United States District Court, E.D. Michigan, Southern Division
TERRENCE G. BERG DISTRICT JUDGE.
REPORT AND RECOMMENDATION
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE.
reasons that follow, it is recommended that Plaintiff's
Complaint be DISMISSED pursuant to Federal
Rule of Civil Procedure 41(b) for Plaintiff's failure to
comply with the Court's November 13, 2018 Order Requiring
Plaintiff to Secure Counsel.
Jeff Walby DDS PC initiated this action against Defendant
United States of America on October 11, 2018, alleging
violations of section 7422 of the Internal Revenue Code, 26
U.S.C. § 7422. (Docket no. 1.) Jeff Walby DDS signed,
dated, and filed the Complaint in this matter on behalf of
Plaintiff. (Id. at 6, 15.) This matter has been
referred to the undersigned for all pretrial proceedings.
(Docket no. 6.)
well settled that artificial entities, such as professional
corporations, must be represented by a licensed attorney in
order to proceed in federal court. As the Supreme Court
stated in Rowland v. California Men's Colony, Unit II
Men's Advisory Council:
It has been the law for the better part of two centuries, for
example, that a corporation may appear in the federal courts
only through licensed counsel. As the courts have recognized,
the rationale for that rule applies equally to all artificial
entities. Thus, save in a few aberrant cases, the lower
courts have uniformly held that 28 U.S.C. § 1654,
providing that “parties may plead and conduct their own
cases personally or by counsel, ” does not allow
corporations, partnerships, or associations to appear in
federal court otherwise than through a licensed attorney.
506 U.S. 194, 201-03 (1993) (citations and footnote omitted).
See also LegalZoom.com, Inc. v. Macey Bankr. Law,
P.C., No. 2:13-cv-8620-ODW(MRWx), 2014 WL 961832, at *3
(C.D. Cal. Mar. 12, 2014) (professional corporations may only
appear in federal courts through licensed counsel);
Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901
F.Supp.2d 92, 97 (D.D.C. 2012) (same); McNaughton v. Cty.
of Chautauqua, No. 15-CV-233-FPG, 2016 WL 126876, at
*1-2 (W.D.N.Y. Jan. 11, 2016) (lay person may not represent a
professional corporation in federal court).
is a professional corporation and must be represented by a
licensed attorney under Rowland, supra. Dr. Walby
does not state that he is an attorney, so he cannot represent
or sign pleadings on behalf of Plaintiff in this matter.
Therefore, on November 13, 2018, the Court ordered Plaintiff
to retain counsel to represent its interests in this case by
December 14, 2018. (Docket no. 8). The Court warned Plaintiff
that its failure to secure counsel may result in the
dismissal of its claims. (Id. at 2 (citing
Moorish Sci. Temple of Am. v. Michigan, No.
14-cv-12166, 2014 WL 2711945, at *2 (E.D. Mich. June 16,
2014) (“A complaint filed by an unrepresented
corporation . . . is a nullity which may be stricken and the
Federal Rule of Civil Procedure 41(b), a federal court may
sua sponte dismiss a claim for failure to prosecute
or comply with a court order. Link v. Wabash R.R.
Co., 370 U.S. 626, 630-32 (1962); Steward v. City of
Jackson, Tenn., No.00-6011, 2001 WL 278687, at *1 (6th
Cir. Mar. 13, 2001) (unpublished). Moreover, Eastern District
of Michigan Local Rule 41.2 provides that “when . . .
the parties have taken no action for a reasonable time, the
court may, on its own motion after reasonable notice or on
application of a party, enter an order dismissing or
remanding the case unless good cause is shown.” E.D.
Mich. LR 41.2. The court should consider the following
factors before dismissing an action under Rule 41(b):
“(1) whether the party's failure to cooperate is
due to willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dilatory conduct of the
party; (3) whether the dismissed party was warned that
failure to cooperate could lead to dismissal; and (4) whether
less drastic sanctions were imposed or considered before
dismissal was ordered.” Stough v. Mayville Cmty.
Schs., 138 F.3d 612, 615 (6th Cir. 1998).
did not secure counsel by December 14, 2018 as ordered,
despite the Court's warning that failure to do so could
result in dismissal. Plaintiff's failure to secure
counsel and properly prosecute this case appears to be
willful, as Defendant informs that it contacted Dr. Walby on
December 18, 2018 to inquire whether he intended to retain
counsel, and he indicated that he did not intend to do so.
(See docket no. 10 at 1-2.) Plaintiff's conduct
(or lack thereof) has prejudiced Defendant, albeit minimally,
because Defendant was required to appear and file motions and
other documents in this case, which Plaintiff has essentially
abandoned. There are no less drastic sanctions available for
the simple reason that Plaintiff cannot proceed in federal
court without counsel. Accordingly, Plaintiff's Complaint
should be dismissed pursuant to Federal Rule of Civil
Procedure 41(b) for Plaintiff's failure to comply with
the Court's November 13, 2018 Order Requiring Plaintiff
to Secure Counsel.
NOTICE TO PARTIES REGARDING OBJECTIONS
parties to this action may object to and seek review of this
Report and Recommendation, but are required to act within
fourteen (14) days of service of a copy hereof as provided
for in 28 U.S.C. § 636(b)(1) and Eastern District of
Michigan Local Rule 72.1(d). Failure to file specific
objections constitutes a waiver of any further right of
appeal. Thomas v. Arn, 474 U.S. 140, 149 (1985);
Howard v. Sec'y of Health & Human Servs.,932 F.2d 505 (6th Cir. 1991); U.S. v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981). Filing of objections which
raise some issues but fail to raise others with specificity
will not preserve all the objections a party might have to
this Report and Recommendation. Willis v. Sec'y of
Health & Human Servs., 931 F.2d 390, 401 (6th Cir.