Native American Council of Tribes et al v. Weber et al

Filing 91

ORDER granting extension of time to respond to 80 MOTION for Summary Judgment by 6/30/2011; directing attorney to notify plaintiffs of 85 First MOTION to Withdraw as Attorney; directing plaintiffs to notify court by 6/17/2011. Signed by Chief Judge Karen E. Schreier on 5/12/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NATIVE AMERICAN COUNCIL OF
TRIBES;
BLAINE BRINGS PLENTY;
SHAWN GARRNETT;
NEPHI ANTELOPE;
BRIAN DUBRAY;
CLAYTON CREEK; and
DAVID DELORIA,
Plaintiffs,
vs.
DOUGLAS WEBER, Warden of South
Dakota State Prison;
TIMOTHY REISCH, Secretary of the
Department of Corrections; and
MARTY JACKLEY; Attorney General,
Defendants.

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Civ. 09-4182-KES

ORDER

Mario Gonzales, attorney of record for plaintiffs, moves to withdraw as
counsel. The named plaintiffs consist of Native American Council of Tribes
and several individuals. Native American Council of Tribes is a South
Dakota nonprofit corporation.1 Defendants do not oppose the motion.

1

According to the website of the South Dakota Secretary of State, Native
American Council of Tribes is nonprofit corporation in good standing with the
State of South Dakota. See South Dakota Secretary of State,
http://www.sdsos.gov/busineservices/corporations.shtm,
http://apps.sd.gov/applications/ST32Cprs/AllDocuments.aspx?&BID=NS009
721&query=Native+American+Council+of+Tribes. According to the
corporation’s 2010 annual report, plaintiffs Blaine Brings Plenty and Clayton
Creek are president and vice president of the nonprofit corporation. The other
officers and directors also reside at the South Dakota State Penitentiary.

Generally, parties are able to represent themselves pro se. See 28
U.S.C. § 1654. But the Eighth Circuit has held that § 1654 does not apply
to corporations. Carr Enterprises v. United States, 698 F.2d 952, 953 (8th
Cir. 1983) (reasoning that § 1654 “has never been interpreted to allow an
individual to appear for a corporation pro se.”). This interpretation “reflects
the ancient common law tradition” that a corporation can only appear in
court with an attorney. Beaudreault v. ADF, Inc. & ADLA, LLC, 635 F. Supp.
2d 121, 121 (D.R.I. 2009) (citing Osborn v. Bank of the United States, 22 U.S.
738, 830 (1824)). The rule requiring corporations to be represented by an
attorney applies to limited liability companies and corporations with one
sole shareholder. See, e.g., Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D.
645, 646-47 n.1 (D. Minn. 2002) (“Even sole shareholders of corporations
are prohibited from representing such corporations pro se.”); Energy Lighting
Mgmt., LLC v. Kinder, 363 F. Supp. 2d 1331, 1332 (M.D. Fla. 2005) (refusing
to allow counsel for a limited liability company to withdraw without
substitution); Int’l Ass’n of Sheet Metal Workers v. AJ Mech., No. 99-451,
1999 WL 447459, at *1-2 (D. Or. June 16, 1999) (same). The Eighth Circuit
Court of Appeals has not considered whether the rule extends to nonprofit
corporations. In an analogous case, the Ninth Circuit Court of Appeals held
that an inmate could not represent the interests of The Lifers Club, Inc., a
nonprofit corporation the inmate formed in conjunction with five other
inmates of the Nevada State Prison. Taylor v. Knapp, 871 F.2d 803, 806 (9t
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Cir. 1989). The court reasoned that the general rule that a corporation could
appear in court only through an attorney applied with equal force to a
nonprofit corporation. Id.
When a corporation’s attorney withdraws, the corporation is
technically in default. Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d
852, 857 (8th Cir. 1996). Once in default, the corporation is prohibited from
proceeding in court. See, e.g., United States v. Van Stelton, 988 F.2d 70, 70
(8th Cir. 1993) (refusing to entertain an appeal because “Van Stelton Farms,
Ltd., a corporation, is not a party to this appeal because it is not
represented by counsel and a corporation cannot appear pro se.” (citing
Carr, 698 F.2d at 953)); Simitar Entm’t Inc. v. Silva Entm’t, Inc., 44 F. Supp.
2d 986, 991 (D. Minn. 1999) (reasoning that a corporation’s motion was not
properly before the court because the corporation appeared pro se (citing
Thompson v. Thomas, 680 F. Supp. 1, 3 (D.D.C. 1987))); Joe Hand
Promotions, Inc. v. George, No. 08-2431-CM, 2008 WL 4974783, at *1 (D.
Kan. Nov. 19, 2008) (striking an answer because the defendant corporation
appeared pro se).
Before the court can consider the motion of Gonzalez to withdraw as
attorney of record, it will give plaintiffs an opportunity to respond.
Therefore, it is
ORDERED that Mario Gonzalez must notify plaintiffs of his request to
withdraw. Plaintiffs have until June 17, 2011, to notify the court of
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substitute counsel, or if they individually wish to proceed pro se and how
that will affect plaintiff Native American Council of Tribes.
IT IS FURTHER ORDERED that the deadline for plaintiffs to respond
to defendants’ motion for summary judgment is extended from May 23,
2011, to June 30, 2011.
Dated May 12, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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