Wright v. The Fishing Crew Pro Challenge, LLC et al

Filing 39

OPINION AND ORDER CONCERNING MOTION TO WITHDRAW. Signed by U.S. District Judge Roberto A. Lange on 07/29/2014. (LH)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

JON WRIGHT d/b/a JQ LICENSING,
Plaintiff,
vs.
THE FISHING CREW PRO
CHALLENGE, LLC; DAVE
UNDERHILL and CURT UNDERHILL,
As Individuals,
Defendants.

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CIV 13-3031-RAL

OPINION AND ORDER
CONCERNING
MOTION TO WITHDRAW

On July 23,2014, attorneys from the law firm of Costello, Porter, Hill, Heisterkamp, Bushnell

& Carpenter, LLP, filed a Motion to Withdrawal as counsel of record for the Defendants, Doc. 38,
seeking to withdraw without substitution of new counsel. The explanation for the Motion to Withdraw
is that the "Defendants were notified in writing on June 4, 2014, and again on July 9, 2014, that unless
they met their obligations to your Movants, .. . we would seek to withdraw based on their continuing
failure to fulfill their obligation ... regarding Movant's provision of legal services to Defendants.
Defendants have failed to meet their obligations and Movants now seek to withdraw." Doc. 38.
Discussion
Under Local Rule of Civil Practice 83.9(C), "[w Jithdrawal without substitution may be granted
only upon motion, for good cause shown. Notice of the motion will be provided to the client by the
withdrawing attorney." The Motion to Withdraw reflects that it was mailed to the Defendants
individually. The Motion to Withdraw has a very terse explanation, leaving this Court to infer that
Defendants have not paid attorney's fees billed and that the defense firm threatened twice in the last
eight weeks to withdraw if Defendants did not pay the attorney's fee bill , and Defendants still have not

paid. Such an inference mayor may not be entirely correct and other circumstances besides being
merely a couple of months behind on attorney's fees payment ought to exist to constitute good cause
for allowing counsel to withdraw as counsel of record without substitution.
Because Defendant The Fishing Crew Pro Challenge, LLC is a limited liability corporation,
another reasons exists to forestall granting the Motion to Withdraw. Individuals like Defendants Dave
and Curt Underhill may represent their own interests pro se but not those of a company. See, e.g.,
Rowland v. Cal. Men's Colony, 506 U.S . 194,201-02 (1993) (lilt has been the law for the better part
of two centuries ... that a corporation may appear in federal courts only through licensed counsel. ")
(citations omitted). A corporation is technically in default on the date its counsel is permitted to
withdraw unless substitute counsel has entered an appearance. Ackra Direct Mktg. Corp. v. Fingerhut
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86 F.3d 852, 856 (8th Cir. 1996). These rules also apply to partnerships and limited liability

corporations. Rowland, 506 U.S. at 202 (1993); Tinker & Chance v. Zowie Intertainment, Inc., 15
Fed. App'x 827, 828 (Fed. Cir. 200 I) ("All artificial entities, such as corporations, partnerships, or
associations, may only appear in federal court through a licensed attorney."); Turner v. Am. Bar Ass'n,
407 F. Supp. 451, 476 (N.D. Tex. 1975) ("Corporations and partnerships ... cannot appear for
themselves personally. With regard to these two types of business associations, the long standing and
consistent court interpretation of [28 U.S.c.A. § 1654] is that they must be represented by licensed
counsel."), affd sub nom. Pilla v. Am. Bar Ass'n, 542 F.2d 56 (8th Cir. 1976) and affd sub nom.
Taylor v. Montgomery, 539 F.2d 715 (7th Cir. 1976). If this Court were to grant the Motion to
Withdraw without substitution of counsel at this time, then Defendant The Fishing Crew Pro
Challenge, LLC could be technically in default.
This Court cannot expect the defense attorneys to represent for-profit businesses and those
affiliated with those businesses on a pro bono basis however. Yet the standard for granting a motion
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of this nature is "for good cause shown," which has not been met here. More information simply needs
to exist in the record for this Court to gauge whether "good cause" exists to allow withdrawal without
substitution of counsel at this time. The defense attorneys need to file an affidavit, ex parte and under
seal if they wish, showing good cause to withdraw and need to send that affidavit to the Defendants.
If good cause is shown and the Defendants do not respond within 21 days, then this Court would grant
such a motion, which in tum could cause the corporate Defendant to be in default. Therefore, it is
hereby
ORDERED that the Motion to Withdraw, Doc. 38, is held in abeyance pending filing of an
affidavit establishing good case. It is further
ORDERED that if an affidavit from the defense attorneys is filed and served on the Defendants,
the Defendants will have 21 days within which to file a response if they contest withdrawal ofcounsel.

It is finally
ORDERED that defense attorneys send a copy of this Order to the Defendants.
Dated July 29,2014.
BY THE COURT:

UNITED STATES DISTRICT JUDGE

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