Western Heritage Insurance Company v. Slopeside Condominium Association, Inc. et al

Filing 43

Notice and ORDER to Pro Se Defendant. Signed by Judge Dana L. Christensen on 11/20/2018. Copy to Folkman. (ASG)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

WESTERN HERITAGE INSURANCE
COMPANY, an Arizona corporation,

NOV 2 o2018
Clerk, U.S Courts
District Of Montana
Missoula Division

CV 17-162-M-DLC

Plaintiff,

v.

NOTICE TO PRO SE DEFENDANT
AND ORDER

SLOPESIDE CONDOMINIUM
ASSOCIATION, INC., a Montana
corporation, MATTHEW FOLKMAN,
individually and d/b/a JARAS
CONSTRUCTION,
Defendants.

Before the Court is Defendant Matthew Folkman's letter of July 24, 2018,
notifying the Court that Folkman does not intend to retain counsel. (Doc. 27.) The
Court deems the letter to be Folkman's answer, as it includes Folkman's
representation that he "den[ies] the many allegations made in this suit." (Doc. 27
at 1.)
Folkman has a statutory right to represent himself pro se. 1 28 U.S.C. § 1654.
If his company, Jaras Construction, is a sole proprietorship, Folkman may also

1

Black's Law Dictionary defines "prose" as "for oneself; on one's own behalf; without a
lawyer." Black's Law Dictionary (10th ed. 2014).

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appear on its behalf. Sharemaster v. SEC, 847 F.3d 1057, 1066 n.4 (9th Cir. 2017).
However, if Jaras Construction is owned to any degree by any individual or entity
other than Folkman, Folkman cannot represent the business entity, and Jaras
Construction must retain counsel if it is to appear in this Court. Rowland v. Cal.

Men's Colony, 506 U.S. 194, 201-02 (1993).
Folkman is strongly encouraged to seek representation immediately. A
federal court "rightly expects a lawyer to represent a litigant. By its supervision of
the bar and through its reliance on the lawyers before it, the court is enabled to
function." C. E. Pope Equity Trust v. United States, 818 F.2d 696, 698 (9th Cir.
1987). The Court and all parties to this litigation--of course, most particularly
Folkman himself-would benefit from Folkman's representation by counsel.
In the event that Folkman proceeds without an attorney, the Court takes this
opportunity to counsel Folkman of the obligations that face him in this Court. All
parties, whether represented or not, are expected to know and to comply with the
relevant law and rules, including court orders, the Federal Rules of Civil
Procedure,2 the Federal Rules ofEvidence,3 and this Court's Local Rules. 4 The
Court cannot and will not offer legal advice to any litigant. Folkman must

2

Available at http://www.law.comell.edu/rules/frcp.
Available at http://www.law.comell.edu/rules/fre.
4
Available at http://www.mtd.uscourts.gov/local-rules.

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2

personally sign and submit pleadings and other documents and participate
personally in all phases of the case. Failure to participate will result in forfeiture of
the right to participate.
Folkman is also advised that he may apply for the appointment of pro bono
counsel, but the Court notes that appointment is extremely rare and that nothing in
the record suggests that the high standard for appointment is met. Moreover, even
if counsel is appointed, the scope of representation may be limited. The Court is
merely advising of the right to apply. The better option, by far, is for Folkman to
retain counsel of his choosing.
Appointment will be considered only on a convincing demonstration by the
Defendant that he or she is financially unable to retain counsel. To apply,
Defendants must complete a detailed financial affidavit5 under penalty of perjury.
The affidavit may be filed ex parte and under seal. 6 It must be completed and
submitted with a motion for appointment of counsel on or before December 6,
2018. The motion must also address the other factors set forth in D. Mont. L.R.
83.6(c).

5

The required form affidavit is Form AO 239. It is available in fillable PDF format at
http://www.uscourts.gov/services-forms/forms
6
When a document is authorized to be filed "ex parte," the filing party need not serve it on other
parties. Documents filed "under seal" are not available to public view. Nothing may be filed ex
parte or under seal unless a rule, statute, or order authorizes it.

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IT IS ORDERED that Folkman's July 24, 2018 letter is deemed his Answer
to the Complaint.
IT IS FURTHER ORDERED that on or before December 6, 2018, Folkman
may move for the appointment of pro bono counsel. He must complete and attach
to his motion the form affidavit described above in Footnote 5. The affidavit must
be submitted under penalty of perjury. Leave to file the affidavit ex parte and
under seal is GRANTED, but the motion itself must be served on opposing
counsel.
IT IS FURTHER ORDERED that counsel for Folkman shall file a Notice of
Appearance on or before December 20, 2018. If Folkman has not located and
retained counsel before that date, Folkman shall file a Notice stating that he will
proceed prose. Whether filed by counsel or by Folkman, the Notice shall state
whether Jaras Construction is a sole proprietorship and explain whether
representation extends to both Folkman and Jaras Construction. Counsel may be
retained after December 20, 2018, but the Court is unlikely to grant a continuance
to allow new counsel to review this matter or to prepare a response to a motion.
IT IS FURTHER ORDERED that Folkman (and, if applicable, Jaras
Construction) shall file responses to the pending motions for summary judgment
(Docs. 28 & 36) on or before January 21, 2018. All other deadlines remain in
effect.
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DATED this

ZO~

day ofNovember, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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