J & J Sports Productions Inc v. MCFINAGIN LLC et al

Filing 36

REPORT AND RECOMMENDATIONS signed by Magistrate Judge William E Duffin on 11/22/2019. IT IS THEREFORE RECOMMENDED that this action be dismissed for failure to prosecute. J & J Sports Productions will have fourteen days to file an objection. Case reassigned to Judge J P Stadtmueller. Judge Magistrate Judge William E Duffin no longer assigned to the case. (cc: all counsel, J&J Sports Productions and Attorney Thomas P. Riley via USPS)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.

Case No. 18-CV-471

MCFINAGIN, LLC,
d/b/a BREW CITY TAP, and
MARK S. SILBER, individually and
as a member of MCFINAGIN, LLC,
Defendants.
ORDER
Plaintiff J & J Sports Productions, Inc. filed the present action on March 26, 2018.
(ECF No. 1.) The case was re-assigned to this court on September 17, 2019. Only
Defendant McFinagin LLC has filed a consent form. (ECF No. 27.)
On March 28, 2019, Attorney Peter Balistreri filed a Disclosure Statement
indicating that he was the counsel of record and that “Dubin & Balistreri, Ltd. will be
appearing for the Plaintiff.” (ECF No. 6.) On October 15, 2019, Attorney Carl Dubin wrote
the court that Attorney Peter Balistreri was in hospice care, and “[Attorney Balistreri] will
not be involved in any proceeding moving forward.” (ECF No. 28.)

On October 29, 2019, Attorney Dubin filed a motion to withdraw Attorney
Balistreri and Dubin & Balistreri, Ltd. as counsel for J & J Sports Productions. (ECF No.
31.) Attorney Dubin indicated that Attorney Balistreri passed away on October 26, 2019.
(Id.) Attorney Dubin further stated, “[t]hat with the demise of Balistreri, [he] alone is
handling the practice of Dubin & Balistreri, Ltd. and has no time to learn and/or prepare
to learn about J & J, their operation/facts and the piracy law necessary to properly
represent J & J.” (ECF No. 33, ¶ 7.)
Attorney Dubin also stated in his affidavit that Attorney Balistreri and Thomas P.
Riley, lead counsel for J & J Sports Productions, had a Legal Services Agreement, which
stated:
11. WITHDRAWAL OF ATTORNEY. Local counsel may withdraw at any
time as permitted under the Rules of Professional Conduct of the State Bar
of Wisconsin.…
(Id., ¶ 8 (emphasis in original).) Attorney Dubin stated that, prior to Attorney Balistreri’s
death, he informed Attorney Riley of Balistreri’s “pending demise” and that he would be
filing a motion to withdraw, “to which Riley objected.” (Id., ¶ 11.)
J & J Sports Productions is a corporation. It is well-established that “[a] corporation
is not permitted to litigate in a federal court unless it is represented by a lawyer licensed
to practice in that court.” United States v. Hagerman, 545 F.3d 579, 581 (7th Cir. 2008) (citing
Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993); Scandia Down Corp. v.
Euroquilt, Inc., 772 F.2d 1423, 1427 (7th Cir. 1985)); see also In re IFC Credit Corp., 663 F.3d

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315, 318 (7th Cir. 2011) (citing Rowland, 506 U.S. at 201-02; Hagerman, 545 F.3d at 581;
Scandia Down Corp., 772 F.2d at 1427; Nixon, Ellison & Co. v. Sw. Ins. Co., 47 Ill. 444 (1868);
Berg v. Mid-America Indus. Inc., 668 N.E.2d 699, 704 (Ill. App. Ct. 1997)) (“Corporations
unlike human beings are not permitted to litigate pro se.”). This rule applies even if the
corporation is owned by only a few closely related individuals or by a single person who
seeks to appear on behalf of the corporation. See, e.g., In re AT&T Fiber Optic Cable
Installation Litig., 2010 U.S. Dist. LEXIS 132286, 9-10 (S.D. Ind. Dec. 13, 2010). “[T]he right
to conduct business in a form that confers privileges, such as the limited personal liability
of the owners for tort or contract claims against the business, carries with it obligations
one of which is to hire a lawyer if you want to sue or defend on behalf of the entity.”
Hagerman, 545 F.3d at 581-82. “[C]orporations must appear by counsel or not at all.”
Scandia Down Corp., 772 F.2d at 1427 (citing Strong Delivery Ministry Ass’n v. Bd. of Appeals,
543 F.2d 32, 33-34 (7th Cir. 1976)).
The court has given J & J Sports Productions time to retain new counsel and for
new counsel to file a notice of appearance on behalf of J & J Sports Productions. However,
successor counsel has not appeared. Therefore, the court recommends that this action be
dismissed for failure to prosecute. J & J Sports Productions will have fourteen days to
object.
The Clerk shall send a copy of this order to J & J Sports Productions’s principal
place of business, as identified in the complaint (ECF No. 1) as:

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2380 South Bascom Avenue
Suite 200
Campbell, California 95008
The Clerk shall also send a copy of this order to Attorney Thomas Riley, who Attorney
Dubin indicated was lead counsel for J & J Sports Productions, at the address provided
by Attorney Dubin on his motion to withdraw (ECF No. 31):
Attorney Thomas P. Riley
Law office of Thomas P. Riley
First Library Square
1114 Fremont Avenue
South Pasadena, CA 91030-3227
IT IS THEREFORE RECOMMENDED that this action be dismissed for
failure to prosecute. J & J Sports Productions will have fourteen days to file an
objection.
Dated at Milwaukee, Wisconsin this 22nd day of November, 2019.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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