United States District Court, E.D. Kentucky, Southern Division, London
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
Darren Polston was injured while hunting from a tree stand.
He filed this personal injury action against defendants
Millennium Outdoors, LLC (“Millennium”), Hunting
Solutions, Inc. (“Hunting”) and Outdoor
Distributors, LLC (“Outdoor”) in Kentucky state
court. Defendant Millennium removed the action to federal
court. Polston sought to remand the case, but this Court
denied his motion based on the “vouching” rule
for unanimity, which allows counsel for one defendant to
represent in the notice of removal that a co-defendant also
consents to removal. See Harper v. AutoAlliance
Int'l, Inc., 392 F.3d 195 (6th Cir. 2004). It was
this Court's judgment that Hunting and Outdoor gave valid
consent to Millennium to remove the action.
filed a motion for an Entry of Default (DE 22) against
Outdoor on October 17, 2016. He claims that he properly
served Outdoor on January 15, 2016 and that Outdoor did not
file an answer or otherwise respond within the time limits of
Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure. In
response, Jimmy Edwards, the sole Member of Outdoor, filed
two Pro Se Letters on behalf of Outdoor. Mr. Edwards states
that he did not receive notice of the complaint until October
2016 and argues that, in any event, Outdoor is not liable for
Polston's injuries. The Clerk of Court has construed Mr.
Edwards' letters as Outdoor's Objections to the
Plaintiff's Motion for Entry of Default (DE 23),
Outdoor's Motion for Extension of Time to File an Answer
(DE 24), and Outdoor's Motion to Dismiss (DE 28). On
December 28, 2016, Mr. Edwards filed an Answer on behalf of
Outdoor. (DE 31). The Court has subsequently denied
Outdoor's motion to dismiss. (DE 28).
reviewing these motions, a larger issue has become apparent.
Outdoor is not represented by counsel. Because a corporate
entity “cannot appear in federal court except through
an attorney, ” Edward's actions on Outdoor's
behalf are ineffective. See Doherty v. Am. Motors
Corp., 728 F.2d 334, 340 (6th Cir. 1984); Van
Lokeren v. City of Grosse Pointe Park, Mich.,
No. 13-14291, 2014 WL 988965, at *7 (E.D. Mich. Mar. 13,
2014) (“[A] limited liability company also may appear
in federal court only through a licensed attorney.”)
(internal citations omitted). Thus, any attempt by Mr.
Edwards to represent Outdoor is futile. The issue then
becomes whether the original removal of this action valid.
Upon reconsideration, the answer is no. Because the
“consent” given by Outdoor was not given by its
own counsel, the “consent” obtained by Millennium
in its Notice of Removal (DE 1) was ineffective to satisfy
the rule of unanimity. It is, therefore, the Court's
determination that remand is appropriate in this case.
Darren Polston filed a complaint in Pulaski Circuit Court on
December 11, 2015. Polston alleged various claims of products
liability arising out injuries sustained while using a tree
stand. (DE 1). On January 26, 2016, Millennium timely filed a
notice of removal after receiving notice of the lawsuit. (DE
1). The same day Millennium filed its Answer. (DE 3).
then filed a motion to remand (DE 9) arguing that Millennium
failed to meet the unanimity requirement under 28 U.S.C.
§ 1446. Millennium argued, through affidavits submitted
by Millennium's counsel, Barry Sutton, and the President
of Outdoor and Hunting, Billy Alexander, that removal was
appropriate and the rule of unanimity satisfied because both
Hunting and Outdoor consented to the removal of the action.
(DE 12, at 2; DE 10-2). Both affidavits also stated that
neither Hunting nor Outdoor had been served at the time of
removal. (DE 1-1, at 2; 11-2, at 1). On May 19, 2016, this
Court denied Polston's motion to remand. (DE 12). After
the Court's order, Hunting Solutions filed its answer on
June 9, 2016. (DE 13).
forward five months. On October 17, 2016, Polston filed a
Motion for Entry of Default against Outdoor Distributors (DE
22). At that point, Outdoor had not answered or otherwise
responded. According to Polston, on December 15, 2015, the
Kentucky Secretary of States mailed a copy of the summons and
complaint via certified mail to Outdoor. On January 15, 2016,
the Kentucky Secretary of State made a return to the Clerk of
Pulaski Circuit Court, showing that service had been
attempted but the complaint was undeliverable. (DE 22-1). The
address used and returned “attempted not know/unable to
forward” (DE 22-2) was as follows:
Outdoor Distributors, LLC Registered Agent: Billy Alexander
125 Dogwood Circle Brandon, MS 39042
October 21, 2016 Outdoor responded in the form of a letter.
(DE 23). The Clerk construed the letter as both an objection
to the Entry of Default and a motion for an extension of time
to file an answer. (DE 23, 24). The letter, written by Jimmy
Edwards, states that he did not receive notice of the lawsuit
until October 19, 2016 because the original notice was not
sent to the correct address. Instead, he wrote, the proper
address for all correspondence to the matter should have been
Outdoor Distributor, LLC Attn: Jimmy Edwards PO Box 97957
Pearl, MS 39208
Edwards then asked this Court not to enter default because
“[Outdoor] need[s] time to obtain council (sic) in this
matter.” (DE 23). Mr. Edwards also denied “any
and all claims or responsibility” in response to
Polston's Complaint. (DE 23).
November 4, 2016 Mr. Edwards submitted another Pro Se Letter
on behalf of Outdoor. (DE 27, 28). Responding to
Polston's brief in support of Entry of Default, (DE 25,
26), Mr. Edwards explained that Billy Alexander was no longer
a part of Outdoor (and had not been since October, 82014) and
that his appearance on the Mississippi Secretary of State
website as a Registered agent was an oversight. (DE 27). He
also stated that the zip code listed on the website was
incorrect. In the same letter, Mr. Edwards asked that
Polston's complaint be dismissed, “as Outdoor has
no role in design, manufacture (sic), quality control or
import of any product.” (DE 28). Polston then responded
to the Pro Se Letter, which the Clerk construed as a Motion
to Dismiss, arguing that the motion was both inadequately
plead and premature. (DE 29, at 2). Mr. Edwards then filed an
Answer on behalf of Outdoor. (DE 31).
Pro Se Letters and Answer, Mr. Edwards attempts to proceed on
behalf of Outdoor. But this is something he cannot do.
28 U.S.C. § 1654 provides:
In all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the
rules of such courts, respectively, are permitted to manage
and conduct causes therein.
right to appear pro se in federal court is of
esteemed origin. See Osborn v. Bank of the United
States, 22 U.S. (9 Wheat.) 738, 830 (1824) (Marshall,
C.J.). However, the right applies to individuals, not to
juridic persons. As the Supreme Court of the United States
has recognized, § 1654 “does not allow
corporations, partnerships, or associations to appear in
federal court otherwise than through a licensed
attorney.” Rowland v. Cal. Men's Colony,
506 U.S. 194, 202 (1993). See also Doherty v. Am. Motors
Corp., 728 F.2d 334, 340 (6th Cir. 1984) (“[A]
corporation cannot appear in federal court except through an
attorney.”). This rule applies alike to limited
liability companies. “Because both a partnership and a
corporation must appear through licensed counsel, and because
a limited liability company is a hybrid of the partnership
and corporate forms, ” “a limited liability
company also may appear in federal court only through a
licensed attorney.” Van Lokeren v. City of Grosse
Pointe Park, Mich., No. 13-14291, 2014 WL 988965, at *7
(E.D. Mich. Mar. 13, 2014) (quoting Lattanzio v.
COMTA, 481 F.3d 137, 139-40 (2d. Cir. 2007). See
also United States v. Hagerman, 545 F.3d 579, 581- 82
(7th Cir. 2008); Dougherty v. Snyder, 469 F.
App'x 71, 72, 2012 WL 942121, at *1 (3d. Cir. 2012) (per
curiam) (holding that a single-member limited liability
company had to be represented by attorney both in context of
litigation and on appeal); Parris v. Herman, 211
F.3d 1270, 2000 WL 571932 at *2 (6th Cir. 2000) (corporations
and partnerships must be represented in court by an attorney
and may not be represented by an officer). As an officer of
Outdoor-a limited liability company-Mr. Edwards cannot
represent Outdoor's interests in federal court.
follows, then, that the Court cannot consider Outdoor's
Answer (DE 31) or grant relief for Outdoor on its pending
Objections to the Plaintiff's Motion for Entry of Default
(DE 23), Motion for Extension of Time to File an Answer (DE
24), or Motion to Dismiss (DE 28) as they stand.
Issue of Removal
this conclusion begs the larger question of how Outdoor,
whose name had not appeared on the active docket before Mr.
Edwards' letters, consented to the removal of this case
if it was not represented by counsel. This issue requires the
Court to re-examine its previous Opinion (DE 12) denying
Plaintiff's motion to remand.
May 19, 2016 Opinion and Order
jurisdiction exists where the court would have had original
jurisdiction over the action. 28 U.S.C. § 1441(a). In
diversity cases, district courts have original jurisdiction
over cases in which the parties are completely diverse and
the amount in controversy exceeds $75, 000. 28 U.S.C. §
1332(a). Millennium sought to remove the action under Section
1441(a) based on diversity jurisdiction. Section
1446(b)(2)(A) provides that a civil action may be removed to
federal court when brought under § 1441(a) only if
“all defendants who have been properly joined and
served . . . join in or consent to the removal of the
action.” 28 U.S.C. § 1446(b)(2)(A). Whether
removal was proper here turns on the “rule of
of consent is a judicially crafted rule derived from the
federal removal statute § 1446(b)(2)(A), see Loftis
v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th
Cir. 2003), that requires all defendants who have been
properly joined or properly served in an action to consent
to, or join in, a petition to remove an action to federal
court. See Brierly v. Alusuisse Flexible Packaging,
Inc., 184 F.3d 527, 533 n.3 (6th Cir. 1999). Unanimity
is satisfied when counsel for one defendant represents in the