CHRISTUS Health Systems, Inc. et al v. American Consultants RX, Inc. et al

Filing 16

ORDER DENYING 14 Motion to Strike. Signed by Judge David Ezra. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CHRISTUS HEALTH CARE
SYSTEMS, INC., and CHRISTUS
SANTA ROSA HEALTH CARE
CORPORATION,
Plaintiffs,
vs.
AMERICAN CONSULTANTS RX
INC., AMERICAN CONSULTANTS
INC., and CHARLES MYRICK,
Defendants.

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CV. NO. SA-12-CV-1221-DAE

ORDER (1) DENYING WITHOUT PREJUDICE PLAINTIFFS’ MOTION TO
STRIKE; (2) REQUIRING CORPORATE DEFENDANTS TO OBTAIN
COUNSEL; (3) ORDERING DEFENDANT MYRICK TO AMEND HIS
ANSWER AND SPECIAL APPEARANCE
Before the Court is Plaintiffs’ Motion to Strike Defendants’ Answer
and Vacate Their Special Appearances. (Doc. # 14.) For the reasons that follow,
the Court DENIES WITHOUT PREJUDICE Plaintiffs’ Motion; ORDERS
Defendants American Consultants RX, Inc. and American Consultants, Inc. to
obtain legal counsel within twenty (20) days of the entry of this Order; and
ORDERS Defendant Myrick to amend his Answer and Special Appearance to
comply with the Local Rules within twenty-eight (28) days of the entry of this
Order.
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BACKGROUND
Plaintiffs filed suit against Defendants on December 26, 2012,
alleging violations of the Copyright Act, 17 U.S.C. § 101 et seq.; the Lanham Act,
18 U.S.C. § 1051 et seq.; and the Texas Business and Commerce Code § 16.29.
(Doc. # 1.) Defendants American Consultants RX, Inc. (“ACRX”) and American
Consultants, Inc. (“ACIRX”) are both for-profit corporations legally charted in the
State of California. (See doc. # 14 Exs. A, B; doc. # 8 ¶¶ 3–5.) Defendant Charles
Myrick is the President and CEO of both ACRX and ACIRX. (Doc. # 8 at 12.)
In response to the Complaint, Defendant Myrick made a “special
appearance,” stating that it was “solely for the limited purpose of filing an answer
within the time prescribed by law.” (Doc. # 7.) In his Answer, Myrick asserted
that all three Defendants—ACRX, ACIRX, and Myrick—were appearing pro se.
(Doc. # 8 at 12.) On March 11, 2013, Plaintiffs filed the Motion to Strike Answer
to Complaint and Vacate Special Appearances that is now before the Court.
(Doc. # 14.)
DISCUSSION
I.

A Corporation May Not Proceed Pro Se
A corporation is not permitted to proceed pro se in federal court. See

Rowland v. Calif. Men’s Colony, 506 U.S. 194, 201–02 (1993) (noting that it has
been the law for almost two centuries that a corporation must only appear in
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federal court through licensed counsel); Osborn v. Bank of the United States, 22
U.S. 738, 830 (1824) (“A corporation . . . can appear only by attorney, while a
natural person may appear for himself.”). Section 1654 of Title 28, United States
Code, provides that parties may choose to plead and conduct their own cases
personally or through counsel, but it “does not allow corporations, partnerships, or
associations to appear in federal court otherwise than through a licensed attorney.”
Rowland, 506 U.S. at 202. The Fifth Circuit has noted that
[c]orporations and partnerships, by their very nature, are unable to represent
themselves, and the consistent interpretation of Section 1654 is that the only
proper representative of a corporation or partnership is a licensed attorney
. . . regardless of how close his association with the corporation or
partnership.
Sw. Express Co., Inc. v. ICC, 670 F.2d 53, 56 (5th Cir. 1982) (quoting Turner v.
Am. Bar Ass’n, 407 F. Supp. 451, 476 (1975)). This is so even when the person
seeking to represent the corporation is its president and major stockholder. In re
K.M.A., Inc., 652 F.2d 398, 399 (5th Cir. 1981). When a corporation declines to
hire counsel to represent it, the court may properly dismiss its claims (if it is a
plaintiff) or strike its defenses (if it is a defendant). See Donovan v. Road Rangers
Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984).
While Defendant Myrick, as an individual defendant, may appear pro
se, the two corporate Defendants may not do so. Moreover, because Defendant
Myrick is not a licensed attorney admitted to practice in the Western District of
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Texas, he may not represent ACRX or ACIRX. Accordingly, the Court ORDERS
ACRX and ACIRX to obtain legal counsel and cause counsel to enter an
appearance within twenty (20) days of the entry of this Order. If licensed counsel
has not entered an appearance on behalf of the corporate Defendants within that
time, the Court will strike their Answer, vacate their Special Appearances, and
conduct further proceedings in accordance with the law, including, but not limited
to, entry of an order of default and/or default judgment. See, e.g., Donovan, 736
F.2d at 1006 (“Gordon declined to hire counsel to represent the corporation[,] so
the district court properly struck the defenses of the corporation.”); PFK Bus. Sys.,
Inc. v. WWW.ZipWorld.com, Inc., No. CIV. A. 301CV1336L, 2002 WL 1285574,
at *7 (N.D. Tex. 2002) (explaining that if the corporate plaintiff did not obtain
counsel, the action would “proceed without [the corporation] having the benefit of
counsel or being able to present evidence at trial, and the court [would] conduct all
further proceedings without [the corporation’s] participation”).
II.

Defendant Myrick Has Not Complied with the Rules of this Court
The Local Rules provide that
[a] pleading, motion, or other submission filed by an unrepresented party
shall contain the party’s mailing address, e-mail address, signature, and
telephone and fax numbers, including area code.

Local Rule CV-10(c). Neither Defendant Myrick’s Special Appearance nor his
Answer contains his mailing address, e-mail address, telephone number, or fax
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number. Without this information, Plaintiffs’ attorneys would not be able to
conduct the ordinary business that transpires between counsel on opposing sides of
a civil matter, such as certifying to the Court, as required for non-dispositive
motions, that they had conferred with Defendant in a good-faith attempt to resolve
the matter and that an agreement could not be reached. Accordingly, Defendant
Myrick is ORDERED to amend his Answer and Special Appearance to comply
with the Local Rules of this Court within twenty-eight (28) days of the entry of this
Order. If Defendant Myrick fails to do so, the Court will strike his Answer, vacate
his Special Appearance, and conduct further proceedings in accordance with the
law, including, but not limited to, entry of an order of default and/or default
judgment.
CONCLUSION
For the reasons given, the Court DENIES WITHOUT PREJUDICE
Plaintiffs’ Motion to Strike Defendants’ Answer and Vacate Their Special
Appearances. (Doc. # 14.)
The Court ORDERS Defendants American Consultants Rx, Inc. and
American Consultants, Inc. to obtain legal counsel within TWENTY (20) days of
the entry of this Order and cause them to enter an appearance before submitting
any further filings in this matter.

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The Court further ORDERS Defendant Myrick to amend his Special
Appearance and Answer to comply with the Local Rules within
TWENTY-EIGHT (28) days of the entry of this Order.
IT IS SO ORDERED.
DATED: San Antonio, Texas, July 18, 2013.

_____________________________
David Alan Ezra
Senior United States District Judge

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