Harris Express, LLC v. Moore et al

Filing 9

Order Dismissing Case. Signed by District Judge Terrence W. Boyle on 9/23/2015. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:15-CV-116-BO

HARRIS EXPRESS, LLC,
Plaintiff,
V.

JOSEPH MOORE; METRO PO LIT AN
PROPERTY MANAGEMENT, INC.;
LILLIE JO WINDLEY HOUSING, INC.;
RUBEN L. SPEAKS, LLC; JOHN H.
MILLER HOUSING, INC.,
Defendants.

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ORDER

This matter comes before the court following plaintiffs inaction on a Notice of
Deficiency [DE 8] filed August 6, 2015, by Magistrate Judge Gates. For the reasons stated
below, the case is DISMISSED.
BACKGROUND
Plaintiff filed a complaint in this Court on July 13, 2015. [DE 1]. The complaint was
signed by Tena Daye, with no indication that Ms. Daye is an attorney or that an attorney
represents the plaintiff at all. !d. On August 6, 2015, Magistrate Judge Gates entered a Notice of
Deficiency directing plaintiffto retain counsel by August 27, 2015, or risk having the complaint
dismissed. [DE 8]. To date, plaintiff has filed no response nor has plaintiff appointed counsel of
record.
DISCUSSION
"[A] corporation may appear in the federal courts only through licensed counsel." [DE 8,

citingRowlandv. California Men's Colony, 506 U.S. 194,201-02 (1993)]. The same rule

applies for an LLC. United States v. Lavabit, LLC (In re Under Seal), 749 F.3d 276, 290 n. 17
(4th Cir. 2014) (finding that the prohibition on corporations appearing prose has been applied
uniformly to all artificial entities, such as LLCs, "save for a few aberrant cases"). Thus, an LLC
is required to obtain counsel for representation in this Court. See Dominion Res., Inc. v.
Dominion Energy Group LLC, No. 2:13-CV-04757, 2013 WL 5963072, at *3 (S.D.W. Va. 7
Nov. 2013). Should a corporate litigant refuse to obtain counsel, the Court may impose
sanctions, including dismissal oflitigant's claims entirely. See Delta Holdings, LLC v. Town of
Boone, No. 5:13-CV-48-RLV-DSC, 2014 WL 3771602 at *1 (W.D.N.C. 24 Sept. 2014)
(dismissing prose LLC's federal claims after LLC refused to retain counsel despite court
orders); Dove Air, Inc. v. Joda, LLC, No. 1:10CV293, 2011 WL 4712316, at *1 (W.D.N.C. Oct.
6, 2011) (dismissing prose corporation's claims after corporation neglected to obtain new
counsel after admonishment to do so). There are three factors for a district court to consider
before dismissing a case for lack of prosecution: the degree of personal responsibility of the
plaintiff, prejudice to the defendant caused by the delay, and whether the record shows a history
of deliberately proceeding in a dilatory fashion. See McCargo v. Hedrick, 545 F.2d 393, 396 (4th
Cir. 1976).
Here, plaintiffs "personal" responsibility is great. Magistrate Judge Gates issued a clear
warning: promptly retain counsel or risk dismissal. Nevertheless, plaintiff chose not to obtain
counsel. Second, though having the litigation dragged out while waiting on plaintiff may
prejudice the defendant, the delay is not undue at this point. However, third, plaintiff has acted in
a dilatory fashion by not responding in any way to Magistrate Judge Gates's warning. If plaintiff
needed more time to retain counsel, plaintiff could have asked for it. If plaintiff decided not to
retain counsel and let the matter be dismissed, plaintiff could have informed the court of this

decision. Plaintiff even could have moved to dismiss the matter itself. However, plaintiff has
elected to take no action whatsoever, thus prolonging the litigation for everyone else involved.
Accordingly, consideration ofthe three factors militates toward dismissal of plaintiffs
complaint.
Magistrate Judge Gates informed plaintiff unequivocally of each of the aforementioned
rules regarding an LLC attempting to litigate pro se. [DE 8]. Plaintiff was also warned that
failure to obtain counsel could result in dismissal of the case. Id Plaintiff was given three
weeks-until August 27, 2015-to retain counsel. Id To date, plaintiffhas not responded and
has not appointed counsel of record. Accordingly, the Court finds that plaintiffs complaint must
be dismissed.
CONCLUSION
For the foregoing reasons, plaintiffs complaint [DE 1] is DISMISSED.

SO ORDERED, this

.iJ_ day of September, 2015.

T RRENCE W. BOYLE
UNITED STATES DISTRIC