IBEW-NECA Local 505 Welfare and Pension Plans et al v. R.D. Electric, LLC

Filing 12

Order re: Motion to Amend Complaint and Motion to Strike. Any objection to 8 MOTION to Amend Complaint shall be filed by 4/21/09. If no objection is filed, the motion is granted without further order of this court. The 9 MOTION to Strike pro s e 5 Answer to Complaint of limited liability company, R.D. Electric LLC. 9 is granted. Counsel for R.D. Electric LLC must file a notice of appearance by 5/29/09. (Notice of Appearance deadline set for 5/29/2009.). Signed by Judge Kristi K. DuBose on 4/10/09. (cmj)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ) IBEW-NECA Local 505 Welfare and Pension Plans et al., Plaintiffs, ) vs. ) R.D. Electric, L.L.C., ) Defendant. ORDER This matter is before the court on plaintiffs' motion to amend complaint (doc. 8) and plaintiffs' motion to strike the answer of defendant R.D. Electric, L.L.C. (doc. 9). Motion to Amend Plaintiffs move to amend the complaint to add Ronnie D. Davis as defendant in this action. Plaintiffs identify Mr. Davis as the "owner and personal guarantor of Defendant R.D. Electric, L.L.C " and contend that although the original complaint contains allegations against Mr. Davis, counsel mistakenly failed to include him in the caption of the complaint. Rule 15 of the Federal Rules of Civil Procedure provides for amendment of pleadings and, at this stage of the litigation, the amendment shall be allowed "with the opposing party's written consent or the court's leave" which should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). Any objection to the plaintiffs' motion to amend should be filed on or before April 21 , 2009. If no objection is filed, the motion is granted without further order of this court. Motion to Strike Answer Plaintiff also moves the court to strike the answer of defendant R.D. Electric, L.L.C., on CIVIL ACTION NO 09-0011-KD-C ) ) 1 the grounds, in sum, that this defendant is not represented by counsel and is therefore prohibited from appearing in federal court. On March 18, 2009, defendant, R.D. Electric L.L.C, filed an answer to plaintiff's complaint. (doc. 5) The pleading bears the following signature: "Melissa M. Davis, on behalf of RD Electric, LLC, Pro Se." (Id. at 2) Limited liability companies, such as R. D. Electric, L. L.C., are considered to be artificial entities, and, as such, they cannot appear in federal court pro se. See Palazzo v. Gulf Oil Corp., 764 F. 2d 1381 (11th Cir. 1985), cert. denied, 474 U.S. 1058 (1986); Streeter v. Office of Douglas R. Burgess, LLC, 2008 WL 508456 (M. D. Ala.,2008) (holding while the individual defendant could proceed pro se, the limited liability company was required to have representation by counsel) Accordingly, upon consideration, the plaintiff's motion to strike the pro se answer of the limited liability company, R.D. Electric L.L.C., is GRANTED. It is further ORDERED that counsel for R.D. Electric, L.L.C. must file a notice of appearance on or before May 29, 2009. Defendant, R. D. Electric, L. L.C. is strongly cautioned that the failure of counsel to appear on its behalf by that date may result in the entry of a default judgment. DONE and ORDERED this the 10th day of April 2009. /s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE 2

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