Commission Receivables Fund 1, LLC v. McIlwain et al

Filing 47

ORDER regarding Order 39 . - This matter is before the court sua sponte. The court found good cause existed to allow moving counsel to withdraw. The defendants had consented to such withdrawal. The individual defendant, Tommie E. McIlwain, Sr. is pr oceeding pro se. The corporate defendant, Senior Choice Insurance Group, Inc., had an opportunity to obtain substitute counsel or show cause why entry of default should not be filed. Senior Choice Insurance Group, Inc. failed to respond this court� 39;s order or obtain substitute counsel. Accordingly, the Clerk of Court shall enter default against Senior Choice Insurance Group, Inc. The entry of default may be set aside, upon written motion, if substitute counsel enters a written appearance on behalf of such defendant prior to entry of default judgment. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party at both addresses)(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.

)
)
)
)
)
)
)
)
)
)
)
)

8:11CV131
ORDER

This matter is before the court sua sponte.
On October 11, 2011, Robert W. Mullin, Brittney J. Krause, and the law firm of
Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O. filed for leave to
withdraw as counsel for the defendants (Filing No. 34).

The movants stated the

defendants verbally agreed counsel should withdraw due to the defendants’ noncompliance with a fee agreement. Id. - Mullin Aff. The motion indicates it was served on
the defendants. See Filing No. 34. On October 12, 2011, the court granted the motion,
but allowed the defendant Seniors Choice Insurance Group, Inc. an opportunity until
November 10, 2011, to obtain new counsel. See Filing No. 39. In such order the court
warned the defendant that 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 found good cause existed to allow moving counsel to withdraw. The
defendants had consented to such withdrawal. The individual defendant, Tommie E.
McIlwain, Sr. is proceeding pro se. The corporate defendant, Senior Choice Insurance
Group, Inc., had an opportunity to obtain substitute counsel or show cause why entry of
default should not be filed. Senior Choice Insurance Group, Inc. failed to respond this
court’s order or obtain substitute counsel. Accordingly, the court may enter default against
Senior Choice Insurance Group, Inc. See Fed. R. Civ. P. 55. Upon consideration,
IT IS ORDERED:
1.

The Clerk of Court shall enter default against Senior Choice Insurance

Group, Inc. The entry of default may be set aside, upon written motion, if substitute
counsel enters a written appearance on behalf of such defendant prior to entry of default
judgment.
2.

The Clerk of Court shall mail a copy of this order to the defendant Senior

Choice Insurance Group, Inc. at the following two addresses in the record:
c/o Tommie E. McIlwain, Sr.
2300 Shady Pine Court
Gastonia, North Carolina 28054

c/o Tommie E. McIlwain, Sr.
1716 E. Ozark Ave.
Gastonia, North Carolina 28054

DATED this 14th day of November, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

2