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Polston v. Millenium Outdoors, LLC

United States District Court, E.D. Kentucky, Southern Division, London

March 6, 2017

DARREN POLSTON, Plaintiff,
v.
MILLENNIUM OUTDOORS, LLC, OUTDOOR DISTRIBUTORS, LLC, and HUNTING SOLUTIONS, INC., d/b/a Hunting Solutions USA, Defendants.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE.

         Plaintiff 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.

         Polston 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).

         In 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.

         BACKGROUND

         Plaintiff 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).

         Polston 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).

         Fast 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:[1]

Outdoor Distributors, LLC Registered Agent: Billy Alexander 125 Dogwood Circle Brandon, MS 39042

         On 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 sent to:

Outdoor Distributor, LLC Attn: Jimmy Edwards PO Box 97957 Pearl, MS 39208

         Mr. 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).

         On 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).

         DISCUSSION

         In his Pro Se Letters and Answer, Mr. Edwards attempts to proceed on behalf of Outdoor. But this is something he cannot do.

         Title 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.

         This 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.

         It 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.

         1. Issue of Removal

         But 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.

         a. May 19, 2016 Opinion and Order

         Removal 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 unanimity.”

         Unanimity 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 ...


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