United States et al v. Travelers Casualty and Surety Company of America et al

Filing 106

ORDER granting 94 Motion to Compel; denying demand for sanctions. Signed by Magistrate Judge Michael T. Parker on May 24, 2013. (KM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
UNITED STATES, for the use and benefit
of Mid State Construction Company, Inc., ET AL.
VS.

PLAINTIFFS

CIVIL ACTION NO.: 5:11-CV-169-DCB-MTP

TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, ET AL.

DEFENDANTS

ORDER
THIS MATTER came before the court on the Motion to Compel [61] filed by Plaintiff
Mid State Construction Company, Inc. (“Mid State”) against Defendants U.S. Coating
Specialties & Supplies, LLC (“U.S. Coating”) and Earl Washington (“Washington”)
(collectively “Defendants”). Having considered the submissions of the parties, the court finds
that the motion should be granted. The demand for sanctions is denied at this time.
In its motion, Mid State seeks an order requiring U.S. Coating and Washington to
provide complete answers and responsive documents to discovery propounded on March 13,
2013. Defendants failed to respond to the discovery within the time allotted under the Federal
Rules of Civil Procedure and failed to respond to Plaintiff’s good faith letter dated April 16,
2013. After Plaintiff provided Defendants’ counsel with a copy of the proposed motion to
compel on April 25, 2013, Defendants requested an extension through April 26, 2013, to respond
to the discovery. On April 26, 2013, Defendants requested an extension until May 2, 2013, to
respond. On May 2, 2013, Defendants’ counsel, Herb Irvin, contacted Mid State’s counsel to
inform them that he was not counsel of record for US Coating and Washington, but that Earl
Washington would be contacting Mid State’s counsel to arrange for document pick-up. See Ex.
G to Motion [94-7].

Mid State claims that the documents and responses were “completely inadequate.”
Defendants only produced Contractor Quality Control Reports and informed Mid State that the
other responsive documents would be produced once they were “located and compiled.” See Ex.
H to Motion [94-8]. After another good faith letter to Defendants, Defendants requested yet
another extension. See Exs. I and J to Motion [94].
Defendants did not file a response to the Motion to Compel [94]. Instead, Earl
Washington filed a letter [96] dated May 6, 2013, sent to Mid State’s counsel on behalf of
himself and U.S. Coating, stating that they were in the process of locating and compiling
responsive documents.
As an initial matter, Earl Washington, who is not a licensed Mississippi attorney, may not
represent U.S. Coating Specialities & Supplies, LLC, and may not file pleadings on its behalf.
See Sw. Exp. Co. v. I. C. C., 670 F.2d 53, 55–56 (5th Cir. 1982) (“Corporations and partnerships,
by their very nature, are unable to represent themselves and the consistent interpretation of [28
U.S.C. §] 1654 is that the only proper representative of a corporation or a partnership is a
licensed attorney, not an unlicensed layman regardless of how close his association with the
partnership or corporation.”). Herb Irvin has represented in a letter to Mid State that “While [he]
is listed as an attorney for US Coating, [his] role is limited to providing administrative assistance
to the company; [and] [he] is not its litigation counsel.” See Ex. G to Motion [94-7]. However,
Mr. Irvin has filed an Answer [49] and other pleadings on behalf of U.S. Coating and Mr.
Washington and is listed as counsel of record for both Defendants on the court docket. Unless
Mr. Irvin files a motion to withdraw and such motion is granted by the court, he remains counsel
of record.
The court finds that Mid State’s Motion to Compel [94] against Defendants U.S. Coating
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and Washington should be granted as unopposed.
IT IS, THEREFORE, ORDERED:
1.

That Mid State’s Motion [94] to Compel is granted. However, Mid State’s
demand for sanctions is denied at this time.

2.

Defendants U.S. Coating and Washington shall produce the requested documents
and information on or before June 3, 2013, and shall file a notice of service of
same.

SO ORDERED this the 24th day of May, 2013.
s/ Michael T. Parker
United States Magistrate Judge

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