Concepta Business Solutions, LLC , et al v. Cogent Analytics, LLC., et al

Filing 70

ORDER. Signed by Judge Susan J. Dlott on 2/22/17. (wam)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Concepta Business Solutions, LLC, et al.,
Plaintiffs,
v.
Cogent Analytics, LLC f/k/a Braiman &
Associates, LLC, et al.,
Defendants.

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Case No. 1:16-cv-438

Judge Susan J. Dlott

Order

This matter is before the Court on the following filings: Plaintiffs’ Motion to Dismiss
Pursuant to FRCP 41(a)(2) filed by HCMM, Inc., Ripberger, Maguire & Matthews, Inc., and
Patrick Maguire (Doc. 53), Plaintiffs’ Motion to Dismiss Pursuant to FRCP 41(a)(2) filed by
Concepta Business Solutions, LLC, Sandra Pineda, and David Pineda (Doc. 54), and
Defendants’ Motion for Attorneys’ Fees and Costs (Doc. 55).
The precursor for these filings was Plaintiffs’ counsel’s withdrawing as counsel, which
the Court permitted by Court Order on October 13, 2016. In its Order Granting G. Antonio
Anaya’s Motion to Withdraw as Counsel for Plaintiffs, the Court allowed the parties sixty days
to obtain new counsel, who were instructed to file a Notice of Appearance, or to file a Notice of
Pro Se Representation with the Court informing the Court as such. The parties were advised that
although individuals are permitted to proceed pro se, corporations must be represented by an
attorney. The Court stated in its Order, “If the Court has not received a Notice of Appearance or
Notice of Pro Se Representation from a party within sixty days, the claims asserted by that party
will be dismissed.” (Doc. 52 at PageID 2255.)
The Court did not receive a Notice of Appearance, either pro se or by an attorney, on
behalf of any of the Plaintiffs within the sixty-day window allocated by the Court. Instead, the

Court received two Motions to Dismiss, asking the Court to dismiss the claims asserted under
Fed. R. Civ. P. 41(a)(2).1 Plaintiffs stated they were unable to secure replacement counsel and
“plaintiffs are unable to proceed Pro Se.” Although the filings do not comport with the Court’s
Order, the Court will nevertheless broadly construe them as requests for voluntary dismissal
under Rule 41(a)(2). Defendants shortly thereafter filed a Motion for Attorneys’ Fees and Costs
(Doc. 55). In their Memorandum in Support, Defendants ask that the Court find that the
dismissal requested by Plaintiffs be conditioned on being a dismissal with prejudice such that
Defendants are found to be “prevailing parties,” or that the dismissal be without prejudice but
include the assessment of attorneys’ fees and/or costs against Plaintiffs. In addition, the Court
may consider other terms, such as whether the case should be dismissed with prejudice, without
the payment of fees.
The Court set this matter for a Settlement Conference on February 16, 2017. The matter
did not resolve. Accordingly, the Court turns its attention to the aforementioned filings.
Under Rule 41(a)(2), “an action may be dismissed at the plaintiff’s request only by court
order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before
being served with the plaintiff’s motion to dismiss, the action may be dismissed over the
defendant’s objection only if the counterclaim can remain pending for independent adjudication.
Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.”
The Court therefore is now left to consider whether to dismiss Plaintiffs’ claims pursuant
to Rule 41(a)(2), and on what terms for dismissal the Court considers proper. Presumably, based
on their filings, Plaintiffs would like the Court to dismiss this action without prejudice and with

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The Court notes that Doc. 54 was filed after the 60-day clock ran. In any event, neither Doc. 53 nor Doc. 54
constitutes a Notice of Appearance.
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no other terms attached. As previously mentioned, Defendants argue that the Court should
consider “proper terms” to be dismissal with prejudice, or, alternatively, dismissal without
prejudice with the award of attorney’s fees and/or sanctions.
Despite the fact that Plaintiffs did not comply with the Court’s sixty-day Order, the Court
will permit appearances by Plaintiffs for the limited purpose of briefing the issue of dismissal.
Plaintiffs again are advised that corporations may not represent themselves pro se.
Accordingly, the Court sets the following schedule:
(1) Within fourteen (14) days of entry of this Order, Defendants are directed to file time
records supporting their requests for fees in this case and to clarify the status of any
counterclaims that may remain. Defendants may also submit a supplemental brief on
whether it would be appropriate for this Court to dismiss this case with prejudice,
without the imposition of any other terms and conditions, including an award of fees
and costs. Defendants’ supplemental filing should be no more than seven (7) pages.
(2) Within twenty-one (21) days of Defendants’ submission, Plaintiffs may respond to
Defendants’ Motion for Sanctions and supplemental filing. However, because of the
unusual posture of this case, the Court requires that each Plaintiff first clarify his or
her status with the Court as outlined herein.
a. Individuals who chose to represent themselves must first file a Notice of
Appearance Pro Se. A Notice of Appearance Pro Se is a document mailed to
the Clerk’s Office titled “Notice of Appearance Pro Se.” Under the title of the
document, the individual proceeding pro se must state his or her contact
information (name, address, phone number, and email address) and include a
statement that he or she is proceeding in this action as a pro se plaintiff. If
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any Plaintiff is confused about what this filing entails, he or she may call the
Judge’s chambers at [phone] for clarification. The Notice of Pro Se
Representation must be made prior to the submission of a substantive
pleading.
b. If any Plaintiffs retain counsel, counsel must file a Notice of Appearance and
designate the specific parties he or she is representing. A Notice of
Appearance must be made prior to the submission of any substantive
pleading.2
c. If the Court does not receive a filing from any plaintiff, pro se or represented,
within the twenty-one day window, Defendants may proceed with default
judgment.
(3) If filings are timely made by Plaintiffs, within fourteen (14) days of Plaintiffs’
submissions, Defendants may submit a reply brief. Defendants also may submit a
proposed order for the Court’s consideration with their reply brief.
(4) Following this, the Court will review all pleadings. If the Court determines that a
hearing is necessary, it will notify the parties and set a date for a hearing on the
matter. In the event that the Court concludes that a dismissal other than as proposed
by Plaintiffs is appropriate, including a dismissal with prejudice, a dismissal with
prejudice with a determination that Defendants are a “prevailing party,” or a dismissal
without prejudice but with an award of fees/costs, then before so ruling, the Court
will notify the parties first to allow Plaintiffs time to withdraw their request.

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The Court notices that Mark C. Collins has filed pleadings in this action. Mr. Collins should file a Notice of
Appearance specifying all clients he is representing.
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(5) In the meantime, the Court encourages the parties to consult with one another about
resolving this matter through a settlement. The parties have expended significant
time and resources to date. The parties may contact the Court for further assistance in
this regard.
IT IS SO ORDERED.

S/Susan J. Dlott_________________
Judge Susan J. Dlott
United States District Court

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