American Contractors Indemnity Company et al v. CYC Construction et al

Filing 32

ORDER - 1. Donald L. Swanson, Brian J. Koenig, Kristin M.V. Farwell, and the law firm Koley Jessen P.C., L.L.O.'s motion to withdraw as counsel for the defendants (Filing No. 30 ) is held in abeyance. 2. The defendants CYC Construction, Inc, Re mcon General Contractors, Inc., Remmereid Holdings, Inc., and Kimcon, Inc. shall have until on or before September 16, 2011, to file a response to the motion to withdraw with the Clerk of Court. If no response is received or if substitute counsel has entered an appearance by that date, the motion to withdraw will be granted. 3. The defendants Kimberly Remmereid and Todd Remmereid shall have to on or before September 16, 2011, to file a response to the motion to withdraw with the Clerk of Court. If no response is received or if substitute counsel has entered an appearance by that date, the motion to withdraw will be granted. If the motion to withdraw is granted and substitute counsel has not entered an appearance, Kimberly Remmereid and Todd Remmereid will be considered proceeding pro se. 4. Moving counsel shall immediately serve a copy of this order on all defendants and file a certificate of service. Ordered by Magistrate Judge Thomas D. Thalken. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMERICAN CONTRACTORS
INDEMNITY COMPANY and
U.S. SPECIALTY INSURANCE
COMPANY,

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)
)
)
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Plaintiffs,
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vs.
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CYC CONSTRUCTION, INC., REMCON )
GENERAL CONTRACTORS, INC.,
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REMMEREID HOLDINGS, INC.,
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KIMCON, INC., KIMBERLY REMMEREID, )
and TODD REMMEREID,
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Defendants.
)

8:10CV461
ORDER

This matter is before the court on the motion of Donald L. Swanson, Brian J. Koenig,
Kristin M.V. Farwell, and the law firm Koley Jessen P.C., L.L.O., to withdraw as counsel for
the defendants CYC Construction, Inc, Remcon General Contractors, Inc., Remmereid
Holdings, Inc., Kimcon, Inc., Kimberly Remmereid, and Todd Remmereid (Filing No. 30).
The movants state the “[d]efendants have communicated to Koley Jessen that they do not
wish for Koley Jessen to continue to representing them in this action.” See Filing No. 30.
Moving counsel served their clients with the pending motion. Id. The court notes no
substitute counsel has yet appeared in this matter.
Parties who are not natural persons may not appear pro se. Rowland v. California
Men’s Colony, 506 U.S. 194, 203 (1993). Moreover, courts “have uniformly held that 28
U.S.C. § 1654, providing that ‘parties may plead and conduct their own cases personally
or by counsel,’ does not allow corporations, partnerships, or associations to appear in
federal court otherwise than through a licensed attorney.” Id. at 202. “Corporations and
partnerships, both of which are fictional legal persons, obviously cannot appear for
themselves personally. With regard to these two types of business associations, the long
standing and consistent court interpretation of [28 U.S.C. § 1654] is that they must be
represented by licensed counsel.” Turner v. American Bar Ass’n, 407 F. Supp. 451, 476

(E.D Tex 1975); see Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556 (10th Cir. 2001)
(“As a general matter, a corporation or other business entity can only appear in court
through an attorney and not through a non-attorney corporate officer appearing pro se”);
Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991); see also DCR
Fund I, LLC v. TS Family Ltd. Partnership, 261 Fed. Appx. 139 (10th Cir. 2008); First
Amendment Foundation v. Village of Brookfield, 575 F. Supp. 1207, 1207 (N.D. Ill.
1983) (partnership must be represented by attorney admitted to practice).

In fact,

according to the Eighth Circuit, a corporation or other business entity is technically in
default as of the date its counsel is permitted to withdraw from the case without substitute
counsel appearing. Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th
Cir. 1996).
As an initial matter, the defendants shall have an opportunity to respond to the
motion to withdraw. If the defendants fail to respond or obtain substitute counsel, the court
will grant the motion to withdraw. In the event the motion to withdraw is granted, failure to
have substitute counsel enter an appearance may result in an order striking the answer
with respect to CYC Construction, Inc, Remcon General Contractors, Inc., Remmereid
Holdings, Inc., and Kimcon, Inc. See Fed. R. Civ. P. 55. However, counsel shall not be
given leave to withdraw as attorneys for the defendants until substitute counsel has
entered an appearance or other order of the court. Accordingly,

IT IS ORDERED:
1.

Donald L. Swanson, Brian J. Koenig, Kristin M.V. Farwell, and the law firm

Koley Jessen P.C., L.L.O.’s motion to withdraw as counsel for the defendants (Filing No.
30) is held in abeyance.
2.

The defendants CYC Construction, Inc, Remcon General Contractors, Inc.,

Remmereid Holdings, Inc., and Kimcon, Inc. shall have until on or before September 16,
2011, to file a response to the motion to withdraw with the Clerk of Court. If no response
is received or if substitute counsel has entered an appearance by that date, the motion to
withdraw will be granted.

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3.

The defendants Kimberly Remmereid and Todd Remmereid shall have to on

or before September 16, 2011, to file a response to the motion to withdraw with the Clerk
of Court. If no response is received or if substitute counsel has entered an appearance by
that date, the motion to withdraw will be granted. If the motion to withdraw is granted and
substitute counsel has not entered an appearance, Kimberly Remmereid and Todd
Remmereid will be considered proceeding pro se.
4.

Moving counsel shall immediately serve a copy of this order on all defendants

and file a certificate of service.
DATED this 17th day of August, 2011.
BY THE COURT:
s/Thomas D. Thalken
United States Magistrate Judge

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