Summary
confirming “this rule also applies to counterclaims”
Summary of this case from Bank of N.Y. Mellon v. Azure Estates Owners Ass'nOpinion
Case No.: 2:11-cv-01240-GMN-CWH
12-03-2012
ARVIK PLATINUM, INC., a New York corporation, Plaintiff, v. DM & ASSOCIATES, INC, a Nevada corporation; VSA, LLC, a Nevada limited liability company; MIKHAEL GISSIN, individually, and SVETLANA RYBINA, individually, Defendants.
ORDER
Pending before the Court is the Motion to Strike Defendant's Answer to the Complaint and Defendant's Counterclaim. (ECF No. 33) filed by Plaintiff ARVIK Platinum, Inc. ("Plaintiff"). Defendant DM & Associates, Inc. ("DM") and Defendant VSA, LLC ("VSA") (collectively, "Corporate Defendants") failed to file a Response.
I. BACKGROUND
On March 30, 2012, Magistrate Judge Hoffman granted the Corporate Defendant's Motion to Withdraw as Attorney Hutchison & Steffen, LLC. (ECF No. 28.) Thereafter, on April 11, 2012, Judge Hoffman ordered the Corporate Defendants to retain counsel or risk having their Answer and Counterclaim (ECF No. 15) stricken. (ECF Nos. 31, 32.) The Corporate Defendants still failed to retain counsel. (ECF No. 32.) For this reason, on April 25, 2012, Judge Hoffman advised Plaintiff's counsel to file a Motion to Strike the Corporate Defendants' Answers and counterclaim and a Motion for Default within two weeks. (ECF No. 32.) Accordingly, Plaintiff filed the instant motion on May 8, 2012. (ECF No. 33.)
As of the date of this Order, the Corporate Defendants remain unrepresented by counsel.
II. DISCUSSION
A. Corporate Defendants' Failed to File Points and Authorities as Required by Local Rule 7-2(d).
The Court first notes that the Corporate Defendants' Response to Plaintiff's Motion was due by May 25, 2012. (ECF No. 33.) As of the date of this Order, nearly five months later, the Corporate Defendants have not filed a Response to Plaintiff's Motion. Pursuant to Local Rule 7-2(d), "[t]he failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion." For this reason alone, Plaintiff's Motion to Strike should be granted.
B. Corporate Defendants' Failure to Retain Counsel Warrants an Entry of Default
Even without consideration of Local Rule 7-2(d), the Court GRANTS Plaintiff's Motion to Strike and for Default. Specifically, it is well-established that corporations and unincorporated associations "may appear in the federal courts only through licensed counsel." Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02 (1993); In re Am. W. Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (stating that "[c]orporations and other unincorporated associations must appear in court through an attorney"). Furthermore, the Ninth Circuit has expressly recognized that default may be entered against an artificial entity for failing to retain counsel. United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993).
C. Pursuant to Rule 41(c) of the Federal Rules of Civil Procedure, DM's Counterclaim is Dismissed for Failure to Comply with a Court Order.
Moreover, dismissal of Defendant DM's counterclaim is also appropriate because the Corporate Defendants failed to comply with the Court's Order to retain counsel. See Fed. R. Civ. P. 41(b) (stating that a plaintiff's failure to comply with a court order warrants involuntary dismissal); Fed. R. Civ. P. 41(c) (providing that this rule also applies to counterclaims). Because DM failed to comply with the Order requiring that they retain counsel, the Corporate Defendant's counterclaim is dismissed.
III. CONCLUSION
IT IS HEREBY ORDERED that Plaintiff's Motion Striking the Answer and Counterclaim filed by Defendant DM & Associates, Inc. and VSA, LLC (ECF NO. 33) is granted.
IT IS FURTHER ORDERED that the Clerk shall enter default as to Defendant DM & Associates and Defendant VSA, LLC. The Plaintiff is directed to file a motion for default judgment. A hearing on that Motion for Default Judgment is set for Janu ary 9, 2013, at 9 :00 a.m ,
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Gloria M. Navarro
United States District Judge