Bidarka Gas Corp et al v. Merrill et al

Filing 35

ORDER setting a new deadline for complying with the terms of Order 30 directing the Merrill Defendants to appear by other counsel or pro se, if appropriate. The Court hereby sets Friday, May 31, 2019 (14 days from the date of this Order) as the new deadline by which Defendants SBM Energy, LLC and MFS Trust dated September 30, 1997, must appear by other counsel admitted to practice before this Court and by which Defendants Stephen J. Merrill and Karen Merrill, in their individual capacities, must appear either pro se or by other counsel admitted to practice before this Court (as more fully set out). Signed by Honorable Patrick R Wyrick on 5/17/2019. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BIDARKA GAS CORP., an Oklahoma
corporation; DUSLEI ENERGY, LLC, an
Oklahoma limited liability company; JIM
PRICE OIL CO., LLC, an Oklahoma
limited liability company; CCJ
VENTURES, LLC, an Oklahoma limited
liability company; BECKHAM OIL CO.
LLC, an Oklahoma limited liability
company; BIG J’S OIL CO. LLC, an
Oklahoma limited liability company;
GARBET INVESTMENTS LLC, an
Oklahoma limited liability company;
DEBORAH K. BRANDT, an individual;
CHARLES R. DOZIER, an individual; and
MARGARET DOZIER, an individual,
Plaintiffs,
v.
STEPHEN J. MERRILL, individually and
as Trustee of the MFS TRUST DATED
SEPTEMBER 30, 1997; KAREN
MERRILL, individually and as Trustee of
the MFS TRUST DATED SEPTEMBER
30, 1997; SBM ENERGY, LLC, an
Oklahoma limited liability company; and
MFS TRUST DATED SEPTEMBER 30,
1997; and DONALD F. SCHNELL,
individually,
Defendants.

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Case No. CIV-18-00041-PRW

ORDER
On April 11, 2019, U.S. District Judge Timothy DeGiusti issued an Order (Dkt. 30)
permitting the withdrawal of attorneys Steven K. Balman and Emily D. Pearson as counsel
of record for Defendants Stephen J. Merrill, both individually and as trustee of the MFS

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Trust dated September 30, 1997; Karen Merrill, both individually and as trustee of the MFS
Trust dated September 30, 1997; SBM Energy, LLC; and the MFS Trust dated September
30, 1997 (collectively, the “Merrill Defendants”). The same Order (Dkt. 30) directed the
Merrill Defendants to appear by other counsel or pro se, if appropriate, within 30 days of
the date of that order—i.e., by May 11, 2019.
Moreover, on April 12, 2019, Defendant Stephen J. Merrill filed a Motion for
Scheduling Conference to Revise Scheduling Order and Extend Deadline for Summary
Judgment Response (Dkt. 31). Therein, Mr. Merrill acknowledged that he “cannot
represent anyone other than himself in this case” because he “resigned from the State Bar
of Oklahoma” and alerted the Court that “[h]e is trying to find substitute counsel to
represent the Merrill Defendants and himself.” 1 In light of those circumstances, Mr. Merrill
sought both an extension of the Merrill Defendants’ deadline to respond to the Plaintiffs’
Motion for Summary Judgment (Dkt. 29) and the setting of a new Status and Scheduling
Conference at which a new Scheduling Order could be entered.
Thereafter, the case was transferred to the undersigned. On May 10, 2019, the Court
issued an Order (Dkt. 34) granting Mr. Merrill’s motion (Dkt. 31). The Order (Dkt. 34)
repeatedly noted the May 11th deadline for the Merrill Defendants to find new counsel. 2

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Mot. for Def. Stephen J. Merrill for Scheduling Conference to Revise Scheduling Order
& Extend Deadline for Summ. J. Resp. (Dkt. 31) ¶¶ 2–3, 6, at 2.

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Moreover, Mr. Merrill acknowledged in his Motion for Scheduling Conference to Revise
Scheduling Order and Extend Deadline for Summary Judgment Response (Dkt. 31) that he
was trying to find new counsel, indicating his awareness of Judge DeGiusti’s April 11th
Order (Dkt. 30).

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The response deadline and Status and Scheduling Conference setting in the Order (Dkt. 34)
presume compliance with the May 11th deadline for obtaining new counsel or, if
appropriate, entering appearances pro se, such that compliance with the new settings in the
May 10th Order (Dkt. 34) turn upon the Merrill Defendants’ retention of new counsel in
compliance with the April 11th Order (Dkt. 30). To date, however, no entry of appearance
either pro se or by substitute counsel has been filed.
The Court hereby sets a new deadline for complying with the terms of Judge
DeGiusti’s April 11th Order (Dkt. 30) directing the Merrill Defendants to appear by other
counsel or pro se, if appropriate. The Court advises the Merrill Defendants that, pursuant
to LCvR 17.1 of the Local Court Rules for the Western District of Oklahoma, “[p]arties
who are not natural persons may not appear pro se.” In other words, it would only be
appropriate for Mr. Merrill and Defendant Karen Merrill, in their individual capacities, to
appear pro se. Defendant MFS Trust dated September 30, 1997, as a trust, cannot appear
without counsel admitted to practice before this Court. 3 Similarly, SBM Energy, LLC, as
a limited liability company, cannot appear without counsel admitted to practice before this

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See Olisa Found. v. Purdue Univ., No. 2:14-cv-00795 WPL/CG, 2014 WL 11512590, at
*1–2 (D.N.M. Oct. 2, 2014); Pembina Nation Little Shell Band of N. Am. v. Wells Fargo
Bank, N.A., No. 1:12-cv-02058-LTB, 2012 WL 4795686, at *1 (D. Colo. Oct. 9, 2012)
(unpublished) (citing Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir.
1994); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697–98 (9th Cir. 1987));
United States v. Cram, No. 2:97-cv-00502 K, 1998 WL 919871, at *5-7 (D. Utah Dec. 3,
1998) (unpublished) (citing the same cases); see also Rowland v. Cal. Men’s Colony, Unit
II Men’s Advisory Council, 506 U.S. 194, 201–02 (1993) (“It has been the law for the better
part of two centuries . . . that a corporation may appear in the federal courts only through
licensed counsel. As the courts have recognized, the rationale for that rule applies equally
to all artificial entities.”).

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Court. 4 The Court hereby sets Friday, May 31, 2019—i.e., 14 days from the date of this
Order—as the new deadline by which Defendants SBM Energy, LLC and MFS Trust
dated September 30, 1997, must appear by other counsel admitted to practice before this
Court and by which Defendants Stephen J. Merrill and Karen Merrill, in their individual
capacities, must appear either pro se or by other counsel admitted to practice before this
Court. Failure to respond to this order may result in judgment by default being
entered against the Merrill Defendants, in admission of the factual allegations
contained in the Plaintiffs’ Motion for Summary Judgment, or in some other
appropriate sanction within this Court’s inherent powers. 5
IT IS SO ORDERED this 17th day of May, 2019.

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Roscoe v. United States, 134 Fed. App’x 226, 228 (10th Cir. 2005)

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See id. at 227 (citing LaFleur v. Teen Help, 342 F.3d 1145, 1149 (10th Cir. 2003); EEOC
v. Roswell Radio, Inc., No. 1:06-cv-00253 JB/LAM, 2007 WL 5685110, at *11 (D.N.M.
Oct. 5, 2007) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); Smith v. Nw. Fin.
Acceptance, Inc., 129 F.3d 1408, 1419 (10th Cir. 1997)).

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