Stewart v. Legal Helpers Debt Resolution, PLLC et al

Filing 77

ORDER that within 14 days of entry of this Order Pltf shall file a notice of dismissal with respect to the alleged class claims and Deft CDS Client Services, Inc. shall file a notice of appearance of counsel; and within 21 day s of the entry of this Order Pltf shall file an appropriate motion, either seeking an entry of default or seeking confirmation of the arbitration award, with respect to his individual claims against CDS Client Services, Inc. Signed by District Judge Martin Reidinger on 5/8/14. (As directed Deft CDS Client Services served by US Mail at last known address.) Signed by District Judge Martin Reidinger on 5/8/14. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 2:11-cv-00026-MR-DLH

ROBERT STEWART, an individual,
and others similarly situated,

Plaintiff,
vs.
LEGAL HELPERS DEBT
RESOLUTION, LLC, et al.,
Defendants.

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ORDER

THIS MATTER is before the Court sua sponte.
On January 16, 2014, the Honorable Dennis L. Howell, United States
Magistrate Judge, entered an Order granting the Defendants until March 7,
2014, to file a motion to dismiss the Plaintiff’s class claims. [Doc. 75]. On
March 3, 2014, the Defendants filed a Status Report advising that counsel
for the Plaintiff would file a voluntary dismissal as to the class claims no later
than March 7, 2014. In light of this information, the Defendants advised that
they would refrain from filing a motion to dismiss the alleged class claims.
[Doc. 76]. To date, however, the Plaintiff has not filed any dismissal of the
alleged class claims, nor has the Defendants moved to dismiss such claims.

Additionally, in June 2013, the Magistrate Judge entered an Order
allowing counsel to withdraw from representing all of the Defendants. [Doc.
59]. While defense counsel subsequently made a notice of appearance on
behalf of Defendants Legal Helpers Debt Resolution, PLLC, Macey, Aleman,
Hyslip & Searns, Jeffrey Hyslip, and Linda Carol, no counsel has ever made
an appearance on behalf of Defendant CDS Client Services, Inc. As a
corporate entity, CDS Client Services, Inc. cannot proceed pro se in this
matter. Gilley v. Shoffner, 345 F.Supp.2d 563, 566 (M.D.N.C. 2004).
This case proceeded to arbitration in April 2013 between the Plaintiff
and CDS Client Services, Inc. only.1 An arbitration award was subsequently
entered in favor of the Plaintiff.
In November 2013, the Plaintiff filed a motion to re-open the case for
the purpose of confirming the arbitration award. [Doc. 70]. That motion was
granted, and the case was re-opened. [Doc. 73]. To date, however, the
Plaintiff has not filed a motion to confirm the arbitration award with respect
to his individual claims against CDS Client Services, Inc.2

1

CDS Client Services, Inc. was represented at arbitration by William R. Mitchell, Esq. of William
R. Mitchell, Inc.
In support of the Motion to Re-open, the Plaintiff filed a “Brief in Support of Motion for
Confirmation of Arbitration Award” [Doc. 71], thus indicating that the Plaintiff may have intended
his motion to be one seeking both a re-opening of the case and a confirmation of the arbitration
award. That intention, however, was not evident on the face of the motion, and therefore the
Magistrate Judge did not address the confirmation of the arbitration award in granting the
Plaintiff’s motion and re-opening the case.
2

In light of the foregoing, the Court enters the following Order.
IT IS, THEREFORE, ORDERED that within fourteen (14) days of the
entry of this Order, the Plaintiff shall file a notice of dismissal with respect to
the alleged class claims. Failure to file a notice of dismissal within the
time required will result in the dismissal of such claims by the Court.
IT IS FURTHER ORDERED that within fourteen (14) days of the entry
of this Order, the Defendant CDS Client Services, Inc. shall file a notice of
appearance of counsel. Failure to file a notice of appearance within the
time required will result in the entry of default against this Defendant.
IT IS FURTHER ORDERED that within twenty-one (21) days of the
entry of this Order, the Plaintiff shall file an appropriate motion, either seeking
an entry of default or seeking confirmation of the arbitration award, with
respect to his individual claims against CDS Client Services, Inc. Failure to
take any further appropriate action within the time required will result
in the dismissal of the Plaintiff’s action against this Defendant.
The Court DIRECTS the Clerk to mail a copy of this Order to the last
known address of Defendant CDS Client Services as set forth below:
CDS c/o William R. Mitchell, Esq
Logan & Retoske, LLP
31351 Rancho Viejo Road
Suite 202
San Juan Capistrano, CA 92675

IT IS SO ORDERED.

Signed: May 8, 2014