Joe Hand Promotions, Inc. v. Defazio et al

Filing 12

ORDER on the Plaintiff's Response to Show Cause re 11 Response to Order to Show Cause. SEE ORDER FOR FURTHER DETAILS. Signed by District Judge Martin Reidinger on 07/01/2013. (thh)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00071-MR-DLH

JOE HAND PROMOTIONS, INC.,

)
)
Plaintiff,
)
)
vs.
)
)
JENNIFER DEFAZIO, individually and )
as an officer, director, shareholder, )
and/or principal of OWL’S NEST
)
SPORTS LOUNGE, LLC d//b/a OWL’S )
NEST SPORTS LOUNGE, EDWARD )
SIEMAK, individually and as an
)
officer, director, shareholder and/or )
principal of Owl’s Nest Sports
)
Lounge, LLC, d/b/a Owl’s Nest
)
Sports Lounge, ANTHONY DEFAZIO, )
individually and as an officer,
)
director, shareholder and/or principal )
of Owl’s Nest Sports Lounge, LLC,
)
d/b/a Owl’s Nest Sports Lounge,
)
CHARLES S. MOREHEAD,
)
individually and as an officer,
)
director, shareholder and/or principal )
of Owl’s Nest Sports Lounge, LLC,
)
d/b/a Owl’s Nest Sports Lounge, and )
OWL’S NEST SPORTS LOUNGE,
)
LLC, a North Carolina Limited
)
Liability Company d/b/a Owl’s Nest )
Sports Lounge,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Response to
Show Cause Order [Doc. 11].
On June 19, 2013, the Court entered an Order directing the Plaintiff
to show cause why this case should not be dismissed for failure to
prosecute as to Defendants Jennifer DeFazio, Anthony DeFazio, Charles
S. Morehead, and Owl’s Nest Sports Lounge, LLC d/b/a Owl’s Nest Sports
Lounge. [Doc. 10]. The Plaintiff was further ordered to advise whether it
intended to pursue service of Defendant Edward Siemak. [Id.].
On June 27, 2013, the Plaintiff filed a Response to the Show Cause
Order, stating that it intends to file a motion for default judgment against all
Defendants except Defendant Siemak, as the Plaintiff has decided to
terminate its efforts to serve him. [Doc. 11]. Attached to the Plaintiff’s
Response, however, is a document that Plaintiff’s counsel received entitled
“Response to Summons in a Civil Action.” [Doc. 11-1]. This “Response,”
which was not filed in this Court, appears to answer the allegations of the
Complaint on behalf of Defendants Jennifer DeFazio, Anthony DeFazio,
and Owl’s Nest Sports Lounge, LLC. The Response is signed only by a
Carmen DeFazio, a non-party.

It is unclear whether Ms. DeFazio is a

licensed attorney.

2

Upon review of the Plaintiff’s Response to the Show Cause Order,
the Show Cause Order is hereby discharged. The Court will allow the
Plaintiff fourteen (14) days to file a notice of dismissal as to Defendant
Siemak and to file a motion for default judgment against Defendant Charles
S. Morehead.
The Court will direct the Clerk to file the “Response,” which is
attached to the Plaintiff’s Response to Show Cause Order as Document
11-1, as an Answer on behalf of Defendants Jennifer DeFazio, Anthony
DeFazio, and Owl’s Nest Sports Lounge, LLC.

These Defendants are

advised, however, that this Answer is deficient in several respects. First, it
is unclear whether Carmen DeFazio, who signed the pleading, is a licensed
attorney. If Ms. DeFazio is not a licensed attorney, she may not represent
any of the Defendants in this action and may not submit pleadings on their
behalf. If the Defendants are in fact proceeding pro se (that is, without the
assistance of a licensed attorney), the individual Defendants, Jennifer
DeFazio and Anthony DeFazio, must sign any pleadings in their capacity
as pro se litigants. See Fed. R. Civ. P. 11(a).
As a limited liability company, however, Defendant Owl’s Nest Sports
Lounge, LLC may appear in this Court only through a licensed attorney. A
limited liability company may not proceed pro se or be represented by a
3

non-attorney.

Thus, if Owl’s Nest Sports Lounge, LLC is in fact

unrepresented, it must obtain counsel in order to proceed in this action.
The Defendant Owl’s Nest Sports Lounge, LLC is therefore advised that
failure to obtain counsel and to have such counsel file an amended answer
on its behalf within thirty (30) days of the entry of this Order will result in the
striking of the Defendant’s Answer and the entry of default against it.
IT IS, THEREFORE, ORDERED that the Show Cause Order [Doc.
10] is hereby DISCHARGED.
IT IS FURTHER ORDERED that the Plaintiff shall file a notice of
dismissal as to Defendant Siemak within fourteen (14) days of the entry of
this Order.
IT IS FURTHER ORDERED that the Plaintiff shall file a motion for
default judgment against Defendant Charles S. Morehead within fourteen
(14) days of the entry of this Order.
IT IS FURTHER ORDERED that the Clerk of Court shall file the
“Response to Summons in a Civil Action,” which is attached to the
Plaintiff’s Response to Show Cause Order as Document 11-1, as an
Answer on behalf of Defendants Jennifer DeFazio, Anthony DeFazio, and
Owl’s Nest Sports Lounge, LLC.

4

IT IS FURTHER ORDERED that Defendants Jennifer DeFazio,
Anthony DeFazio, and Owl’s Nest Sports Lounge, LLC shall advise the
Court within thirty days as to whether Carmen DeFazio is a licensed
attorney who intends to represent them in this action. In the event that
Carmen DeFazio is not a licensed attorney, then Defendants Jennifer
DeFazio and Anthony DeFazio shall have thirty (30) days from the entry of
this Order to file an amended answer that is signed by both parties in their
pro se capacities, and Defendant Owl’s Nest Sports Lounge, LLC, shall
have thirty (30) days from the entry of this Order to obtain counsel and
have an amended answer filed on its behalf. The Defendants Jennifer
DeFazio, Anthony DeFazio, and Owl’s Nest Sports Lounge, LLC are
hereby placed on notice that failure to correct the identified
deficiencies may result in their Answer be stricken and the entry of
default against them.
IT IS SO ORDERED.

Signed: July 1, 2013

5