Commission Receivables Fund 1, LLC v. McIlwain et al

Filing 39

ORDER - 1. Robert W. Mullin, Brittney J. Krause, and the law firm of Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O.'s motion for leave to withdraw as counsel for the defendants (Filing No. 34 ) is granted. 2. Senior Choice Insur ance Group, Inc. shall have until on or before November 10, 2011, to obtain substitute counsel or show cause why entry of default should not be filed. If no response is received or if substitute counsel has entered an appearance by that date, the cou rt may enter an order striking Senior Choice Insurance Group, Inc.'s answer and directing the Clerk of Court to enter default. 3. Tommie E. McIlwain, Sr. will now be considered proceeding pro se. Counsel for the plaintiff may communicate with Mr . McIlwain directly regarding this case. 4. The plaintiff's "Resistance" (Filing No. 36 ) is overruled as stated herein. 5. Moving counsel shall immediately serve a copy of this order on the defendants and file a certificate of service for such service. Ordered by Magistrate Judge Thomas D. Thalken. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COMMISSION RECEIVABLES
FUND 1, LLC,
Plaintiff,
vs.
TOMMIE E. McILWAIN, SR. and
SENIORS CHOICE INSURANCE
GROUP INC.,
Defendants.

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8:11CV131
ORDER

This matter is before the court on the motion of Robert W. Mullin, Brittney J. Krause,
and the law firm of Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O. for
leave to withdraw as counsel for the defendants (Filing No. 34) and the plaintiff’s
“Resistance” (Filing No. 36). The court held a telephone conference with counsel for the
parties on October 12, 2011.
In addition to withdrawal, the movants also seek to stay proceedings, including a
previously noticed deposition, to allow time for new counsel to appear. See Filing No. 34.
The movants filed an index of evidence in support of their motion. See Filing No. 35. The
movants state the defendants verbally agreed counsel should withdraw due to the
defendants’ non-compliance with a fee agreement. Id. - Mullin Aff. The motion indicates
it was served on the defendants. See Filing No. 34. The court notes no substitute counsel
has yet appeared in this matter for the defendants. The plaintiff resists withdrawal of
counsel for the primary reason that the plaintiff seeks to complete the previously noticed
depositions.
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).
The court finds good cause exists to allow moving counsel to withdraw. The
defendants have consented to such withdrawal. Accordingly, the individual defendant,
Tommie E. McIlwain, Sr. will now be considered proceeding pro se. Counsel for the
plaintiff may communicate with Mr. McIlwain directly regarding this case. Under the
circumstances, the corporate defendant, Senior Choice Insurance Group, Inc., shall have
an opportunity to obtain substitute counsel or show cause why entry of default should not
be filed. If Senior Choice Insurance Group, Inc. fails to respond to this order or obtain
substitute counsel, the court may enter an order striking it’s answer, which will result in
entry of default. See Fed. R. Civ. P. 55.
The defendants have failed to show good cause exists to stay proceedings to allow
time for new counsel to appear. The parties may proceed under the current progression
order and with any previously noticed depositions. Upon consideration,

IT IS ORDERED:
1.

Robert W. Mullin, Brittney J. Krause, and the law firm of Lieben, Whitted,

Houghton, Slowiaczek & Cavanagh, P.C., L.L.O.’s motion for leave to withdraw as counsel
for the defendants (Filing No. 34) is granted.

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2.

Senior Choice Insurance Group, Inc. shall have until on or before November

10, 2011, to obtain substitute counsel or show cause why entry of default should not be
filed. If no response is received or if substitute counsel has entered an appearance by that
date, the court may enter an order striking Senior Choice Insurance Group, Inc.’s answer
and directing the Clerk of Court to enter default.
3.

Tommie E. McIlwain, Sr. will now be considered proceeding pro se. Counsel

for the plaintiff may communicate with Mr. McIlwain directly regarding this case.
4.

The plaintiff’s “Resistance” (Filing No. 36) is overruled as stated herein.

5.

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

defendants and file a certificate of service for such service.
DATED this 12th day of October, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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