Opinion
CIVIL ACTION NO. 19-0425
08-13-2019
EUROPEAN SERVICE, INC. d/b/a EUROPEAN MOTORS v. COLONY INSURANCE CO.
JUDGE TERRY A. DOUGHTY
REPORT AND RECOMMENDATION
On April 4, 2019, Defendant Colony Insurance Company removed this matter to federal court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. [doc. # 1]. On May 17, 2019, a representative of Plaintiff European Service, Inc. d/b/a European Motors ("European") informed the Court that European's attorney of record, Carlton L. Parhms, could not handle this case in federal court. [doc. # 12]. However, because Mr. Parhms is admitted to practice in the Western District of Louisiana, the Court ordered him to file a motion to withdraw as counsel or file an opposition to Defendant's pending motion to dismiss [doc. # 8] on behalf of his client. [doc. # 20].
On July 3, 2019, Mr. Parhms filed a motion to withdraw as European's counsel [doc. # 21], which the Court granted. [doc. # 22]. The Court also ordered European to enroll new counsel within 30 days and stated that the "[f]ailure to do so without good cause will lead to dismissal of this case." (Id.)
On July 8, 2019, the Court received a letter, dated July 3, 2019, from European's representative, who stated that European has found no attorney willing to take its case in federal court. [doc. # 23]. European has not responded to the Court's July 8, 2019 Order or enrolled new counsel.
Europeans submitted the letter in response to the Court's June 12, 2019 Show Cause Order. [See doc. # 19]. --------
"A district court may dismiss an action for failure of a plaintiff to prosecute or to comply with any order of court." See McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (citing Fed. R. Civ. P. 41(b)). A court may dismiss an action sua sponte as long as the procedure employed is fair. McCoy v. Wade, No. CIV.A.06 2292, 2007 WL 1098738, at *1 (W.D. La. Mar. 12, 2007). Addressing claims in a Report and Recommendation is fair because the plaintiff is given sufficient notice of and the opportunity to respond to the possible dismissal before the district judge acts. Id.
Because European is a corporation, unlike an individual litigant, it cannot file pleadings or motions in proper person. Glob. Safety Mgmt., LLC. v. Glob. Safety Mgmt., Inc., No. CV 6:14-2194, 2016 WL 1275336, at *3 (W.D. La. Feb. 29, 2016). Thus, counsel is necessary for European to continue this action in federal court. See Memon v. Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir. 2004) (noting the "well-settled rule of law that a corporation cannot appear in federal court unless represented by a licensed attorney"). European has not responded to the Court's most recent Order but has indicated that it has been unable to secure new counsel, despite ample time to do so. Under these circumstances, dismissal without prejudice is the best exercise of the Court's discretion.
Accordingly, IT IS RECOMMENDED that this civil action be DISMISSED WITHOUT PREJUDICE for failure to comply with the orders of this Court. Fed. R. Civ. P. 41(b).
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and FRCP Rule 72(b), the parties have fourteen (14) days from service of this Report and Recommendation to file specific written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. The District Judge will consider timely objections before making a final ruling.
Failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within fourteen (14) days from the date of its service, shall bar an aggrieved party, except on grounds of plain error, from attacking on appeal the unobjected-to factual findings and legal conclusions accepted by the District Judge.
In Chambers, at Monroe, Louisiana, this 13th day of August 2019.
/s/_________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE