Ogbodiegwu v. City of Austin, Building and Standard Commission et al
REPORT AND RECOMMENDATIONS re 8 Motion to Dismiss filed by Carl Smart. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
CITY OF AUSTIN, ET AL.
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Carl Smart’s Motion to Dismiss (Dkt. No.8) and Plaintiff’s
Response (Dkt. No. 10). Having reviewed the Motion, Response and Plaintiff Ben Ogbodiegwu’s
(“Ogbodiegwu”) Original Complaint, the Court submits this Report and Recommendation to the
United States District Court pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure
72, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas.
Ogbodiegwu brings this lawsuit on behalf of Push-Up Foundations, Inc. (“Push-Up”) against
Defendants Carl Smart (“Smart”) (in his official capacity as Director of the Austin Code
Department), City of Austin Building and Standards Commission (“BSC”), Don Ploeger (Former
Assistant City Attorney) (“Ploeger”), and Jeffrey Howard (Plaintiff’s former attorney) (“Howard”),
alleging bribery, retaliation, breach of contract, and discrimination against Push-Up in violation of
the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983. (Dkt. No 1, ¶¶
2-6, 13, 15, 20, 27, 29, 32). Plaintiff served Defendant Howard and he filed an Answer on
November 20, 2014. (Dkt. No. 6). Smart was also served and filed the instant motion to dismiss as
his responsive pleading. It appears that Plaintiff attempted service on Defendant Ploeger and
summons was returned unexecuted on November 3, 2014. (Dkt. No. 3). It does not appear that he
or the City of Austin have been served in this case.
Standard of Review
In the instant motion, Smart moves to dismiss Ogbodiegwu’s claims pursuant to Federal Rule
of Civil Procedure 12(b)(6) asserting that Ogbodiegwu has failed to state a claim upon which relief
may be granted.1 Dismissal for failure to state a claim does not require a determination that, beyond
a doubt, the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Instead, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Ogbodiegwu is proceeding pro se and has named himself as the Plaintiff. However, he states
in the Original Complaint that he “brings this action individually as the Executive Director of PushUp Foundations, Inc.” (Dkt. No. 1at 2). Moreover, all of the allegations in the Original Complaint
relate to harms to Push-Up Foundations, Inc., and not to Ogbodiegwu as an individual.2 Any damage
suffered by Ogbodiegwu is derivative of the injury done to Push-Up Foundations, Inc. See Walker
Smart also argues that he is entitled to qualified immunity for the claims against him.
Because the Court finds that Ogbodiegwu cannot bring pro se personal claims on behalf of Push-Up
Foundations, Inc., the Court does not address the immunity issue.
“The City of Austin has harassed and punished Push-Up Foundations as a part of a scheme
to divert federal funds from their intended purpose of supporting social service and minority
enterprise in slum and blighted neighborhoods . . .the City of Austin has always used the Uniform
Housing Code . . .against Push-Up Foundations in order to take its properties.” (Dkt. No. 1, ¶ 7).
v. Webco Indus., Inc., 562 F. App’x 215, 2014 WL 1388923, at *1 (5th Cir. 2014) (per curiam). In
brief, Ogbodiegwu is attempting to bring suit in his own name on behalf of a corporate entity, which
he cannot do. Bellows v. Amoco Oil Co., 118 F.3d 268, 277 (5th Cir. 1997) (holding that a
stockholder in a corporation does not have standing to bring suit in his own name for injuries
sustained by the corporation, even where that individual is the sole shareholder of a corporation).3
In order for Push-Up Foundations, Inc., to recover on its claims, it must sue on its own behalf.
Ogbodiegwu does not have standing to do so, nor can he individually recover for alleged harms to
Push-Up Foundations, Inc.
Pro Se Representation
Additionally, a corporation cannot proceed pro se. See Memon v. Allied Domecq QSR, 385
F.3d 871, 873 (5th Cir. 2004) (explaining that 28 U.S.C. § 1654 authorizes individuals to appear pro
se, however, since the statute is silent regarding corporations, it has been interpreted as requiring
corporations to appear with an attorney); In Re K.M.A., Inc., 652 F.2d 398, 399 (5th Cir. 1981)
(“[t]he law is clear that a corporation as a fictional legal person can only be represented by licensed
counsel. This is so even when the person seeking to represent the corporation is its president and
major stockholder.”). “A corporation can appear in a court of record only by an attorney at law.”
Southwest Express Co. v. Interstate Commerce Comm'n, 670 F.2d 53, 55 (5th Cir. 1982) (quotation
omitted). Ogbodiegwu is not a lawyer and therefore cannot appear in federal court representing
See also., Gregory v. Mitchell, 634 F.2d 199, 202 (5th Cir. 1981) (holding that shareholders
in bank could not maintain section 1983 action in respect to treatment of bank as only the bank
suffered any cognizable injury); Schaffer v. Universal Rundle Corp., 397 F.2d 893, 896 (5th Cir.
1968) (explaining that a “stockholder’s rights are merely derivative and can be asserted only through
the corporation” and that this “rule is applicable in cases where the individual is the sole
Push-Up Foundations, Inc., or its interests. Push-Up Foundation, Inc., must sue on its own behalf
and must retain an attorney.
“[T]he appropriate measure for a judge to take when confronted with an unrepresented
corporation is inherently discretionary.” Memon, 385 F.3d at 873. “The [court] might, inter alia,
admonish the corporation that it cannot proceed without counsel, order the corporation to retain
counsel within a certain period of time (the appropriate amount of time also being within the judge’s
discretion), or dismiss the case without prejudice and allow the corporation to re-file.” Id. at 873,
n.4. Accordingly, because Mr. Ogbodiegwu cannot represent Push-Up Foundations, Inc., or bring
§ 1983 claims in his own name on behalf of Push-Up Foundations, Inc., the Court recommends that
the District Judge dismiss this case without prejudice.
The undersigned RECOMMENDS that the District Judge GRANT IN PART Carl Smart’s
Motion to Dismiss (Dkt. No.8) and DISMISS all of Ogbodiegwu’s claims against all Defendants
WITHOUT PREJUDICE as to re-filing with counsel and with the corporation as plaintiff.
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S.Ct. 466,
472-74 (1985); Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1428-29 (5th Cir.
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 23rd day of February, 2015.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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