Polston v. Millenium Outdoors, LLC et al
Filing
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OPINION & ORDER: 1. The parties SHALL each submit briefs of points and authorities discussing the issue of whether the original removal action was valid. As part of the submissions, the parties are directed to specifically address the applicabili ty of the law set forth in the following case: City of Cleveland v. Deutsche Bank Trust Co., 571 F. Supp. 2d 807 (N.D. Ohio 2008). 2. The parties SHALL each submit a brief not to exceed six (6) pages addressing the singular issue specified above. The parties are not to file response and/or reply briefs. 3. The briefs SHALL be submitted no later than fourteen (14) days upon the entry of this Order. Signed by Judge Karen K. Caldwell on 02/08/2017.(KJA)cc: COR, mailed paper copy of Order to Outdoor Distributors, LLC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
DARREN POLSTON,
CIVIL ACTION NO. 6:16-CV-16-KKC
Plaintiff,
V.
OPINION AND ORDER
MILLENNIUM OUTDOORS, LLC,
OUTDOOR DISTRIBUTORS, LLC,
and HUNTING SOLUTIONS, INC.,
(d/b/a Hunting Solutions USA),
Defendants.
This matter is before the Court on plaintiff Polston’s motion for an Entry of
Default (DE 22) against Outdoor Distributors, LLC (“Outdoor”). He claims that he
properly served Outdoor on January 15, 2016 and that Outdoor did not file an answer
or otherwise respond within the time limits of Rule 12(a)(1)(A) of the Federal Rules
of Civil Procedure. (DE 22-1; DE 22-2). Jimmy Edwards, on behalf of Outdoor, has
filed two pro se letters in response. Edwards states that he did not receive notice of
the complaint until October 2016 and argues that, in any event, Outdoor is not liable
for Polston’s injuries. The Clerk of Court has construed Mr. Edward’s letters as
Outdoor’s Objections to the Plaintiff’s Motion for Entry of Default (DE 23), Outdoor’s
Motion for Extension of Time to File an Answer (DE 24), and Outdoor’s Motion to
Dismiss (DE 28). Mr. Edwards has also submitted on behalf of Outdoor a pro se
answer. (DE 31).
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Upon review of these motions, a previously undiscovered issue has become
apparent. One of first principles. Outdoor is not represented by counsel. This renders
any action on its behalf ineffectual because a corporate entity “cannot appear in
federal court except through an attorney.” See Doherty v. Am. Motors Corp., 728 F.2d
334, 340 (6th Cir. 1984); Van Lokeren v. City of Grosse Pointe Park, Mich., No. 1314291, 2014 WL 988965, at *7 (E.D. Mich. Mar. 13, 2014) (“[A] limited liability
company also may appear in federal court only through a licensed attorney.”)
(internal citations omitted). Thus, any attempt by Mr. Edwards to represent Outdoor
is futile.
This finding leads to another issue. If Outdoor has not retained counsel and
never consented to the removal through an attorney, was the original removal of this
action valid? The Court is inclined to answer that it was not and order that this action
be remanded to the Circuit Court of Pulaski County, Kentucky. As it stands, it
appears that Millennium’s removal was predicated on ineffectual consent and that
the rule of unanimity was never satisfied. See Harper v. AutoAlliance Int’l, Inc., 392
F.3d 195 (6th Cir. 2004).
Before remanding this action, IT IS HEREBY ORDERED that:
1. The parties SHALL each submit briefs of points and authorities discussing the
issue of whether the original removal action was valid. As part of the
submissions, the parties are directed to specifically address the applicability of
the law set forth in the following case: City of Cleveland v. Deutsche Bank Trust
Co., 571 F. Supp. 2d 807 (N.D. Ohio 2008).
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2. The parties SHALL each submit a brief not to exceed six (6) pages addressing
the singular issue specified above. The parties are not to file response and/or
reply briefs.
3. The briefs SHALL be submitted no later than fourteen (14) days upon the
entry of this Order.
IT IS SO ORDERED.
Dated February 8, 2017.
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