Tonaquint v. Cyclone Power Technologies

Filing 13

MEMORANDUM DECISION AND ORDER striking 7 Motion to Change Venue; granting 10 Motion to Strike. Defendant will have 21 days to notify the court of its representation by an attorney admitted to practice law in Utah or as pro hac vice counsel. This shall be done by filing a notice of appearance. Failure to abide by this order may result in a default judgment entered against Defendant. Signed by Magistrate Judge Paul M. Warner on 3/22/2016. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH CENTRAL DIVISION

TONAQUINT, INC., a Utah corporation,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:15-CV-00536-PMW

CYCLONE POWER TECHNOLOGIES,
INC., a Delaware corporation,

Magistrate Judge Paul M. Warner

Defendant.
The matter before the court is Tonaquint, Inc.’s (“Plaintiff”) motion to strike1 Cyclone
Power Technologies, Inc.’s (“Defendant”) answer document2 entitled “CYCLONE POWER
TECHNOLOGIES INC ANSWER, AFFIRMITIVE DEFENSES, COUNTERCLAIM AND
CROSSCLAIM TO AMENDED COMPLINT.” Plaintiff also seeks a court order striking all
Defendant’s pleadings filed through Frankie Fruge. Ms. Fruge is the President and Director of
Cyclone Power Technologies Inc., and is attempting to file pleadings pro se, on behalf of
Defendant.
It is well established under Tenth Circuit precedence that a corporation is not allowed to
appear pro se. See, e.g., Harrison v. Wahatoyas, L.L.C, 253 F.3d 552, 556 (10th Cir. 2001) (“As
a general matter, a corporation or other business entity can only appear in court through an
attorney and not through a non-attorney corporate officer appearing pro se.”); DeVilliers v. Atlas

1

Docket no. 10.

2

Docket no. 6.

Corp., 360 F.2d 292, 294 (10th Cir. 1966) (“[A] corporation can appear in a court of record only
by an attorney at law.”); Flora Constr. Co. v. Fireman’s Fund Ins. Co., 307 F.2d 413, 414 (10th
Cir. 1962) (“The rule is well established that a corporation can appear in a court of record only
by an attorney at law”). This principle has also been established by the United States Supreme
Court. See, e.g., Rowland v. California Men’s Colony, 506 U.S. 194, 201-202 (1993) (“It has
been the law for the better part of two centuries . . . that a corporation may appear in the federal
courts only through licensed counsel.”). Finally, this principle can also be found in the court’s
local rules; “No corporation, association, partnership or other artificial entity may appear pro se
but must be represented by an attorney who is admitted to practice in this court.” DUCivR 831.3(c).
Ms. Fruge who has signed the “answer” and purports to be the “President” of Defendant,
has made no representation that she is an attorney admitted to the bar of any state. A court
conducted search does not identify any lawyers admitted to the Utah or Florida State Bars with
the last name “Fruge.”3 Because corporations must be represented by an attorney when
appearing before any court of record, and it appears that Ms. Fruge is not an attorney, Plaintiff’s
motion to strike is GRANTED.
The court notes that Defendant requested a change of venue in its answer.4 As this
request was improper because it was made pro se, it is stricken along with any other pleadings
filed by Ms. Fruge in this matter. Based on the foregoing, Defendant will have 21 days to notify
the court of its representation by an attorney admitted to practice law in Utah or as pro hac vice

3

https://services.utahbar.org/Member-Directory, www.floridabar.org/wps/portal/flbar/home/directories/MBR.

4

Docket no. 7 at 1.

2

counsel. This shall be done by filing a notice of appearance. Failure to abide by this order may
result in a default judgment entered against Defendant.
IT IS SO ORDERED.
DATED this 22nd day of March, 2016.
BY THE COURT:

________________________________
PAUL M. WARNER
United States Magistrate Judge

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