IHOP IP, LLC et al v. International House of Prayer et al

Filing 15

SUGGESTIONS in opposition re 14 MOTION for extension of time to file answer re 1 Complaint, filed by Elizabeth A. Tassi on behalf of Plaintiffs IHOP IP, LLC, International House of Pancakes, LLC. Reply suggestions due by 11/10/2011 unless otherwise directed by the court (Related document(s) 14 ) (Tassi, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
IHOP IP, LLC et al.,

Plaintiffs,
vs.
INTERNATIONAL HOUSE OF PRAYER
et al.,
Defendants.

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Case No.: 4:11-cv-00548-JTM

OPPOSITION TO DEFENDANT EAST BAY'S MOTION FOR
AN EXTENSION OF TIME TO FILE AN ANSWER
Plaintiffs IHOP IP, LLC and International House of Pancakes, LLC ("IHOP") request
that the Court deny defendant International House of Prayer East Bay's ("East Bay") motion
for an extension of time to file an answer because the motion was not submitted through an
attorney as required by the law and was filed out of time.
I.

Background Facts
IHOP and East Bay were engaged in voluntary settlement discussions from

November 2010 until May 2011. During these negotiations, East Bay was represented by
Keith Grady and his colleagues at Polsinelli Shughart PC. When those negotiations fell
apart, IHOP filed a Complaint [Doc. 1] on May 27, 2011 and a First Amended Complaint
[Doc. 3] on June 14, 2011. Mr. Grady accepted service of the First Amended Complaint on
behalf of all the defendants and executed a waiver, which was filed with the Court on June
22, 2011 [Doc. 4].
IHOP was subsequently informed that Mr. Grady no longer represented East Bay and
mistakenly accepted service on its behalf. Without waiving any of its rights or conceding

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any mistake in service, counsel for IHOP contacted Mr. Stilwell in July and sent him an
additional waiver of service request and a copy of the First Amended Complaint pursuant to
Fed. R. Civ. P. 4(d). Mr. Stilwell responded on August 10, 2011 with an offer to settle.
Since then, IHOP and East Bay have engaged in settlement negotiations and exchanged
several draft agreements. During this time, East Bay failed to return the second waiver of
service sent in July. Although it is IHOP's position that service was effected on East Bay
when the first waiver was filed with the Court in June, out of an abundance of caution and in
the spirit of cooperation, IHOP served East Bay with process on September 23, 2011
[Return of Service, Doc. 12]. At the time of service, IHOP explained to East Bay that its
time to prepare and file an answer had begun to run. On October 12, 2011, IHOP again
reminded East Bay during settlement discussions that it needed to answer the First Amended
Complaint. East Bay failed to file an answer by the October 14, 2011 deadline.
II.

As a 501(c)(3) Nonprofit Entity, East Bay Must Be Represented by an Attorney
to Appear Before the Court.
It is a well settled rule that a business entity can only appear in court through an attorney

and not through a non-attorney corporate officer appearing pro se. Rowland v. California Men's
Colony, 506 U.S. 194, 201-02 (1993) ("It has been the law for the better part of two centuries,
for example, that a corporation may appear in the federal courts only through licensed counsel.");
Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) ("[T]he law
does not allow a corporation to proceed pro se."). The Motion for an Extension of Time to File
an Answer [Doc. 14] states that East Bay is "seeking counsel on this matter." (Doc No. 14, filed
Oct. 21, 2011). The motion does not indicate that Jim Stilwell, who is the only individual that
has signed the letter request, is an attorney licensed to appear before the Court. Accordingly, the
Court should deny the motion for East Bay because it is a nonprofit entity that is not represented

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by counsel.
III.

East Bay Failed to Timely File an Answer or a Motion for An Extension of Time
Despite Knowing About Its Obligation Since July.
East Bay has known about its obligation to file an answer to the First Amended

Complaint for over three months. Although East Bay should have filed an answer after
service was originally waived on its behalf, in light of the settlement talks, IHOP was
amenable to an answer date of October 14, 2011, based on the second service of process on
September 23, 2011. Fed. R. Civ. P. 12(a). Any request for an extension of time to file an
answer was also due by that date. Fed. R. Civ. P. 6(b). East Bay failed to file an answer or
a request for an extension of time before the deadline. It now asks the Court for another 30
days to find counsel and answer after it refused to waive service and ignored IHOP's
warnings about the upcoming deadline, without making any claim of excusable neglect as
required by Fed. R. Civ. P. 6(b). East Bay's dilatory tactics should not be rewarded.
Because East Bay is not represented by counsel as the law requires and because it has
made no showing of excusable neglect for its untimely request, IHOP respectfully asks the
Court to deny East Bay's motion for yet another 30 days to respond to the First Amended
Complaint.

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Respectfully submitted,
/s/Elizabeth A. Tassi
Mark D. Hinderks (MO Bar No. 58124)
Mark M. Iba (MO Bar No. 45452)
Elizabeth A. Tassi (MO Bar No. 59621)
STINSON MORRISON HECKER LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106
[phone] (telephone)
[phone] (facsimile)
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
INTERNATIONAL HOUSE OF PANCAKES,
LLC and IHOP IP, LLC
CERTIFICATE OF SERVICE
I hereby certify that on October 24, 2011, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, which sent notification of such filing to the
following:
Keith J. Grady
John M. Challis
POLSINELLI SHUGHART PC
100 S. Fourth Street, Suite 1000
St. Louis, MO 63102
[e-mail]
[e-mail]
Lauren Tucker McCubbin
POLSINELLI SHUGART PC
120 West 12th Street, Suite 1800
Kansas City, MO 64105
[e-mail]
ATTORNEYS FOR DEFENDANTS INTERNATIONAL HOUSE OF PRAYER,
FRIENDS OF THE BRIDEGROOM, INC., SHILOH MINISTRIES, INC., AND MIKE
BICKLE

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and I hereby certify that I have mailed by United States Postal Service the document to
the following non CM/ECF participant:
International House of Prayer East Bay
c/o Jim Stilwell, Director
471 San Diego Place
San Ramon, California 94583

/s/Elizabeth A. Tassi
Attorney for Plaintiffs

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