Kelley v. Staff Zone

Filing 12

ORDERED that Plaintiff has twenty one days from the date this Order is served to amend re 1 Complaint or else face dismissal of this case. Staff Zone, meanwhile, must retain counsel within those same twenty one days or face a recommendation that the Court strike its answer and motion for summary judgment. Signed by Magistrate Judge G. R. Smith on 8/12/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RONALD KELLEY,
Plaintiff,
Case No. CV414-282

V.

STAFF ZONE, INC.,
Defendants.

ORDER
Plaintiff Ronald Kelley, proceeding pro Se, claims that Staff Zone,
Inc. fired him because of his age. Doc. 1 at 3. Staff Zone, also proceeding
pro

Se,

answered and moved for summary judgment. Docs. 6 & 7. Upon

preliminary review, however, none of the parties' pleadings and motions
can survive in their present forms.
First, Kelley's complaint. All complaints, including those filed by
pro se plaintiffs,' must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
Kelley's complaint satisfies the "short" requirement. It makes three

' See Taylor v. Nat'l Sec. Agency, 2015 WL 3939065 at * 2 (11th Cir. June 29, 2015)
(citing Aibra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)) ("We construe pro se
briefs liberally, but pro se litigants nonetheless must conform to procedural rules.")

allegations -- that defendant (1) "fail[ed] to send [him] to work," (2) "told
[him] that [he] wasn't showing up for work," and (3) committed "age
discrimination," doe. 1 at 2-3 -- but otherwise does not satisfy the liberal
pleading standards applied to pro se litigants. Critically, Kelley includes
no facts suggesting that Staff Zone discriminated against him on the
basis of age (or any other protected characteristic for that matter).
Compounding his complaint's deficiencies, Kelley has failed to
follow the Court's Order instructing him to confer with Staff Zone
pursuant to Fed. R. Civ. P. 26(f). 2 See doe. 3 at 3. He also has seemingly
ignored the Court's instructions on how to respond to summary
judgment motions,' id. at 5, and, more generally, how to litigate his case.

2

Ignoring court orders risks dismissal. See L.R. 41(b); Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (district courts may sua sponte dismiss
an action pursuant to Fed. R. Civ. P. 41(b) if the plaintiff fails to comply with court
rules or a court order); Donaldson v. Clark, 819 F.2d 1551, 1557 n. 6 (11th Cir.1987)
(district court has inherent authority to sanction parties for "violations of procedural
rules or court orders," up to and including dismissals with prejudice).
His response consisted of a list of cars he's "had since coming to Savannah," (doe.
11), a Georgia Department of Labor explanation for its denial of unemployment
benefits (doe. 9), and a letter to the Court. Doe. 10. The first two documents are
irrelevant to or do not support his claims. And his letter is a disfavored medium for
presenting arguments to the Court. See In re Unsolicited Letters to Federal Judges,
120 F. Supp. 2d 1073 (S.D. Ga. 2000) (letters can get lost, while motions, briefs, etc.,
get filed); Fed. R. Civ. P. 7(b) (mandating that all requests for court orders be by
motion). More importantly, none of those documents constitute an appropriate
response under Fed. R. Civ. P. 56 and Local Rule 56.1 to Staff Zone's motion for
summary judgment.

Nevertheless, "when a more carefully drafted complaint might state a
claim, a district court should give a pro se plaintiff at least one chance to
amend the complaint before the court dismisses the action." Jenkins v.

Walker, 2015 WL 4153684 at * 2 (11th Cir. July 10, 2015) (citing Bank v.
Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 & n. 1 (11th Cir.
2002) (en bane)); see also Fed. R. Civ. P. 15.
In light of his pro se status, the Court will allow Kelley that chance.
To that end, he has 21 days from the date this Order is served to file an
amended complaint. It must include the aforementioned "short and
plain statement" of his claim, Fed. R. Civ. P. 8(a)(2), and the facts, not
legal conclusions, supporting his position.

See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). He doesn't need to "present every

last detail" of his case, Swain v. Col. Tech. Univ., 2014 WL 3012693 at *
2 (S.D. Ga. June 12, 2014), but he must give "fair notice of what the. .
claim is and the grounds upon which it rests." Erickson v. Pardus, 551
U.S. 89, 93 (2007) (emphasis added). If Kelley does not timely amend his
complaint, he faces dismissal of this case for failure to follow a Court
order and for failure to state a claim.

3

Staff Zone's answer and motion for summary judgment are equally
deficient, though for different reasons. All parties in United States
courts "may plead and conduct their own cases personally." 28 U.S.C. §
1654. But "neither a corporation nor a partnership can appear pro Se;
rather, they must be represented by counsel."

United States v. Lena,

2007 WL 4578336 at *1 (S.D. Fla. Dec. 27, 2007) (citing Palazzo v. Gulf
Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) ("Corporations and
partnerships, both of which are fictional legal persons, obviously cannot
appear for themselves personally. With regard to these two types of
business associations, the long standing and consistent court
interpretation of § 1654 is that they must be represented by licensed
counsel.")). Furthermore, under Georgia law, allowing a corporation's
non-lawyer employee to represent it in court amounts to the
unauthorized practice of law. Cf. Eckles v. Atlanta Tech. Grp., Inc., 267
Ga. 801, 805-06 (1997) (laymen serving as unlicensed attorneys for

corporations in courts of record amounts to the unauthorized practice of
law).

In

According to the Georgia Secretary of State, Harris Ventures, Inc.,
d/b/a Staff Zone, is a Georgia corporation.

See attached.' It "has

prepared [its] response and motion for summary judgment Pro Se," doe.
7 at 1, while its director of human resources, Luc Turner, signed both
documents and purports to be Staff Zone's "Pro Se Representative." Id.
at 5. If defendant continues to proceed pro Se, the Court will strike its
answer and motion for summary judgment, see Palazzo, 764 F.2d at 1386
(dismissing corporation's claims because it failed to retain counsel);

United States v. Natalie Jewelry, 2015 WL 150841 at * 4 (S.D. Fla. Jan.
13, 2015) (when a corporation is unrepresented and fails to retain
counsel despite notice and opportunity to do so, its claims or defenses
may be dismissed), and Turner may be exposed to prosecution for the
unauthorized practice of law. See Eckles, 267 Ga. at 804-05.
But Staff Zone is not entirely without recourse. From the date this
Order is served, it has 21 days to retain counsel. If Kelley amends his
complaint in conformance with this Order, Staff Zone must answer
within 14 days of the date Kelley files his amended complaint, or from
Corporate registration with the Secretary of State are matters of public record of
which the Court may take judicial notice. See Univ. Express, Inc. v. SEC, 177 F.
App'x 52, 53 (11th Cir. 2006) ("A district court may take judicial notice of certain
facts. . . . Public records are among the permissible facts that a district court may
consider.").
5

the date Staff Zone retains counsel, whichever is later. If it fails to retain
counsel, however, the undersigned will recommend striking its answer
(doc. 6) and motion for summary judgment. Doe. 7.
To recap: Kelley has 21 days from the date this Order is served to
amend his complaint or else face dismissal of this case. Staff Zone,
meanwhile, must retain counsel within those same 21 days or face a
recommendation that the Court strike its answer and motion for
summary judgment. If Kelley complies and amends and Staff Zone
retains counsel, it then has 14 days from the date Kelley files his
amended complaint, or from the date Staff Zone retains counsel,
whichever is later, to answer. The parties thereafter must comply with
Rule 26(f) and Local Rule 26.1(a) ("The parties shall confer as provided
in Fed. R. Civ. P. 26(f) by the earlier of (i) 21 days after the filing of the
last answer of the defendants named in the original complaint or (ii) 45
days after the first appearance by answer or motion under Fed. R. Civ. P.
12 of a defendant named in the original complaint.").
SO ORDERED, this /, day of August, 2015.

UNITED ATATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

GEORGIA

8/12/2015

£

•

GEORGIA SECRETARY OF STATE

BRIAN P. KEMP

CORPORATIONSDIVISION

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BUSINESS INFORMATION
Business Name: HARRIS VENTURES, INC.
Business Type: Domestic Profit Corporation

Control Number: 0131103
Business Status: Active/Compliance

Business Purpose:
2650 HOLCOMB BRIDGE RD
Principal Office Address: STE 630, ALPHARETTA, GA,
30022

Date of Formation / Registration
7/6/2001
Date:
Last Annual Registration Year: 2015

State of Formation: Georgia

REGISTERED AGENT INFORMATION
Registered Agent Name: Anderson, Matthew
Physical Address:

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2650 Holcomb Bridge Road, Suite 630 Alpharetta, GA 30022, Fulton, Alpharetta, GA, 30022,
USA

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