Sorensen v. Fraternal Order of Eagles

Filing 13

ORDER - Travis Thorne Bennington's motion withdraw as counsel for the defendant (Filing No. 8 ) is held in abeyance until October 25, 2011. The defendant shall have until on or before October 25, 2011, to file a response to the motion to withd raw 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. Moving counsel shall immediately serve a copy of this order on the defendant and file a certificate of service for such service. Ordered by Magistrate Judge Thomas D. Thalken. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEBRA SORENSEN,

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Plaintiff,
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vs.
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FRATERNAL ORDER OF THE EAGLES, )
LOCAL CHAPTER 200,
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Defendant.
)

8:11CV258
ORDER

This matter is before the court on the motion of Travis Thorne Bennington to
withdraw as counsel for the defendant (Filing No. 8). The movant states the defendant
asked him to withdraw because the defendant’s insurance carrier intends to provide
counsel. See Filing No. 8. There is no indication on the motion that moving counsel
served his client with the pending motion. Id. The court notes no substitute counsel has
yet appeared in this matter for the defendant.
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 defendant shall have an opportunity to respond to the
motion to withdraw. If the defendant fails to respond or obtains 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. See Fed. R. Civ. P. 55. However, counsel shall not be given leave to withdraw
as attorney for the defendant until substitute counsel has entered an appearance or other
order of the court. Accordingly,

IT IS ORDERED:
1.

Travis Thorne Bennington’s motion withdraw as counsel for the defendant

(Filing No. 8) is held in abeyance until October 25, 2011.
2.

The defendant shall have until on or before October 25, 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.

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

and file a certificate of service for such service.
DATED this 27th day of September, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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