-PAL Ifil v. Bishop Corporate Solutions, No. 2:2010cv02010 - Document 18 (D. Nev. 2011)
Court Description: ORDER Granting 15 Motion to Strike. ORDERED that defendant's pro se motions to dismiss 9 and 13 are STRICKEN. FURTHER ORDERED that clerk's entry of default 7 is VACATED. FURTHER ORDERED that defendant Bishop Corporate Solutions obtain counsel within 30 day from the date of this order. Failure to do so will result in final judgment being entered against it. Signed by Judge James C. Mahan on 7/13/11. (Copies have been distributed pursuant to the NEF - MMM)
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-PAL Ifil v. Bishop Corporate Solutions Doc. 18 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 2:10-CV-2010 JCM (PAL) WILLIS IFIL, Plaintiff, v. BISHOP CORPORATE SOLUTIONS, 11 12 Defendant. 13 14 ORDER 15 Presently before the court is defendant Bishop Corporate Solutions, LLC’ response to 16 plaintiff’s motion for entry of default and motion to dismiss. (Doc. #9). Plaintiff Willis Ifil filed a 17 reply in support of his motion for entry of default and an opposition to defendant’s motion to 18 dismiss. (Doc. #12). Defendant failed to file a reply, yet filed a second motion to dismiss (doc. #13). 19 Plaintiff filed a motion to strike the defendant’s motions to dismiss (doc. #15). 20 Plaintiff Willis Ifil filed his complaint against defendant Bishop Corporate Solutions, LLC 21 on November 17, 2010, alleging violations of the Fair Debt Collection Practices Act. (Doc. #1). 22 According to the plaintiff, defendant was served on January 10, 2011 (doc. #5), yet failed to respond 23 in any manner. Therefore, on March 2, 2011, plaintiff filed a motion for entry of clerk’s default. 24 (Doc. #6). Subsequently, on March 3, 2011, default was entered against defendant Bishop Corporate 25 Solutions, LLC. (Doc. #7). 26 Claiming that it was never served with the complaint and that “in fact, [this was] the first 27 time [it] ha[d] seen any documents regarding this matter,” defendant filed a response to the motion 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 for default and a motion to dismiss. (Doc. #9). Although the defendant is a limited liability company, 2 the documents filed were done so by its president Dianne Jeanotte, and not by an attorney. In 3 response to her filings, the plaintiff filed a reply supporting entry of default and opposing dismissal. 4 (Doc. #12). 5 Proper Service 6 In his reply/opposition (doc. #12), plaintiff provides the court with evidence purporting to 7 prove that the summons and complaint were properly served on the defendant. (Doc. #12-1 Exhibit 8 A). Pursuant to Federal Rule of Civil Procedure 4(e)(1), service of process is proper if it meets the 9 state of Nevada’s service process requirements. Rule 4(d)(1) of the Nevada Rules of Civil Procedure 10 provides that service may be made to any member of a member-managed limited liability company, 11 or any manager of a manager-managed limited liability company. Nevada Rule of Civil Procedure 12 4(d)(1)(iv) and (v). 13 Here, in the process server’s affidavit (doc. #12-1 Exhibit A), he declares that he first 14 attempted to serve process at a residence, but was unsuccessful. However, when he attempted service 15 at the address listed as Bishop Corporate Solutions, LLC’s office, a “white male who identified 16 himself as the manager” accepted service, and then threw the papers at him as he exited. (Doc. #12-1 17 Exhibit A). Plaintiff asserts that evidence of this nature establishes “a prima facie case of the account 18 of the method of service, and thus, in the absence of contrary facts, [courts] presume that [the 19 defendant] was properly served with the complaint.” Old Republic Ins. Co. V. Pacific Financial 20 Services of America, Inc., 301 F.3d 54, 57 (2nd Cir. 2002). 21 Defendant did not reply to plaintiff’s opposition, or provide the court with any facts to 22 support its assertion that it wasn’t properly served. However, when examining whether service was 23 properly effectuated, the court finds that it was not. The defendant Bishop Corporate Solutions is a 24 limited liability company in the state of Nevada, managed by managing members, as evidenced by 25 the secretary of state website. Also evident from the secretary of state website, is that Dianne 26 Jeannotte is the sole manager listed under the “Officers” section. 27 As demonstrated above, proper service on an LLC is accomplished by serving any member 28 James C. Mahan U.S. District Judge -2- 1 of a member-managed limited liability company, or any manager of a manager-managed limited 2 liability company. Nevada Rule of Civil Procedure 4(d)(1)(iv) and (v). As defendant’s affidavit 3 declares that a man who identified himself as a manager received the summons and complaint and 4 then threw the documents at him, service was improper. The man was not a managing member of 5 the limited liability company; he was simply the manager of the office. Dianne Jeannotte is the sole 6 manager and the proper party to be served. Thus, service was not effectuated and default (doc. #7) 7 against Bishop Corporate Solutions, LLC was improperly entered. 8 Corporate Representation/Motion To Strike 9 An entity may not appear in federal court without representation through licensed counsel, 10 and may not proceed pro se. See Rowland v. California Men’s Colony, 506 U.S. 194 at 202 (1993). 11 See also Osborn v. President of Bank of United States, 9 Wheat 738, 829, 6 L.Ed. 204 (1824); See 12 also Turner v. American Bar Assn., 407 F.Supp.451, 476 (1975, N.D. of Texas). Here, defendant 13 Bishop Corporate Solutions is a limited liability company, not a natural person. However, it has filed 14 two pro se motions to dismiss (doc. #9 and #13). 15 Neither pleading bears the signature of an attorney or indicates that the limited liability 16 company is represented by counsel. Accordingly, plaintiff asks this court to strike the defendant’s 17 pleadings for “engaging in the unauthorized practice of law.” (Doc. #15). Defendant failed to file an 18 opposition to this motion, and has not appeared in the case since March of 2011. The court is 19 inclined to strike the defendant’s improper pro se filings (docs. #9 and #13), and order it to obtain 20 counsel. Failure to obtain counsel within thirty (30) days from the date of this order will result in 21 final judgment being entered against defendant. 22 Good cause appearing, 23 IT IS HEREBY ORDERED ADJUDGED AND DECREED that plaintiff Willis Ifil’s motion 24 25 26 to strike (doc. #15) be, and the same hereby is, GRANTED. IT IS THEREFORE ORDERED that defendant’s pro se motions to dismiss (docs. #9 and #13) be, and the same hereby are, STRICKEN. 27 28 James C. Mahan U.S. District Judge -3- 1 2 IT IS FURTHER ORDERED that clerk’s entry of default against defendant Bishop Corporate Solutions (doc. #7) be, and the same hereby is, VACATED. 3 IT IS FURTHER ORDERED that defendant Bishop Corporate Solutions obtain counsel 4 within thirty (30) days from the date of this order. Failure to do so will result in final judgment being 5 entered against it. 6 DATED July 13, 2011. 7 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -4-
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