Paul Ashbaugh v. The Corporation of Bolivar, No. 11-1632 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1632 PAUL L. ASHBAUGH, Plaintiff - Appellant, and ASHBAUGH CUSTOM BUILDERS, LLC, Plaintiff, v. THE CORPORATION OF BOLIVAR, a West Virginia municipality; EDWARD HALL, Mayor, in his official capacity; DONNA CALLAR, individually and in her official capacity; ROBERT HARDY, individually and in his official capacity; JOHN HEAFER, individually and in his official capacity; MARY RUTHERFORD, individually and in her official capacity; CARRIE GAUTHIER, individually and in her official capacity, Defendants - Appellees. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:05-cv-00129-JPB) Submitted: August 30, 2012 Decided: Before KING, WYNN, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. September 11, 2012 J. Michael Cassell, CASSELL & PRINZ, PLLC, Charles Town, West Virginia, for Appellant. Michael D. Lorensen, Jared M. Adams, BOWLES RICE MCDAVID GRAFF & LOVE, Martinsburg, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Paul ( ACB ), L. Ashbaugh seek to appeal and the Ashbaugh district Custom court s Builders, order LLC granting summary judgment for Defendants on their 42 U.S.C. § 1983 (2006) complaint. We dismiss the appeal for lack of jurisdiction. [A] corporation may appear in the federal courts only through licensed counsel. U.S. 194, 202 (1993). Rowland v. Cal. Men s Colony, 506 Thus, because Ashbaugh, acting pro se, filed a notice of appeal on behalf of himself and ACB, the notice was not adequate to perfect ACB s appeal. Montgomery, 532 U.S. 757, 763-68 (2001) See Becker v. (finding notice of appeal defective for lack of proper signature as required by Fed. R. Civ. P. 11(a)). Although we brought the defect to ACB s attention one on more than occasion, correct the notice of appeal. ACB failed to promptly See Fed. R. Civ. P. 11(a). The appearance of counsel on behalf of ACB more than eight months after Ashbaugh noticed the appeal, and months after the completion of informal briefing, occurred too late to cure the defect. We therefore strike the notice of appeal as to ACB. See Fed. R. Civ. P. 11(a). Further, we note that ACB, not Ashbaugh, is the owner of the property at issue. court may reasonable judicially dispute notice See Fed. R. Evid. 201(b)(2) ( The because a it fact . 3 . that . can is be not subject accurately to and readily determined from sources whose accuracy cannot reasonably be questioned. ); Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986) (noting that courts are not precluded . . . from taking notice of items in the public record ). Thus, as merely a member of ACB, Ashbaugh does not have standing to appeal on his own behalf the district court s order. See W. Va. Code Ann. § 31B-2-201 (Michie 2009) ( A limited liability company is a legal entity distinct from its members. ); W. Va. Code Ann. § 31B-5-501 (Michie 2009) ( A member is not a coowner of . . . property of a limited liability company. ); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (stating elements of standing); Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311, 1317 (4th Cir. 1994) ( It is considered a fundamental rule that a shareholder even the sole shareholder does not have standing to assert claims alleging wrongs to the corporation. ) (internal quotation marks and brackets omitted). Accordingly, jurisdiction. we dismiss the appeal for lack of We deny as moot the motion to strike Ashbaugh s pro se supplemental reply brief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 4
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