Trust v. State Farm Property & Casualty Insurance Company

Filing 12

ORDERED that the Court Denies Bennett's request re 11 RESPONSE. Ms. Hubbard is therefore Ordered to show cause within fourteen days why she should not be sanctioned for permitting this misuse of her account. The Clerk is directed to serve both Mr. Bennett and Ms. Hubbard with a copy of this Order. Signed by Magistrate Judge G. R. Smith on 2/19/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
JAMES ENNIS TRUST,
Plaintiff,

Case No. CV614-006

V.

STATE FARM PROPERTY &
CASUALTY INSURANCE COMPANY,
Defendant.

ORDER
In this removed case, plaintiff James Ennis Trust claims that
defendant State Farm Property & Casualty Insurance Company ("State
Farm") failed to fully cover storm damage to a building held by the trust
and insured by State Farm. (Doc. 1-1 (complaint).) After the case was
removed to this Court, plaintiff filed a pro se motion to stay the case so
that it could find an attorney to represent it in federal court, as its
attorney in the state proceedings, Donald Sheppard, is not a member of
this Court's bar. (Doc. 9. at 1.) The Court granted the stay. But
plaintiff, through one of its trustees, Jimmy Bennett, now states that
because of financial difficulties it has been unable to locate an attorney

who would take the case, so it wants to proceed pro Se. (Doc. 11.)
Essentially, Bennett wants to represent the trust. Because he is not an
attorney, he cannot do so. As another district court explained,
28 U.S.C. § 1654 provides parties the right to represent themselves
personally or by counsel. 28 U.S.C. § 1654 (2006) ("In all courts of
the United States the parties may plead and conduct their own
cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes
therein."). However, the right of a non-attorney to appear in
propria persona is a personal right. G.E. Pope Equity Trust v.
United States, 818 F. 2d 696, 697 (9th cir. 1987) (citing McShane v.
United States, 366 F. 2d 286 ) 288 (9th Cir. 1966)). In G.E. Pope, a
non-attorney trustee sought to represent the claims of the
beneficiaries of a trust. The court held that the trustee's actions
"cannot be viewed as a 'party' conducting his 'own case personally'
within the meaning of Section 1654." Id. at 697-98 (citing 28 U.S.C.
§ 1654). The Eighth Circuit has similarly held that a non-lawyer
trustee has no right to represent a trust pro se in federal court.
Knoefler v. United Bank[], 20 F. 3d 347 (8th Cir. 1994)....
Although the Eleventh Circuit has not yet interpreted § 1654
with respect to trusts, it is a well-settled principle of law that
neither a corporation nor a partnership can appear pro Se; rather,
they must be represented by counsel. 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."). This Court finds no reason to make a
distinction between a trust and a corporation for purposes of the
right of self-representation under § 1654.

United States v. Lena, 2007 WL 4578336 at *1 (S.D. Fla. Dec. 27, 2007).
Further, while the Georgia courts have apparently failed to address the
2

precise issue, there is some reason to believe that allowing one nonlawyer trustee to represent the interests of a trust would amount to the
unauthorized practice of law.

Cf. Eckles v. Atlanta Technology Group,

Inc., 267 Ga. 801, 805-06 (Ga. 1997) (allowing laymen to serve as
unlicensed attorneys for corporations in courts of record amounts to. the
unauthorized practice of law). Consequently, Bennett's request (doc. 11)
is DENIED.
The Court is aware that its denial of Bennett's request could affect
plaintiff's ability to pursue its claims. Perhaps things are not so dire.
Evelyn Stembridge Hubbard, an attorney admitted to practice law in this
Court, has apparently permitted plaintiff to use her CM/ECF account to
e-file documents, though she has never officially entered an appearance
in the case. Whether or not Hubbard ever intended to represent
plaintiff, allowing Mr. Bennett to file a document using her electronic
filing information is a violation of this Court's Administrative
Procedures for Filing, Signing, and Verifying Pleadings and Papers by
Electronic Means ("Administrative Procedures").
Procedures,

available at

http :11

See Administrative

www.gasd.uscourts.gov/pdf/Ecf

Procedures.pdf. The Administrative Procedures state that "[n]o attorney

3

shall knowingly permit or cause to permit his or her login to be utilized
by anyone other than authorized persons within his or her firm." Id. at
I(B)(1). Additionally, "the attorney bears the ultimate responsibility for
all documents filed with his or her login." Id. at I(B)(2); New Holland

Tire, Inc. v. Dorsey Roadside Rescue, Inc., 2010 WL 3276913 at *2 (S.D.
Ga. Aug. 17, 2010).
Ms. Hubbard is therefore ORDERED to show cause within 14 days
why she should not be sanctioned for permitting this misuse of her
account. Of course, if it was counsel's intention to enter an appearance
on plaintiffs behalf, and she makes that clear to the Clerk, then there
was no misuse of her login and no further show-cause response from her
shall be required. The Clerk is DIRECTED to serve both Mr. Bennett
and Ms. Hubbard with a copy of this Order.
SO ORDERED this /9day of February, 2015.

UNITEDkST,kTES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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