Wright v. The Fishing Crew Pro Challenge, LLC et al
OPINION AND ORDER granting 38 Motion to Withdraw as Attorney. Attorney Joseph R. Lux and Shane Michael Pullman terminated. Signed by U.S. District Judge Roberto A. Lange on 09/03/2014. (LH) Modified by editing document type on 9/4/2014 (DLC).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
JON WRIGHT d/b/a JQ LICENSING,
THE FISHING CREW PRO
CHALLENGE, LLC; DAVE
UNDERHILL and CURT UNDERHILL,
OPINION AND ORDER
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
was 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."
Under Local Rule of Civil Practice 83.9(C), "[w]ithdrawal 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 reflected that it was mailed to the Defendants
individually. The Motion to Withdraw had a very terse explanation, leaving this Court to infer that
Defendants had not paid attorney's fees billed, that the defense firm warned the Defendants twice in
the eight weeks prior to filing the motion of the defense firm's intention to withdraw if Defendants did
not pay the attorney's fee bill, and that the Defendants still had not paid.
On July 29, 2014, this Court entered an Opinion and Order Concerning Motion to Withdraw.
Doc. 39. This Court determined that the terse Motion to Withdraw had not met the standard of "for
good cause shown," and that more information was needed in the record for this Court to gauge
whether "good cause" existed to allow withdrawal without substitution of counsel at that time. One
reason to so hesitate was:
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) ("It 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 Corp., 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. 2001) (“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."), aff'd sub
nom. Pilla v. Am. Bar Ass'n, 542 F.2d 56 (8th Cir. 1976) and aff'd 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.
Doc. 39. This Court accordingly required the defense attorneys to file an affidavit, ex parte and under
seal if they wished, to show good cause to withdraw and to send that affidavit to the Defendants
together with a copy of the Opinion and Order Concerning Motion to Withdraw, Doc. 39. This Court
stated: "If good cause is shown and the Defendants do not respond within 21 days, then this Court
would grant such a motion, which in turn could cause the corporate Defendant to be in default." Doc.
On August 7, 2014, a defense attorney filed an Ex Parte Affidavit of Counsel for Defendants.
Doc. 40. The defense firm sent the affidavit and a copy of this Court's prior Opinion and Order to
Defendants. Doc. 40. The affidavit shows good cause to allow counsel for Defendants to withdraw.
The Defendants have not responded, notwithstanding more than twenty-one days having elapsed since
service of the affidavit. Therefore, for good cause, it is hereby
ORDERED that the Motion to Withdraw, Doc. 38, is granted; that the law firm of Costello,
Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP, be removed as counsel of record for
Defendants; that the individual Defendants may proceed pro se if they wish; that the corporate
Defendant, The Fishing Crew Pro Challenge, LLC, is in default and has twenty-one days to substitute
counsel after which Plaintiff may seek a default judgment against he corporate Defendant. It is further
ORDERED that the Clerk of Court mail a copy of this Order to each of the Defendants.
Dated September 3, 2014.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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