U.S. Equal Employment Opportunity Commission v. Danny's Restaurant, LLC et al

Filing 124

ORDER denying 97 Motion to Dismiss; striking 123 Motion to Compel; striking 123 Motion for Extension of Time to Complete Discovery and requiring Defendant to obtain counsel. Signed by District Judge Henry T. Wingate on 10/5/2018 (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
v.

PLAINTIFF
Civil Action No. 3:16-CV-00769-HTW-LRA

DANNY’S RESTAURANT, LLC AND
DANNY’S OF JACKSON, LLC F/K/A
BABY O’S RESTAURANT, INC. D/B/A
DANNY’S DOWNTOWN CABARET

DEFENDANTS

______________________________________________________________________________
ORDER

Before the court are two motions filed by the Defendant, Danny’s of Jackson, LLC: 1) a
motion to dismiss pursuant to Rule 12(b)(6) [doc. no. 97]; and 2) a “motion to compel discovery
and for a 30-day enlargement of time to depose complainants” [doc. no.123].
Defendant’s Motion to Dismiss for Failure to State a Claim was filed by Defendant’s
former counsel, H. Byron Carter III. The basis of the motion is that Plaintiff failed to
specifically plead a claim for successor liability in its Complaint. This court having reviewed the
motion, the record and applicable authorities, finds that the motion is not well taken. First the
motion is untimely. The deadline for the filing of dispositive motions is well past and Defendant
did not seek leave of this court to allow filing; nor has Defendant shown good cause for the
delay. Secondly, this court, by order of September 5, 2018, granted leave to Plaintiff EEOC to
amend its Complaint to include an allegation of “successor liability,” which it sought leave to do
out of an abundance of caution. [doc. no. 115]. The issue of successor liability had been raised
in Plaintiff’s motions for summary judgment and briefed by both sides prior to the amendment of
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the Complaint. Therefore, this issue already is resolved and, thus, this the motion is denied.
The second motion [doc. no. 123] is purportedly filed pro se by Danny McGee Owens,
the president of Danny’s of Jackson LLC. Danny McGee Owens, however, is not the Defendant
in this lawsuit. The only Defendants are Danny’s Restaurant LLC and Danny’s of Jackson LLC,
both limited liability companies. These entities cannot proceed pro se. It is well-settled that a
corporation may not appear in federal court unless represented by an attorney. Memon v. Allied
Domecq QSR, 385 F.3d 871, 873 (5th Cir. 2004) (per curiam) (citing Rowland v. California
Men’s Colony, 506 U.S. 194, 202 (1993); Lavine v. Bank of America, N.A. 672 Fed.Appx.453
(5th Cir. Jan. 3, 2017)(affirming district court denying plaintiff leave of court to proceed pro se
on behalf of company, citing Memon). When a corporation declines to hire counsel to represent
it, the court may dismiss its claims if it is a plaintiff, or strike its defenses if it is a defendant.
Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984) (per
curiam). A limited liability company is subject to the same requirement.
The court granted Defendants’ attorneys leave to withdraw by Order dated September 5,
2018 [doc. no. 116]. That Order mistakenly recited that Defendant was granted twenty days to
notify the court of the identity of new counsel or to notify the Court of the intent to proceed pro
se.
It will be necessary for the corporate defendant, Danny’s of Jackson LLC, to obtain a
licensed attorney to represent it in this matter. Danny’s of Jackson is granted until October 22,
2018, to cause counsel to make an appearance on its behalf in this case. This Order supersedes
that portion of the prior order that gave Defendant an alternative directive to notify the court if it
would represent itself.
For the reasons stated, the motion to dismiss [doc. no. 97] filed by Danny’s of Jackson

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LLC by and through its attorney, must be denied. The “motion to compel discovery and for a
30-day enlargement of time to depose complainants” [doc. no. 123] must be stricken by this
court and held for naught, as it was filed by Danny McGee Owens, a non-attorney, on behalf of a
corporate Defendant. Likewise, the “Notice of Intent to Proceed Pro Se” [doc. no.122] must also
be stricken and held for naught as it was filed by a non-attorney on behalf of a corporate entity.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that [doc. no.97] is denied; [doc
no. 123] is stricken and [doc. no. 122] is stricken. Defendant Danny’s of Jackson LLC, shall
obtain licensed counsel to represent it and make an appearance of record on or before October
22, 2018
SO ORDERED, this, the 5th day of October, 2018.
s/ HENRY T. WINGATE_________________
UNITED STATES DISTRICT JUDGE

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