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

Filing 34

ORDER granting 30 Motion to Withdraw as Attorney. 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 granted. 2. Since the defendants CYC Construction, Inc, Remcon General Contractors, Inc., Remmereid Holdings, Inc., and Kimcon, Inc. failed to have substitute counsel enter an appearance, the Clerk of Court shall strike the answers of the defendants CYC Construction, Inc, Remcon General Contractors, Inc., Remmereid Holdings, Inc., and Kimcon, Inc. and enter default against CYC Construction, Inc, Remcon General Contractors, Inc., Remmereid Holdings, Inc., and Kimcon, Inc. The entry of default may be set aside, upon wr itten motion, if substitute counsel enters a written appearance on behalf of such defendants prior to entry of default judgment. 3. Kimberly Remmereid and Todd Remmereid are hereby considered proceeding pro se and counsel for the plaintiff may communicate with these defendants directly regarding this case. 4. Withdrawing counsel shall immediately serve a copy of this order on the 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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Plaintiffs,
)
)
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 allowed the
defendants an opportunity to respond to the motion or obtain substitute counsel. 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).
Under the circumstances, the court concludes good cause exists for allowing 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. See NEGenR 1.3(f). These defendants had an opportunity to respond to the
motion to withdraw or obtain substitute counsel, but failed to do so. Accordingly, the court
will grant the motion to withdraw. Failure to have substitute counsel enter an appearance
must result in an order striking the answer as to the defendant corporations. See Fed. R.
Civ. P. 55. Therefore, default is appropriate based on the defendant corporations’ failure
to obtain counsel. Upon consideration,

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 granted.
2.

Since the defendants CYC Construction, Inc, Remcon General Contractors,

Inc., Remmereid Holdings, Inc., and Kimcon, Inc. failed to have substitute counsel enter
an appearance, the Clerk of Court shall strike the answers of the defendants CYC
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Construction, Inc, Remcon General Contractors, Inc., Remmereid Holdings, Inc., and
Kimcon, Inc. and enter default against CYC Construction, Inc, Remcon General
Contractors, Inc., Remmereid Holdings, Inc., and Kimcon, Inc. The entry of default may
be set aside, upon written motion, if substitute counsel enters a written appearance on
behalf of such defendants prior to entry of default judgment.
3.

Kimberly Remmereid and Todd Remmereid are hereby considered

proceeding pro se and counsel for the plaintiff may communicate with these defendants
directly regarding this case.
4.

Withdrawing counsel shall immediately serve a copy of this order on the

defendants and file a certificate of service.
DATED this 19th day of September, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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