Drug Free Gang Free, Inc. v. Homeboy Industries, Inc.

Filing 4

Order Dismissing Case - Signed by District Judge Louise Wood Flanagan on 5/23/2017. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

DRUG FREE GANG FREE, INC.,
Plaintiff,
v.
HOMEBOY INDUSTRIES, INC.,
Defendant.
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DRUG FREE GANG FREE, INC.,
Plaintiff,
v.
HOMEBOY INDUSTRIES, INC.,
Defendant.

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NO. 5:16-CV-842-FL

NO. 5:17-CV-212-FL

These matters involving alleged copyright infringement are before the court on its own
initiative and plaintiff’s motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 in
civil action NO. 5:17-CV-121-FL (“Drug Free II”). For the reasons that follow, civil action NO.
5:16-CV-842-FL (“Drug Free I”) is dismissed with prejudice and the motion to proceed in forma
pauperis in Drug Free II is denied.
BACKGROUND
Plaintiff filed Drug Free I October 7, 2016, and was denied leave to proceed in forma

pauperis. (Drug Free I, Feb. 28, 2017, text order). Pursuant to Local Civil Rule 3.2, plaintiff was
allowed 30 days to retain counsel and pay the filing fee, which deadline elapsed April 25, 2017. No
counsel has appeared on plaintiff’s behalf nor has plaintiff paid the filing fee.
On May 5, 2017, plaintiff filed Drug Free II, asserting the same claims of copyright
infringement raised in Drug Free I. (Drug Free II, DE 1). Again, plaintiff moved to proceed in
forma pauperis. (Id.).
DISCUSSION
Under Federal Rule of Civil Procedure 41(b), if a plaintiff fails to prosecute, the court on its
own motion may dismiss the action. Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (citing Fed.
R. Civ. P. 41(b)). A penalty dismissal under Rule 41(b) “operates as an adjudication on the merits.”
Fed. R. Civ. P. 41(b). By its failure to retain counsel and pay the filing fee within the required
deadline, plaintiff has failed to prosecute Drug Free I. Accordingly, that matter is dismissed.
Turning now to plaintiff’s motion to proceed in forma pauperis in Drug Free II, again, a
corporation cannot proceed in forma pauperis under 28 U.S.C. § 1915. See Rowland v. Cal Men’s
Colony Unit II Men’s Advisory Council, 506 U.S. 194, 201–02 (1993). “[A] corporation may
appear in the federal courts only through licensed counsel.” Id. (citations omitted). Therefore,
where plaintiff is a corporation, its motion to proceed in forma pauperis, as before, must be and is
denied.
Again, pursuant to Local Civil Rule 3.2, plaintiff is allowed 30 days to retain counsel to enter
an appearance in this matter and pay the filing fee. Failure to retain counsel or pay the filing fee
within the deadline will result upon these repeated filings in dismissal with prejudice.

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CONCLUSION
Drug Free I, civil action NO. 5:16-CV-842-FL is DISMISSED. The clerk is DIRECTED
to close the case. Plaintiff’s motion to proceed in forma pauperis in Drug Free II, civil action NO.
5:17-CV-121-FL, is DENIED. Plaintiff is ALLOWED 30 days from date of entry of this order
within which to pay the filing fee and retain counsel to enter an appearance in this matter. If 30
days elapse with no filing fee being paid and notice of counsel being filed, this action shall be
dismissed with prejudice.
SO ORDERED, this the 23rd day of May, 2017.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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