Paul Ashbaugh v. The Corporation of Bolivar
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying as moot motion to strike [998723352-2] Originating case number: 3:05-cv-00129-JPB. Copies to all parties and the district court/agency. [998934914]. Mailed to: Michael Lorenson. [11-1632]--[Edited 09/11/2012 by BW]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1632
PAUL L. ASHBAUGH,
Plaintiff - Appellant,
and
ASHBAUGH CUSTOM BUILDERS, LLC,
Plaintiff,
v.
THE CORPORATION OF BOLIVAR, a West Virginia municipality;
EDWARD HALL, Mayor, in his official capacity; DONNA CALLAR,
individually and in her official capacity; ROBERT HARDY,
individually and in his official capacity; JOHN HEAFER,
individually and in his official capacity; MARY RUTHERFORD,
individually and in her official capacity; CARRIE GAUTHIER,
individually and in her official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:05-cv-00129-JPB)
Submitted:
August 30, 2012
Decided:
Before KING, WYNN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
September 11, 2012
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J. Michael Cassell, CASSELL & PRINZ, PLLC, Charles Town, West
Virginia, for Appellant.
Michael D. Lorensen, Jared M. Adams,
BOWLES RICE MCDAVID GRAFF & LOVE, Martinsburg, West Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Paul
(“ACB”),
L.
Ashbaugh
seek
to
appeal
and
the
Ashbaugh
district
Custom
court’s
Builders,
order
LLC
granting
summary judgment for Defendants on their 42 U.S.C. § 1983 (2006)
complaint.
We dismiss the appeal for lack of jurisdiction.
“[A] corporation may appear in the federal courts only
through licensed counsel.”
U.S. 194, 202 (1993).
Rowland v. Cal. Men’s Colony, 506
Thus, because Ashbaugh, acting pro se,
filed a notice of appeal on behalf of himself and ACB, the
notice was not adequate to perfect ACB’s appeal.
Montgomery,
532
U.S.
757,
763-68
(2001)
See Becker v.
(finding
notice
of
appeal defective for lack of proper signature as required by
Fed. R. Civ. P. 11(a)).
Although we brought the defect to ACB’s
attention
one
on
more
than
occasion,
correct the notice of appeal.
ACB
failed
to
promptly
See Fed. R. Civ. P. 11(a).
The
appearance of counsel on behalf of ACB more than eight months
after
Ashbaugh
noticed
the
appeal,
and
months
after
the
completion of informal briefing, occurred too late to cure the
defect.
We therefore strike the notice of appeal as to ACB.
See Fed. R. Civ. P. 11(a).
Further, we note that ACB, not Ashbaugh, is the owner
of the property at issue.
court
may
reasonable
judicially
dispute
notice
See Fed. R. Evid. 201(b)(2) (“The
because
a
it
fact
.
3
.
that
.
can
is
be
not
subject
accurately
to
and
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readily determined from sources whose accuracy cannot reasonably
be
questioned.”);
Papasan
v.
Allain,
478
U.S.
265,
268
n.1
(1986) (noting that courts “are not precluded . . . from taking
notice of items in the public record”).
Thus, as merely a
member of ACB, Ashbaugh does not have standing to appeal on his
own behalf the district court’s order.
See W. Va. Code Ann.
§ 31B-2-201 (Michie 2009) (“A limited liability company is a
legal
entity
distinct
from
its
members.”);
W.
Va.
Code
Ann.
§ 31B-5-501 (Michie 2009) (“A member is not a coowner of . . .
property of a limited liability company.”); Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992) (stating elements of
standing); Smith Setzer & Sons, Inc. v. S.C. Procurement Review
Panel, 20 F.3d 1311, 1317 (4th Cir. 1994) (“It is considered a
fundamental rule that a shareholder — even the sole shareholder
— does not have standing to assert claims alleging wrongs to the
corporation.”) (internal quotation marks and brackets omitted).
Accordingly,
jurisdiction.
we
dismiss
the
appeal
for
lack
of
We deny as moot the motion to strike Ashbaugh’s
pro se supplemental reply brief.
We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
DISMISSED
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