Opinion
C. A. 2:23-2749-BHH-MHC
01-04-2024
Alverta G. Bowens, Plaintiff, v. Community Loan Servicing, LLC, Metwest Commercial Lender, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This is civil action filed by Plaintiff Alverta G. Bowens, a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order (Proper Form Order) dated August 17, 2023, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring her case into proper form for evaluation and possible service of process. Plaintiff was warned that failure to provide the necessary information (a completed and signed Form AO-239 or payment of the $402.00 filing fee; a fully completed and signed pro se party's answers to Local Civil Rule 26.01 (D.S.C.) interrogatories form; and, if Plaintiff submitted a Form AO-239 requesting to proceed in forma pauperis, a completed and signed Form USM-285 for each Defendant listed in the case) within the timetable set forth in the Proper Form Order would subject the case to dismissal. See ECF No. 8. In the Proper Form Order, Plaintiff was also notified of material defects in the Complaint and given time to file an amended complaint. Id.
The Form AO-240 submitted by Plaintiff appears to indicate that Plaintiff has adequate income to pay the filing fee. See ECF Nos. 2 and 8.
On September 11, 2023, Plaintiff requested an extension of time to bring her case into proper form (ECF No. 10), which was granted in a Text Order (ECF No. 11) dated September 14, 2023. On October 11, 2023, Plaintiff requested another extension of time. ECF No. 13. In a Text Order dated October 17, 2023, the time for Plaintiff to bring her case into proper form and to file any amended complaint was extended until November 17, 2023. On November 27, 2023, Plaintiff filed an Amended Complaint. However, Plaintiff has failed to provide the required documents to bring her case into proper form.
The Amended Complaint is also not in proper form because, in addition to Plaintiff's failure to provide the documents specified in the Proper Form Order, Plaintiff failed to sign the Amended Complaint and did not provide proposed service documents (a summons form and, if she is proceeding in forma pauperis, a Form USM-285) for the newly named Defendant (Metwest Commercial Lender). Plaintiff should also note that her Amended Complaint may be subject to summary dismissal for lack of federal court jurisdiction and failure to state a claim. Additionally, Plaintiff appears to be attempting to assert claims on behalf of another individual (Alethia C. Meares) and a limited liability corporation (The TIA Group, LLC), which she may not do.
It was noted in the Proper Form Order that “if Plaintiff names any new defendant(s), she must also complete a summons form which lists all defendant(s) with the addresses where each new defendant can be served and, if proceeding in forma pauperis, a completed and signed Form USM-285 for each new defendant.” ECF No. 8 at 6, n. 3.
Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Generally, a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331. Here, Plaintiff has not alleged diversity or federal question jurisdiction. See ECF No. 1 at 3-6.
Although Plaintiff lists the names of the Defendants in the caption and the “Defendants” section of his Complaint, her pleadings fail to provide any specific factual information to support a claim that these named Defendants violated her rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests'” (quoting Fed.R.Civ.P. 8(a)(2))). Moreover, in the facts section, Plaintiff only discusses what occurred as to “another partner” (and not what happened to Plaintiff). See ECF No. 16 at 5.
While 28 U.S.C. § 1654 allows individuals to “plead and conduct their own cases personally,” the statute does not extend that right to represent other parties. See Pridgen v. Andresen, 113 F.3d 391, 392-93 (2d Cir. 1997) (pro se litigant may not represent corporation, estate, partnership, or “his or her minor child”). Corporations may only appear in this federal court and litigate through a licensed attorney who is formally admitted to practice and in good standing with this Court. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993) (recognizing that the rationale for the rule that a corporation may appear in the federal courts only through licensed counsel applies equally to all artificial entities and that “save in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654 ... does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney”); see also In re Under Seal, 749 F.3d 276, 290 n.17 (4th Cir. 2014) (noting that, “[a]s a limited liability company” with only a single member, “Lavabit likely should not have been permitted to proceed pro se at all.”); United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir. 2008) (Holding that LLCs may not proceed pro se and noting that “the right to conduct business in a form that confers privileges, such as the limited personal liability of the owners for tort or contract claims against the business, carries with it obligations one of which is to hire a lawyer if you want to sue or defend on behalf of the entity.”); United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2nd Cir. 2008) (explaining that lay persons cannot represent corporations, partnerships, or limited liability companies and noting that a layman may not represent a corporation even if he is the sole shareholder); U.S. Commodity Futures Trading Comm'n v. OTC Invs. LLC, No. 1:15-cv-00081, 2015 WL 3397066, at *1 (W.D. N.C. May 26, 2015) (“It is well-established that corporate entities and other non-human entities, such as limited liability companies, can appear in federal court only through counsel.”). Therefore, Plaintiff may not bring claims on behalf or another individual or a limited liability corporation.
The extended time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide the proper form documents as outlined in the Proper Form Order. Based on the foregoing, it is recommended that this action be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The Clerk shall mail this Report and Recommendation to Plaintiff at her last known address. If Plaintiff satisfies the requirements for proceeding with this case as is set forth in the Proper Form Order and this Report and Recommendation (as to the additional documents needed to bring the Amended Complaint into proper form) within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling. However, if Plaintiff fails to do so, then at the end of the time for filing objections, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d at 95 (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from Plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when Plaintiff did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed.R.Civ.P. 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); see also Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The parties are also referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).