Intra-State America Transportation Corporation v. State of New York Workers Compensation Board

Filing 15

-CLERK TO FOLLOW UP-ORDER dismissing plaintiff's claims in their entirety, without prejudice; denying as moot defendant's 4 Motion to Dismiss and denying plaintiff's 12 Motion to Appoint Counsel. Signed by Hon. David G. Larimer on 4/24/13. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
INTRA-STATE AMERICA TRANSPORTATION
CORPORATION,

Plaintiff,
DECISION AND ORDER
12-CV-6540L
v.
STATE OF NEW YORK WORKERS
COMPENSATION BOARD,

Defendant.
________________________________________________
Nicholas Passero (“Passero”), the president, sole officer and sole shareholder of plaintiff Intra
State America Corporation (the “Corporation”), filed this pro se action on the Corporation’s behalf
against the New York State Workers’ Compensation Board (“defendant”) on October 5, 2012. (Dkt.
#1). On October 25, 2012, defendant moved to dismiss the action pursuant to Federal Rules of Civil
Procedure 12(b)(6), arguing, inter alia, that the Corporation had failed to appear by counsel (Dkt.
#4). Plaintiff, a non-lawyer, thereafter moved to represent the Corporation in lieu of counsel (Dkt.
#5). The Court denied that motion, ordered plaintiff to appear by counsel within thirty days, and
granted a subsequent request by plaintiff to extend its time to appear by counsel for an additional
sixty days, until March 1, 2013 (Dkt. #9, #11). Passero contends that both he and the Corporation
lack sufficient funds to retain counsel, and now requests that the Court appoint counsel for the
Corporation pursuant to 28 U.S.C. §1915. (Dkt. #12).
It is well settled that corporations cannot proceed under 28 U.S.C. §1915, and plaintiff has
presented no alternative basis upon which the Court could appoint counsel for a corporation. See

Rowland v. California Men’s Colony, 506 U.S. 194, 199-212 (1993); Hennings v. Buka N.Y. Corp.,
2012 U.S. Dist. LEXIS 16462 at *1 (E.D.N.Y. 2012)
Plaintiff has repeatedly failed to secure counsel as previously ordered, despite the Court’s
warning that doing so would risk a default judgment dismissing its claims in their entirety. “The
appropriate action for the court to take when a . . . corporation does not appear through counsel is
to enter a default judgment.” Broadcast Music, Inc. v. Metro Lounge & Café LLC, 2012 U.S. Dist
LEXIS 134689 at *16 (N.D.N.Y. 2012). Accordingly, I hereby grant a default judgment in favor of
the defendant pursuant to Fed. R. Civ. Proc. 55. See e.g., Grace v. Bank Leumi Trust Co. Of N.Y.,
443 F.3d 180, 192 (2d Cir. 2006) (Rule 55 default judgment may be entered against a corporation
that fails to appear through counsel); Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir.
1991) (partnership’s disregard for court’s order to appear by counsel justifies the imposition of
default). The plaintiff’s claims are dismissed in their entirety, without prejudice. Defendant’s
pending motion to dismiss (Dkt. #4) is denied as moot.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
April 24, 2013.

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