Olagues et al v. Peribere et al

Filing 24

ORDER dismissing as moot 10 Motion for Judgment as a Matter of Law; striking 3 Pro Se Amended Complaint; Plaintiffs have 30 days from the issuance of this order to retain counsel and file an amended complaint or this case will be dismissed without prejudice. Signed by District Judge Robert J. Conrad, Jr on 8/21/2018. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00068-RJC-DCK
JOHN A. OLAGUES and
RAY WOLLNEY,

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Plaintiffs,
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v.
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JEROME PERIBERE and
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SEALED AIR CORPORATION,
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Defendants.
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________________________________________ )

ORDER

THIS MATTER comes before the Court on its previous Order to Show Cause,
(Doc. No. 22), and Plaintiffs’ Response, (Doc. No. 23). In its Order to Show Cause, the
Court took note that Plaintiffs appear before the Court pro se while asserting an
action alleging that Defendant Jerome Peribere realized illegal “short swing” profits
in violation of Section 16(b) of the Securities Exchange Act of 1934. The Court cited
to several cases stating that plaintiffs may not appear pro se in such matters.1
Plaintiffs’ Response failed to convince the Court that they may appear pro se in this

(Doc. No. 22 at 2) (citing Olagues v. Dimon, No. 1:14-cv-4872-GHW, 2014 U.S.
Dist. LEXIS 197115, at *2 (S.D.N.Y. Aug. 28, 2014) (ordering Plaintiff Olagues to
show cause as to why the action should not be dismissed for lack of counsel); see also
Olagues v. Remondi, Civ. No. 1:17-cv-01004 (D. Del. Mar. 28, 2018) (ordering that
counsel be retained under penalty of dismissal); Olagues v. Ravich, Civ. No. 2:17-cv00938 (C.D. Cal. Jan. 5, 2018) (granting defendants’ motion to dismiss the case the
on the ground that complaint was filed pro se); Olagues v. Steinour, 2018 U.S. Dist.
LEXIS 1701, at *6 (granting defendants’ motion to strike the complaint on the ground
that it was filed pro se); Olagues v. Timken, Civ. No. 5:17-cv-01870 (N.D. Ohio Jan.
3, 2018) (same); Olagues v. Muncrief, 2017 WL 2471062, at *1 (same)).
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case.

In fact, in quoting Section 16(b) of the Security Exchange Act, Plaintiff

emphasized the very language making their pro se status improper:
For the purpose of preventing the unfair use of information which may
have been obtained by such beneficial owner, director, or officer by
reason of his relationship to the issuer, any profit realized by him from
any purchase and sale, or any sale and purchase, of any equity security
of such issuer (other than an exempted security) or a security-based
swap agreement involving any such equity security within any period of
less than six months, unless such security or security-based swap
agreement was acquired in good faith in connection with a debt
previously contracted, shall inure to and be recoverable by the issuer,
15 U.S.C.S. § 78p (emphasis added). “It is well settled that, since recovery is for the
corporation, it is the real party in interest and the stockholder plaintiff is but the
mere vehicle of recovery." Olagues v. Steinour, No. 2:17-CV-49, 2018 U.S. Dist.
LEXIS 1701, at *4 (S.D. Ohio Jan. 4, 2018) (quoting Blau v. Lamb, 314 F.2d 618, 61920 (2d Cir. 1963)). Because this cause of action is representative in nature, Plaintiffs
cannot proceed pro se. Olagues v. Muncrief, No. 17-CV-153-GKF-TLW, 2017 U.S.
Dist. LEXIS 89278, at *2 (N.D. Okla. June 6, 2017).
Pursuant to FED. R. CIV. P. 12(f), a court may, sua sponte, “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Because Plaintiffs failed to show cause as to why they may
appear pro se, the Court STRIKES Plaintiffs’ Complaint, (Doc. No. 1), and Amended
Complaint, (Doc. No. 3). It is further ORDERED that Plaintiffs shall have a period
of time not to exceed thirty (30) days to retain counsel and file an amended complaint
if they wish to proceed in this Court. See Olagues v. Steinour, 2018 U.S. Dist. LEXIS
1701, at *8 (granting Defendant’s Motion to Strike and directing Plaintiff to obtain

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counsel and file an Amended Complaint). Failure to do so will result in this case’s
dismissal without prejudice.
IT IS, THEREFORE, ORDERED that:
1. The Court STRIKES Plaintiffs’ Amended Complaint, (Doc. No. 3);
2. Defendants’ Motion for Judgment as a Matter of Law, (Doc. No. 10), is
DISMISSED as moot; and
3. Plaintiffs have 30 days from the issuance of this order to retain counsel and
file an amended complaint or this case will be dismissed without prejudice.

Signed: August 21, 2018

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