Thomas v. Smith, Dean & Associates, Inc. et al

Filing 36

ORDER: The stay of this case is hereby lifted and the Clerk is directed to re-open the case and return it to active status. Plaintiff is directed to advise the Court in writing as to the status of this case on or before March 1, 2013, including whe ther Plaintiff intends to proceed with this case against any or all of the Defendants and/or whether this case has been resolved in whole or in part by the bankruptcy proceedings or otherwise. Defendant Smith, Dean & Associates, Inc. has until and i ncluding March 7, 2013, to retain and file a notice of appearance of new counsel. Absent a notice of appearance of counsel filed on behalf of Smith, Dean & Associates by March 7, 2013, this Court will entertain an appropriate motion to strike Smith, Dean & Associates's pleadings. Thereafter, Smith, Dean & Associates will be poised for the entry of default against it. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/21/2013. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELAINE THOMAS,
Plaintiff,
v.

Case No: 8:10-cv-1444-T-33EAJ

SMITH, DEAN & ASSOCIATES, INC.,
ANGIE SMITH, and MAUREEN BISHOP,
Defendants.
_________________________________/
ORDER
This matter is before the Court sua sponte.

On October

19, 2011, pursuant to the provisions of 11 U.S.C. §§ 362 &
1301(a),

this

Court

entered

an

Order

staying

and

administratively closing this case as to Defendant Smith, Dean
& Associates, Inc. due to Smith, Dean & Associates's filing
for protection under the United States Bankruptcy Code in the
United States Bankruptcy Court for the Middle District of
Florida, Tampa Division, Case No. 3:11-bk-07453. (Doc. # 31).
Based on Plaintiff Elaine Thomas's election to stay the case
as to the other two defendants who are not subject to the
automatic bankruptcy stay (Doc. # 32), the Court stayed and
administratively closed the case in its entirety on November
14, 2011 (Doc. # 34).
The

Court's

October

19,

2011,

Order

provided

that

"Plaintiff may reinstate this case to active status . . . upon

proper motion when the bankruptcy court lifts the stay, the
stay

lapses

concluded,
proceedings.

or

the

should

bankruptcy

this

suit

proceedings
not

be

are

resolved

otherwise
by

those

If this suit is resolved by the bankruptcy

proceedings, Plaintiff shall promptly move for dismissal of
this case."

(Doc. # 31 at 2).

A review of the bankruptcy docket reveals that the
bankruptcy case was closed on January 18, 2013 (Bankr. Doc. #
75); however, Plaintiff has failed to promptly request the
Court to either re-open or dismiss this case as instructed by
the Court's October 19, 2011, Order.1

Nevertheless, in light

of the conclusion of the bankruptcy proceedings, the Court
finds it appropriate to lift the stay and re-open this case.
Plaintiff is instructed to advise the Court in writing on or
before March 1, 2013, as to the status of this case, including
whether she intends to proceed with this case against any or

1

The Court notes that Smith, Dean & Associates failed to
comply with the Court’s June 7, 2012, Order which directed it
“to file a status report of its bankruptcy case within 14 days
and every 90 days thereafter.” (Doc. # 35). Such failure to
comply with the Court’s Order was presumably due to the fact
that Smith, Dean & Associates’s counsel had previously
withdrawn and had not been replaced, as discussed further
below. In any event, the Court acknowledges that based on
Smith, Dean & Associates’s failure to file any status reports,
Plaintiff may not in fact be aware that the bankruptcy case
has been closed.
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all of the Defendants and/or whether this case has been
resolved in whole or in part by the bankruptcy proceedings or
otherwise.
Furthermore, on November 3, 2011, the Honorable Elizabeth
A. Jenkins, United States Magistrate Judge, entered an order
(Doc. # 33) granting Daniel W. Anderson and Tracy Martinell
Henry’s motion to withdraw as counsel for Smith, Dean &
Associates. (Doc. #

29).

To date, Smith, Dean & Associates

has not filed a notice of appearance of new counsel.
However, pursuant to Middle District of Florida Local
Rule 2.03(e), “A corporation may appear and be heard only
through counsel admitted to practice in the Court.”

Further,

a long line of cases maintains that corporations may not
appear pro se in this Court. See Palazzo v. Gulf Oil Corp.,
764 F.2d 1381, 1385 (11th Cir. 1985) (“The rule is well
established that a corporation is an artificial entity that
can act only through agents, cannot appear pro se, and must be
represented by counsel.”); Textron Fin. Corp. v. RV Having Fun
Yet, Inc., No. 3:09-cv-2-J-34TEM, 2010 WL 1038503, at *6 (M.D.
Fla. Mar. 19, 2010) (“A corporation’s financial constraints do
not excuse the requirement that it have legal representation
in Court proceedings.”); United States v. Hagerman, 545 F.3d
579, 581-82 (7th Cir. 2008) (“Pro se litigation is a burden on
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the judiciary, and the burden is not to be borne when the
litigant has chosen to do business in entity form.

He must

take the burdens with the benefits.”) (internal citations
omitted).
Notwithstanding

the

cases

cited

above,

the

Court

acknowledges that the parties are, of course, always free to
resolve their dispute without legal representation through
alternative means outside the Court’s province. However, if
Smith, Dean & Associates intends to continue to litigate in
this

Court,

it

must

have

legal

representation.

In

the

interests of fairness, the Court will allow Smith, Dean &
Associates until and including March 7, 2013, to retain and
file a notice of appearance of new counsel.

However, if a

notice of appearance of counsel is not filed on behalf of
Smith, Dean & Associates on or before March 7, 2013, and the
claims

against

Smith,

Dean

&

Associates

have

not

been

otherwise resolved, the Court will entertain an appropriate
motion

to

pleadings.

strike

Smith,

Dean

&

Associates’s

responsive

Thereafter, Smith, Dean & Associates will be

poised for the entry of default against it.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The stay of this case is hereby lifted and the Clerk is
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directed to re-open the case and return it to active
status.
(2)

Plaintiff is directed to advise the Court in writing as
to the status of this case on or before March 1, 2013,
including whether Plaintiff intends to proceed with this
case against any or all of the Defendants and/or whether
this case has been resolved in whole or in part by the
bankruptcy proceedings or otherwise.

(3)

Defendant Smith, Dean & Associates, Inc. has until and
including March 7, 2013, to retain and file a notice of
appearance of new counsel. Absent a notice of appearance
of counsel filed on behalf of Smith, Dean & Associates by
March 7, 2013, this Court will entertain an appropriate
motion to strike Smith, Dean & Associates’s pleadings.
Thereafter, Smith, Dean & Associates will be poised for
the entry of default against it.
DONE and ORDERED in Chambers in Tampa, Florida, this 21st

day of February, 2013.

Copies:
All Counsel of Record
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