Tucker et al v. Ours et al

Filing 12

ORDER denying Plaintiffs 9 Motion to Amend/Correct; granting Defendants 11 Motion to Stay Discovery pending a ruling by the Court on Defendants' Motion to Dismiss. Within twenty-one (21) days following the Court's ruling on Defendants ' Motion to Dismiss, should this case remain pending before the Court, the parties are directed to meet and confer pursuant to Rule 26(f). Additionally, the parties are to file a Rule 26(f) Report within fourteen (14) days of the Rule 26(f) conf erence at which time a Scheduling Order will be entered by the Court. The Court gives Ironman Wrecker Service fourteen (14) days from the date of this Order to retain counsel and to have counsel enter an appearance in this case. Signed by Magistrate Judge R. Stan Baker on 10/14/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

ROBERT E. TUCKER; and IRONMAN
WRECKER SERVICE, INC.,
Plaintiffs,

CIVIL ACTION NO.: 2:15-cv-97

v.
ALAN OURS; MIKE BROWNING; MARK
STAMBAUGH; BILL BRUNSON; BOB
COLEMAN; CLYDE TAYLOR; MARY
CALLAWAY; MATT DOERING; CAPTAIN
TOMMY TINDALE; LT. KENNY ELLIS;
DALE PROVENZO; CAPTAIN WILLIE
MCCOY; ALLEN BOOKER; AND
RICHARD STRICKLAND,
Defendants.

ORDER
Before the Court is Plaintiff’s Motion to Add Parties (doc. 9), and Defendants’ Motion to
Stay Discovery Pending Resolution of Defendants’ Motion to Dismiss (doc. 11). For the reasons
set forth below, Plaintiff’s Motion to Add Parties is DENIED and Defendants’ Motion to Stay is
GRANTED.
BACKGROUND
Plaintiffs Robert E. Tucker and Ironman Wrecker Service, Inc. (“Ironman Wrecker
Service”), filed this action, pro se, on July 21, 2015 against several defendants pursuant to 42
U.S.C. § 1983. (Doc. 1.) Plaintiffs amended their claims by filing an Amended Complaint on
August 4, 2015. (Doc. 4.) In their original and amended complaints, Plaintiffs levy allegations
against Defendants pertaining to Plaintiffs’ automotive towing business.

Plaintiffs contend

Defendants wrongfully removed them from Glynn County Georgia’s rotating call list for towing
operators. Though Mr. Tucker is not an attorney, he signed the Complaint and Amended
Complaint not only on behalf of himself but also on behalf of Ironman Wrecker Service, as the
President of that company. (Doc. 1 at p. 4; Doc. 4 at p. 7.)
On October 2, 2015, Defendants filed a Motion to Dismiss all of Plaintiffs’ claims. On
that same date, Plaintiffs filed a Motion to add ten more Defendants to this case. (Doc. 9.)
Plaintiffs sought to add these Defendants in both their individual and official capacities. On
October 8, 2015, Defendants filed a Motion to Stay all Discovery.

(Doc. 11.)

Therein,

Defendants request that all discovery be stayed until such time as the Court rules on their Motion
to Dismiss.
DISCUSSION
I.

Mr. Tucker’s Attempt to Represent Ironman Wrecker Service

Mr. Tucker has filed claims not only on behalf of himself but also on behalf of Ironman
Wrecker Service. However, it does not appear that Mr. Tucker is an attorney, much less admitted
to practice before this Court. “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.”
Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir.1985); see also, Rowland v. California
Men’s Colony, 506 U.S. 194, 201–02 (1993) (non-natural persons or “artificial entities” (e.g.,
corporations, partnerships, and associations) “may appear in federal courts only through licensed
counsel”); In re Glover, No. 13-12445, 2014 WL 688095, at *8, n.2 (Bankr. S.D. Ga. Feb. 19,
2014) (holding individual cannot represent limited liability company and that corporation must
retain counsel to represent it). Furthermore, pursuant to Local Rule 83.5(c) “[a]ny person who is
not admitted to the bar of this Court . . . and who exercises in this Court any of the privileges as a

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member of its bar, or pretends to be entitled to do so, shall be in contempt of this Court and
subjected to appropriate punishment.” See also, 28 U.S.C. § 1654 (“In all courts of the United
States the parties may plead and conduct their own cases personally or by counsel . . . .”) (emphasis
added). The Second Circuit has summarized the following reasons for requiring an attorney to
represent non-natural persons:
[T]he conduct of litigation by a non-lawyer creates unusual burdens not only for the
party he represents but as well for his adversaries and the court. The lay litigant
frequently brings pleadings that are awkwardly drafted, motions that are
inarticulately presented, [and] proceedings that are needlessly multiplicative. In
addition to lacking the professional skills of a lawyer, the lay litigant lacks many of
the attorney’s ethical responsibilities, e.g., to avoid litigating unfounded or
vexatious claims.
Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.1983). This rule holds true even
where the non-lawyer attempting to represent the corporation is the sole shareholder or officer of
the corporation. See, Adams v. United States, No. 8:07CV1089T24TBM, 2007 WL 2993927, at
*1 (M.D. Fla. Oct. 11, 2007).
Because Ironman Wrecker Service is not represented by counsel in this case, it appears that
all claims asserted on behalf of that entity are due to be stricken and dismissed. However, in an
abundance of caution, the Court gives Ironman Wrecker Service fourteen (14) days from the
date of this Order to retain counsel and to have counsel enter an appearance in this case. On or
before that date, Ironman Wrecker Service must have an attorney admitted to practice before this
Court enter an appearance on its behalf on this Court’s docket. Should an attorney not enter such
an appearance, the Court will dismiss all claims asserted by Ironman Wrecker Service from this
case.

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II.

Plaintiffs’ Motion to Add Defendants

Plaintiffs amended their Complaint once on August 4, 2015, (doc. 4), and now seek to
amend the Complaint again by adding several Defendants (doc. 9). Pursuant to Federal Rule of
Civil Procedure 15(a), a plaintiff may amend his complaint once as a matter of right either within
twenty-one days after serving it or within twenty-one days after service of a required responsive
pleading or motion. However, as to all other amendments, a plaintiff may only amend “with the
opposing party’s written consent or with the court’s leave” which the court “should freely give . . .
when justice so requires.” Fed. R. Civ. P. 15(a)(2). “The thrust of Rule 15(a) is to allow parties
to have their claims heard on the merits, and accordingly, district courts should liberally grant
leave to amend when ‘the underlying facts or circumstances relied upon by a plaintiff may be a
proper subject of relief.’” In re Engle Cases, 767 F.3d 1082, 1108 (11th Cir. 2014) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
While leave to amend should ordinarily be freely given, in the case at hand, Plaintiffs have
not provided any grounds for adding the new defendants to this case. Plaintiffs have not detailed
any factual allegations against these individuals or what claims they will assert against them.
Instead, Plaintiffs have merely listed these potential defendants and asked for leave to add them to
the case. With such a bare pleading, the Court cannot grant Plaintiffs’ request. Should Plaintiffs
seek to add any defendant to this case, they must not only identify that potential defendant, they
must also identify the reasons they seek to add the defendant and the claims and allegations they
intend to assert against the defendant.
III.

Defendants’ Motion to Stay Discovery

Defendants seek to stay discovery until the Court resolves their Motion to Dismiss. With
regard to the timing of discovery, the Court of Appeals for the Eleventh Circuit has recognized that

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[i]f the district court dismisses a nonmeritorious claim before discovery has begun,
unnecessary costs to the litigants and to the court system can be avoided.
Conversely, delaying ruling on a motion to dismiss such a claim until after the
parties complete discovery encourages abusive discovery and, if the court
ultimately dismisses the claim, imposes unnecessary costs. For these reasons, any
legally unsupported claim that would unduly enlarge the scope of discovery should
be eliminated before the discovery stage, if possible.
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 (11th Cir. 1997) (footnotes omitted).
For these reasons, this Court, and other courts within the Eleventh Circuit, routinely find good
cause to stay the discovery period where there is a pending motion to dismiss. See, e.g., Habib v.
Bank of Am. Corp., No. 1:10-cv-04079-SCJ-RGV, 2011 WL 2580971, at *6 n.4 (N.D. Ga. Mar.
15, 2011) (citing Chudasama, 123 F.3d at 1368) (“[T]here is good cause to stay discovery
obligations until the District Judge rules on [the defendant’s] motion to dismiss to avoid undue
expense to both parties.”); Berry v. Canady, No. 2:09-cv-765-FtM-29SPC, 2011 WL 806230, at *1
(M.D. Fla. Mar. 2, 2011) (quoting Moore v. Potter, 141 F. App’x 803, 807 (11th Cir. 2005))
(“[N]either the parties nor the court have any need for discovery before the court rules on the
motion [to dismiss].”).
In the case at hand, the Court finds that good cause exists to stay this case until such time as
a ruling is made on Defendants’ Motion and that no prejudice will accrue to the parties if a stay is
granted. Specifically, a ruling on Defendants’ Motion to Dismiss before the commencement of
discovery may save the parties time and resources by clarifying what issues, if any, the parties will
need to address in discovery.
THEREFORE, IT IS HEREBY ORDERED that all discovery is stayed pending a ruling by
the Court on Defendants’ Motion to Dismiss.
IT IS FURTHER ORDERED that within twenty-one (21) days following the Court’s
ruling on Defendants’ Motion to Dismiss, should this case remain pending before the Court, the

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parties are directed to meet and confer pursuant to Rule 26(f). Additionally, the parties are to file
a Rule 26(f) Report within fourteen (14) days of the Rule 26(f) conference at which time a
Scheduling Order will be entered by the Court.
SO ORDERED, this 14th day of October, 2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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