LimoStars Incorporated v. New Jersey Car and Limo Incorporated
Filing
33
ORDER denying as moot 31 Motion to Continue. The April 14, 2011 default damages hearing ishereby VACATED. Defendant must retain an attorney, licensed to practice law in Arizona by 4/29/11. Signed by Magistrate Judge Lawrence O Anderson on 4/14/11. (see order for full details)(DMT)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
10
11
12
13
14
15
)
)
Plaintiff,
)
)
vs.
)
)
)
New Jersey Car and Limo, Inc., a New)
Jersey corporation,
)
)
Defendant.
)
)
)
LimoStars, Inc.,
16
No. CV-10-2179-PHX-LOA
ORDER
This action arises on the April 12, 2011 appearance of Defendant New
17
Jersey Car and Limo, Inc. (“New Jersey Limo”), a New Jersey corporation, by its Chief
18
Executive Officer, Malak Faltawws, a non-lawyer. (Doc. 29) Despite the filing of this
19
action in October, 2010, Mr. Faltawws filed a pro se appearance on behalf of New Jersey
20
Limo only two days before the April 14, 2011default damages hearing which has been
21
pending since February 10, 2011. (Doc. 21) On April 14, 2011, Mr. Faltawws also filed
22
a document which the Court deems a motion to continue the default damages hearing set
23
for that same day.1 (Doc. 31)
24
I. Background
25
Plaintiff LimoStars, Inc. (“Plaintiff”) commenced this trademark
26
27
28
1
“Please allow Motion of Continuous (sic) for this cause to locate Attorney to
represent my company in your court that has the authority to practice in Court of Arizona.”
(Doc. 31 at 1)
1
infringement action on October 12, 2010. (Doc. 1) On October 21, 2010, Plaintiff
2
consented to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 13) On
3
December 21, 2010, Plaintiff filed an Affidavit of Service of the Summons and
4
Complaint purportedly prepared by Carmen Molina, a New Jersey process server, stating
5
that New Jersey Limo, was served on December 8, 2010 at 1:50 p.m. c/o the New Jersey
6
Department of Treasury, 33 West State Street, Trenton, New Jersey. (Doc. 17) Federal
7
Rule of Civil Procedure 12(a) (1) provides, in relevant part, that a defendant must serve
8
an answer “within 21 days after being served with the summons and complaint.”
9
Fed.R.Civ.P. 12(a)(1). Defendant New Jersey Limo did not file an answer or otherwise
10
respond to the Complaint within the time allotted under Rule 12(a)(1). The Clerk of
11
Court entered Defendant’s default on February 8, 2011. (Doc. 20) An April 14, 2011
12
default damages hearing before the undersigned Magistrate Judge has been pending since
13
mid-February 2011. (Doc. 21)
14
II. Practice of Law
15
In federal courts, only licensed attorneys may represent a corporation or
16
other entity. Best Western Intern., Inc. v. Fish Creek Holdings, LLC, 2010 WL 2790118,
17
* 1 (D.Ariz., July 14, 2010) (citing Rowland v. Cal. Men’s Colony, Unit II Men’s
18
Advisory Counsel, 506 U.S. 194, 201-202 (1993) (“It has been the law for the better part
19
of two centuries . . . that a corporation may appear in federal courts only through licensed
20
counsel.”) (citing Osborn v. President of Bank of U.S., 9 Wheat. 738, 829, 6 L.Ed. 204
21
(1824)); D-Beam Ltd. P'ship v. Roller Derby Skates, Inc., 366 F.3d 972, 973-74 (9th Cir.
22
2004) (“It is a longstanding rule that ‘corporations and other unincorporated associations
23
must appear in court through an attorney.’”) (alteration and citation omitted); In re Am.
24
W. Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (“Corporations and other unincorporated
25
associations must appear in court through an attorney.”); U.S. v. High Country Broad.
26
Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (holding that a corporation’s president and sole
27
shareholder could not make an “end run around” the counsel requirement by intervening
28
pro se rather than retaining counsel to represent the corporation) (citing 28 U.S.C. §
-2-
1
1654)). See also, National Union Fire Ins. Co. of Pittsburgh, PA v. Excel Staffing, 2011
2
WL 31192, * 1 n. 1 (D.Ariz., January 5, 2011).
3
Unless federal law addresses an issue like the prohibition of a non-lawyer
4
representing a corporation in a district court proceeding, the District Court of Arizona
5
turns to Arizona law regarding the boundaries of practicing of law without a license and
6
attorney discipline. Marchant v. U.S. Collections West, Inc., 12 F. Supp. 2d 1001, 1005
7
(D. Ariz. 1998); In re Oladiran, 2010 WL 3775074, * 1 (D.Ariz., Sept. 21, 2010)
8
(“[L]ocal Rule of Civil Procedure 83.2 governs attorney discipline in this Court, and
9
provides that the Arizona Rules of Professional Conduct, Ariz. R. Sup.Ct. 42 . . . shall
10
apply to attorneys authorized to practice before the Court.”) .
11
Arizona law also forbids non-lawyers to practice law on behalf of other
12
individuals or corporations in a judicial proceeding. Rule 31(a)(2)(A)(3) and (b), Ariz. R.
13
Sup.Ct. While a natural person can always appear pro per, a corporation is an entity unto
14
itself quite separate from its owners and officers. In order to respect the corporate form,
15
Arizona long ago adopted the rule that a corporation can not appear in court without a
16
lawyer. Jacquez v. Diem Corp., 2003 WL 25548423, * 3 (D. Ariz. 2003) (citing Boydston
17
v. Strole Development Company, 193 Ariz. 47, 969 P.2d 653 (Ariz. 1998) and Ramada
18
Inns, Inc. v. Lane & Bird Advertizing, Inc., 102 Ariz. 127, 128, 426 P.2d 395, 396 (Ariz.
19
1967)). See also, State v. Liberty Bail Bonds, 2008 WL 4095513, * 3 n. 6 (Ariz.Ct.App.
20
2008).
21
There is no doubt that the filing of an answer, motion to dismiss for lack of
22
subject-matter jurisdiction, or motion to set aside entry of default on behalf of a
23
corporation constitute the “practice of law” within the meaning of both federal and
24
Arizona law. While there are some minor exceptions, none apply here.
25
III. Discussion
26
Even though Mr. Faltawws is not an attorney, his appearance and motion to
27
continue herein on behalf of Defendant New Jersey Limo will not, at least initially, be
28
treated as a nullity. Boydston, 969 P.2d. at 656. In an abundance of fairness to Defendant
-3-
1
and its non-lawyer CEO, the Court will sua sponte vacate the April 14, 2011 default
2
damages hearing to allow New Jersey Limo to retain counsel. D-Beam Ltd. P’ship, 366
3
F.3d at 974 (“[T]hough a corporate officer’s signing the notice of appeal does not render
4
that notice invalid, all subsequent motions and pleadings must be filed by counsel. Thus,
5
even if Evans’s notice of appeal were adequate to assert D-Beam’s claims, we lack
6
jurisdiction over those claims because D-Beam did not retain counsel prior to the filing of
7
motions and pleadings on appeal.”); Barrios v. New York City Housing, 564 F.3d 130,
8
132-133 (2nd Cir. 2009).
9
Defendant New Jersey Limo will be allowed a reasonable time and a single
10
opportunity to retain a lawyer, licensed to practice law in Arizona and admitted to
11
practice in this District Court or authorized to practice law in this District Court upon pro
12
hoc vice application, or the Court will proceed with the default judgment proceedings.
13
United States v. High Country Broadcasting Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993)
14
(affirming district court’s entry of default judgment against the corporation when the
15
corporation failed to retain counsel for the duration of the litigation and attempted to
16
proceed through its unlicensed president and sole shareholder). Absent a showing of
17
good cause or a written settlement agreement, the failure of New Jersey Limo to
18
promptly retain counsel, consistent with this order, and appear in this action may result in
19
entry of a default judgment against it. Ackra Direct Marketing Corp. v. Fingerhut Corp.,
20
86 F.3d 852, 855-56 (8th Cir. 1996) (affirming district court’s entry of default judgment,
21
noting that “[a]ppellants’ excuses for their conduct do not warrant a finding that the
22
district court abused its discretion in granting default judgment,” where one of the
23
excuses included was that the company was “financially unable to secure new legal
24
counsel”); GFSI, Inc. v. San Sun Hats & Cap Co., Ltd., 2008 WL 489318 (D.Kan., Feb.
25
20, 2008) (court struck invalid pro se response on behalf of defendant corporation
26
because it was in violation of both court’s order and the rule that corporations must be
27
represented by counsel.).
28
The additional time provided herein will also give the parties a fair chance
-4-
1
to try to quickly settle this case without further expense and delay which is consistent
2
with Rule 1, Fed.R.Civ.P. Unless Mr. Faltawws has already retained counsel, the Court
3
hereby directs Mr. Faltawws to promptly contact Plaintiff’s counsel directly at his office
4
in Wood River, Illinois in an effort to settle this case to the satisfaction of all parties.
5
On the Court’s own motion,
6
IT IS ORDERED that the April 14, 2011default damages hearing is
7
8
9
hereby VACATED.
IT IS FURTHER ORDERED that unless the parties promptly settle this
case, Defendant New Jersey Car and Limo, Inc. must retain an attorney, licensed to
10
practice law in Arizona and admitted to practice in this District Court or authorized to
11
practice law in this District Court upon pro hoc vice application, and file an appearance
12
herein on or before Friday, April 29, 2011. If Defendant New Jersey Car and Limo, Inc.
13
does not timely comply with this order regarding obtaining counsel, Plaintiff is hereby
14
authorized to file a notice requesting the Court reset the default damages hearing on a
15
date and time convenient to Plaintiff.
16
IT IS FURTHER ORDERED that there will be no further extensions of
17
time for Defendant New Jersey Car and Limo, Inc. to retain an attorney in this lawsuit.
18
19
20
21
22
IT IS FURTHER ORDERED that Malak Faltawws’ motion to continue,
doc. 31, is DENIED as moot.
The Clerk of Court is kindly directed to mail a copy of this order to
Defendant New Jersey Car and Limo, Inc. c/o Malak Faltawws.
Dated this 14th day of April, 2011.
23
24
25
26
27
28
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?