Woodruff et al v. De Facto Barrett Daffin Frappier Treder & Weiss, LLP et al

Filing 28

ORDER DENYING MOTION TO STRIKE AND DIRECTING PLAINTIFFS TO FILE RESPONSE TO MOTION TO DIMISS signed by Judge Richard Seeborg for Judge Saundra Brown Armstrong denying 26 Motion to Strike.(bns, COURT STAFF) (Filed on 1/10/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 4:21-cv-06862-SBA Document 28 Filed 01/10/22 Page 1 of 3

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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8 KEVIN WOODRUFF, et al.,

Plaintiffs,

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v.

11 DE FACTO BARRETT DAFFIN FRAPPIER
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TREDER & WEISS, LLP, et al.,

ORDER DENYING MOTION TO
STRIKE AND DIRECTING
PLAINTIFFS TO FILE RESPONSE
TO MOTION TO DIMISS
Dkt. 26

Defendants.

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Case No: 21-cv-06862-SBA

On September 3, 2021, Plaintiffs Kevin Woodruff, Tanya Stutson, and Wanag

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Tahatan-Bey (“Plaintiffs”), proceeding pro se, initiated the instant action by filing a

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document titled “Trial by Affidavit,” naming as defendants De Facto Barrett Daffin

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Frappier Treder & Weiss, LLP; Unregister Foreign Bar British Agents; Contra Costa

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County; Deborah Cooper; Candace Andersen; and David O. Livingston. Dkt. 1. The

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“Trial by Affidavit” is largely incomprehensible and sets forth no discernable factual

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background, individual causes of action, or demand for relief.

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On November 22, 2021, Defendant Barrett Daffin Frappier Treder & Weiss, LLP

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(“BDFTW”), erroneously sued as De Facto Barrett Daffin Frappier Treder & Weiss, LLP,

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filed a Motion to Dismiss, or in the Alternative, for a More Definite Statement. Dkt. 22.

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The Court notes that, although Keven Woodruff and Tanya Stutson are named as
plaintiffs in the case caption, the “Trial by Affidavit” is signed only by Wanag TahatanBey. Dkt. 1 at 7. Every pleading, motion, and other paper must be signed by each
26 unrepresented party individually. Fed. R. Civ. P. 11(a); see also Civ. L.R. 3-9(a) (“Any
party representing him or herself without an attorney must appear personally and may not
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Plaintiffs are advised that a pro se filing represents only the interests of its signatories; a pro
28 se filing is a nullity insofar as it purports to represent the interests of non-signatories.
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Case 4:21-cv-06862-SBA Document 28 Filed 01/10/22 Page 2 of 3

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Pursuant to Civil Local Rule 7-3(a), a response to the motion was due 14 days after the date

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it was filed. Accordingly, Plaintiffs’ response to BDFTW’s motion to dismiss was due by

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December 6, 2021. To date, no response has been filed.

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Instead, on December 10, 2021, Wanag Tahatan-Bey filed the instant Petition to

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Strike Defendants Insufficient Defense and to Compel Defendants Response to/and by

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Affidavit and with Attorney of Record. Dkt. 26. The Petition to Strike erroneously claims

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that there is no evidence BDFTW’s attorney filed his or her appearance for the record. In

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fact, BDFTW’s attorney of record is Edward A. Treder (“Mr. Treder”), who entered his

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appearance with the filing of BDFTW’s motion to dismiss. See Dkt. 22. The Petition to

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Strike also suggests that Mr. Treder cannot practice law on behalf of BDFTW. In support

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of this assertion, the Petition to Strike purports to quote from a case by the New York Court

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of Appeals—People v. John H. Woodbury Dermatological Inc., 192 N.Y. 454, 454 (1908).

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Dkt. 26 at 3. The quoted language does not appear in that decision (or any decision cited in

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the Petition to Strike), however. Nor do any of the cited decisions support the proposition

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advanced.3 The Petition to Strike is therefore DENIED.

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Regarding BDFTW’s motion to dismiss, the Court’s Civil Standing Order provides

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that the failure to file a timely response to a motion may be construed as consent to the

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relief sought therein. See Dkt. 16-1 ¶ 7. Thus, it is within the Court’s discretion to grant

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BDFTW’s motion as unopposed. See Fed. R. Civ. P. 41(b); Ghazali v. Moran, 46 F.3d 52,

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53 (9th Cir. 1995) (affirming dismissal of pro se action for failure to oppose a motion to

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Like the “Trial by Affidavit,” the Petition to Strike is signed only by Wanag
Tahatan-Bey. Dkt. 26 at 3.
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Although the quoted language in the Petition to Strike contains alterations and
omissions, the Court was able to locate the decision from which it appears to have been
taken. See People ex rel. Chicago Bar Ass’n v. Chicago Motor Club, 362 Ill. 50 56-57
(1935) (“a corporation can neither practice law nor hire lawyers to carry on the business of
practicing law for it”). That case recognizes the now longstanding rule that a corporation
may not practice law, even through a licensed attorney, unless it is organized as a
professional corporation or association. See Professional services—Law practice, 6
Fletcher Cyc. Corp. § 2524. As BDFTW is organized as a professional association (i.e., an
LLP), there is nothing to prohibit BDFTW from practicing law or to prohibit Mr. Treder
from representing BDFTW in this action.
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Case 4:21-cv-06862-SBA Document 28 Filed 01/10/22 Page 3 of 3

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dismiss). Mindful of its obligation to first consider less drastic alternatives to dismissal,

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however, the Court will afford Plaintiffs one further opportunity to respond to the motion.

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Accordingly,

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IT IS HEREBY ORDERED THAT:

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The Petition to Strike is DENIED. Dkt. 26.

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2.

Plaintiffs shall file and serve a response to BDFTW’s motion to dismiss by

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January 21, 2022. Plaintiffs are reminded that pro se litigants are required to comply with

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this Court’s orders, as well as all applicable procedural rules, including the Federal Rules of

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Civil Procedure, the Civil Local Rules, and this Court’s Standing Orders. See King v.

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Atiyeh, 814 F.2d 556, 567 (9th Cir. 1987). IF PLAINTIFFS FAIL TO FILE A

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TIMELY RESPONSE TO THE MOTION OR TO COMPLY WITH ALL

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APPLICABLE PROCEDURAL RULES, THE MOTION MAY BE GRANTED

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AND/OR THE ACTION MAY BE DISMISSED WITHOUT FURTHER NOTICE.

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If Plaintiffs file a response to the motion within the time prescribed, BDFTW

shall have until January 28, 2022 to file a reply.
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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule

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7-1(b), the Court will resolve the motion without oral argument. The hearing set for January

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12, 2022 is VACATED.

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IT IS SO ORDERED.

RS
______________________________
Richard Seeborg for Saundra B. Armstrong
United States District Judge

Dated: January 10, 2022

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