PGT Industries, Inc. v. Harris & Pritchard Contracting Services LLC et al

Filing 36

ORDER: Defendant Harris & Pritchard Contracting Services, LLC has until and including February 6, 2013, to retain new counsel. In the event that new counsel is retained, Harris & Pritchard is directed to file a response to the motion for summary judg ment on or before February 20, 2013. Absent a notice of appearance of counsel filed on behalf of Harris & Pritchard by February 6, 2013, this Court will entertain an appropriate motion to strike Harris & Pritchard's pleadings. Thereafter, Harri s & Pritchard will be poised for the entry of default against it. Defendant David M. Harris has until February 6, 2013, to notify the Court if he intends to proceed in this action pro se or to file a notice of appearance of counsel. If he intends to proceed pro se, Harris is directed to file a response to Plaintiff PGT Industries, Inc.'s motion for summary judgment by or on February 6, 2013. If Harris fails to so file, the Court will consider PGT's motion for summary judgment as unopposed. In the event that new counsel is retained, Harris is directed to file a response to the motion for summary judgment on or before February 20, 2013. Signed by Judge Virginia M. Hernandez Covington on 1/22/2013. (LRM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PGT INDUSTRIES, INC.,
Plaintiff,
v.

Case No. 8:12-cv-358-T-33TGW

HARRIS & PRITCHARD
CONTRACTING SERVICES, LLC,
and DAVID M. HARRIS,
Defendants.
________________________________/
ORDER
This

matter

comes

before

the

Court

sua

sponte.

On

December 17, 2012, the Honorable Thomas G. Wilson, United
States

Magistrate

Unopposed

Motion

Judge,
to

entered

Withdraw

as

an

Order

Counsel

granting

for

the

Defendants

(Doc. # 30) filed by Nicole E. Durkin and the Anderson Law
Group.

(Doc.

#

34).

Accordingly,

Defendants

Harris

&

Pritchard Contracting Services, LLC and David M. Harris are
no

longer

represented

by

counsel.

Additionally,

neither

defendant has filed a response to Plaintiff PGT Industries,
Inc.’s

motion

for

summary

judgment.

(Doc.

#

33).

The

deadline to do so has now passed.
For

the

reasons

that

follow,

the

Court

will

allow

Harris & Pritchard until and including February 6, 2013, to
file a notice of appearance of new counsel. If Harris &

Pritchard fails to so file, this Court will entertain an
appropriate

motion

responsive

pleadings,

default

judgment.

to

strike

Harris

subjecting

Harris

Additionally,

the

&
&

Court

Pritchard’s
Pritchard
will

to

allow

Harris, as an individual, until and including February 6,
2013, to notify the Court if he intends to proceed in this
action pro se and to file a response to PGT’s motion for
summary judgment. If Harris fails to do so, the Court will
consider PGT’s motion for summary judgment as unopposed.
Furthermore,

in

the

event

that

either

Defendant

timely

retains new counsel, that Defendant has until and including
February 20, 2013, to file a response to the motion for
summary judgment.
Discussion
On December 1, 2011, PGT filed a complaint in state
court against Harris & Pritchard and Harris. (Doc. # 2).
The case was removed to this Court on February 21, 2012.
(Doc. # 1). An unopposed motion to withdraw as counsel was
filed by counsel for both Defendants on November 27, 2012.
(Doc. # 30). PGT filed a motion for summary judgment on
December 13, 2012. (Doc. # 33). On December 17, 2012, Judge
Wilson

granted

the

motion

to

withdraw

as

counsel

and

directed Harris & Pritchard to file a notice of appearance
2

of

new

Wilson

counsel

within

cautioned

thirty

Harris

&

days.

Pritchard

(Doc.
that

#

34).

“a

Judge

corporation

must be represented by counsel and cannot appear pro se.”
(Id. at 1). Neither Harris & Pritchard nor Harris has filed
a notice of appearance of new counsel or a response to
PGT’s motion for summary judgment.
Pursuant
2.03(e),
through

“A

to

Middle

District

corporation

counsel

may

admitted

to

of

appear

Florida

Local

Rule

and

heard

only

practice

be
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,

corporation’s
requirement

at

*6

financial

that

it

(M.D.

Fla.

constraints

have

legal

Mar.
do

19,
not

2010)

(“A

excuse

the

representation

in

Court

proceedings.”); United States v. Hagerman, 545 F.3d 579,
581-82 (7th Cir. 2008) (“Pro se litigation is a burden on
the judiciary, and the burden is not to be borne when the
litigant has chosen to do business in entity form.
3

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

through

their

dispute

alternative

However,

if

Harris

means
&

without
outside

Pritchard

legal

representation

the

Court’s

intends

to

province.

continue

to

litigate in this Court, it must have legal representation.
In the interests of fairness, the Court will allow Harris &
Pritchard until and including February 6, 2013, to hire an
attorney.

However, if a notice of appearance of counsel is

not filed on behalf of Harris & Pritchard on or before
February 6, 2013, Harris & Pritchard’s responsive pleadings
will be subject to being stricken upon the filing of an
appropriate motion. Thereafter, Harris & Pritchard will be
poised for the entry of default against it.
Furthermore, neither Harris & Pritchard nor Harris has
filed a response to PGT’s motion for summary judgment. The
deadline

for

filing

such

responses

has

elapsed.

In

the

event that Harris & Pritchard timely retains new counsel,
Harris & Pritchard is directed to file a response to the
motion for summary judgment on or before February 20, 2013.

4

As an individual, Defendant Harris has every right to
represent
However,

himself
Harris

in

is

this

action.

directed

to

28

inform

U.S.C.
the

§

Court

1654.
if

he

intends to proceed in this action pro se or to file a
notice of appearance of new counsel on or before February
6, 2013. If Harris intends to proceed in this action pro
se, he is directed to file a response to PGT’s motion for
summary judgment on or before February 6, 2013. If Harris
fails to so file, the Court will consider PGT’s motion for
summary judgment as unopposed. If Harris timely retains new
counsel, he is directed to file a response to the motion
for summary judgment on or before February 20, 2013.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Harris & Pritchard Contracting Services, LLC
has until and including February 6, 2013, to retain
new

counsel.

In

the

event

that

new

counsel

is

retained, Harris & Pritchard is directed to file a
response
before

to

the

February

motion
20,

2013.
filed

appearance

of

counsel

Pritchard

by

February

entertain

an

for

6,

summary

judgment

Absent
on

behalf

2013,

appropriate motion
5

a

to

this

on

notice
of

strike

of

Harris

Court

or

&

will

Harris

&

Pritchard’s pleadings.

Thereafter, Harris & Pritchard

will be poised for the entry of default against it.
(2) Defendant David M. Harris has until February 6, 2013,
to notify the Court if he intends to proceed in this
action pro se or to file a notice of appearance of
counsel. If he intends to proceed pro se, Harris is
directed

to

file

a

response

to

Plaintiff

PGT

Industries, Inc.’s motion for summary judgment by or
on February 6, 2013. If Harris fails to so file, the
Court will consider PGT’s motion for summary judgment
as

unopposed.

In

the

event

that

new

counsel

is

retained, Harris is directed to file a response to the
motion for summary judgment on or before February 20,
2013.
DONE and ORDERED in Chambers, in Tampa, Florida, this
22nd day of January, 2013.

Copies: All Counsel of Record
Harris & Pritchard Contracting Services, LLC
Mr. David M. Harris
P.O. Box 42307
North Charleston, South Carolina 29423
6