant filings and applicable law, the defenses of defendants MidAmerica Financial Services, Inc. and S & M, Ltd. should be STRICKEN, and the Court should find them both to be in default. I. BACKGROUND On February 22, 2017, several plaintiffs filed this class action case in
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FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to Special Order No. 3-251, this pro se case has been automatically referred for full case management. Based on the relevant filings and applicable law, the defenses of defendants MidAmerica Financial Services, Inc. and S & M, Ltd. should be STRICKEN, and the Court should find them both to be in default.

I. BACKGROUND

On February 22, 2017, several plaintiffs filed this class action case in state court against multiple defendants, including MidAmerica Financial Services, Inc. and S & M, Ltd. (Defendants), alleging violation of the Texas Securities Act. (See doc. 1-3 at 23-57.)1 A pro se individual, Bruce Deemer, purported to file answers on behalf of MidAmerica Financial Services, Inc. and S & M, Ltd. on March 23, 2017, and May 22, 2017, respectively. (See doc. 1-3 at 89-90, 259-261.) The action was removed to federal court on May 31, 2017. (See doc. 1.)

By order dated June 6, 2017, the pro se individual was advised: Here, it appears that [the individual] filing answers on behalf of MidAmerica Financial Services, Inc. [and] S & M, Ltd. [is not a licensed attorney, so he may not] represent these corporate defendants. These corporate defendants must appear through licensed counsel within THIRTY (30) days from the date of this order. If licensed counsel has not entered an appearance on behalf of these corporate defendants within that time, their defenses may be stricken without further notice, and the Court may conduct further proceedings in accordance with the law, including but not limited to, entry of an order of default and/or default judgment.

(See doc. 4.) More than thirty days since the date of the order have passed, and no counsel has entered an appearance on behalf of Defendants.

II. ANALYSIS

In the federal courts of the United States, "parties may plead and conduct their own cases personally or by counsel." 28 U.S.C. § 1654. It is well-established that although individuals have the right to represent themselves or proceed pro se under this statute, corporations are fictional legal persons who can only be represented by licensed counsel. Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993); Memon v. Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir. 2004) (per curiam) (citing Rowland and Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984) (per curiam)); Southwest Express Co., Inc. v. Interstate Commerce Commission, 670 F.2d 53, 54-56 (5th Cir. 1982). "This is so even when the person seeking to represent the corporation is its president and major stockholder." In re K.M.A., Inc., 652 F.2d 398, 399 (5th Cir. 1981) (citation omitted).

The rationale for this long-standing rule applies equally to "all artificial entities", such as partnerships and associations. Rowland, 506 U.S. at 202. As a cross between a corporation and a partnership, a limited liability company is also an artificial entity that may only appear in federal court through licensed counsel. See U.S. v. Hagerman, 545 F.3d 579, 581-82 (7th Cir. 2008); Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir. 2007) (per curiam); Roscoe v. U.S., 134 F. App'x 226, 227 (10th Cir. 2005); see also Lan Wu v. Frost Nat. Bank, 3:12-CV-772-M, 2012 WL 1549515 (N.D. Tex. Apr. 5, 2012); Walker v. Allianz Life Ins. Co., 3:08-CV-2051-M, 2009 WL 1883418, at *3 (N.D. Tex. June 30, 2009). When a corporation or artificial entity declines to hire counsel to represent it, the court may dismiss its claims if it is a plaintiff, or strike its defenses if it is a defendant. See Donovan, 736 F.2d at 1005.

Here, the pro se individual filing answers on behalf of Defendants has been specifically advised that a corporate defendant may only be represented by licensed counsel, and that the lack of an entry of appearance by counsel on Defendants' behalf within thirty days would result in a recommendation that their defenses be stricken and that further proceedings be conducted in accordance with the law, including but not limited to, entry of an order of default and/or default judgment. Because no attorney has entered an appearance on behalf of Defendants in this case, they have failed to make an appearance in or otherwise defend this action.

III. RECOMMENDATION

The Court should strike the defenses of MidAmerica Financial Services, Inc. and S & M, Ltd., find them to be in default, and advise the plaintiffs that they are entitled to move for default judgment against them, unless licensed counsel enters an appearance on their behalf within the fourteen-day time for filing objections to this recommendation.

FootNotes


1. Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.
Source:  Leagle

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