Travelers Casualty and Surety Co. of America v. Portercon, Inc.

Full title: TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut…

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Nov 26, 2013

2:13-cv-01757-MCE-EFB (E.D. Cal. Nov. 26, 2013)

Opinion

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut corporation, Plaintiff, v. PORTERCON, INC., a California corporation, and DOES 1-50, inclusive, Defendants. No. 2:13-cv-01757-MCE-EFB United States District Court, E.D. California. November 26, 2013

          ORDER

          MORRISON C. ENGLAND, Jr., Chief District Judge.

         This breach of contract action instituted by Plaintiff Travelers Casualty and Surety of Company of America ("Travelers") alleges that Defendant Portercon, Inc. ("Portercon") violated the terms of a surety contract issued by Travelers on a construction project in which Portercon was involved. Jurisdiction is premised on diversity of citizenship pursuant to 28 U.S.C. § 1332.

         Presently before the Court is Plaintiff's Motion to Strike Answer and Counterclaim, filed on behalf of Portercon on October 10, 2013 (ECF No. 10). That Motion alleges that a corporation like Portercon can only make an appearance in federal court through lcensed counsel. Plaintiff accordingly asks that both the answer and counterclaim filed on behalf of Portercon, which were submitted by a non-attorney, Brian Porter, be stricken. Neither Brian Porter or Portercon has filed any opposition to Plaintiff's Motion.

         It is clear that Brian Porter cannot represent the Portercon corporation in pro se, as he purports to do in his October 13, 2013 answer and counterclaim. Brian Porter's attempt in that regard violates the clear provisions of Eastern District Local Rule 183(a), which states unequivocally that "[a] corporation or other entity may appear only by an attorney." E.D. Local Rule 183(a); see Rowland v. California Men's Colony , 506 U.S. 194, 201-02 (1993) (artificial entities like corporations, partnerships and associations may appear in federal court only through licensed counsel); see also Federal Rule of Civil Procedure 12(f) (a corporation or other entity may only appear by an attorney). Consequently, the documents filed by Brian Porter on October 10, 2013 must be stricken insofar as it attempts to answer on behalf of Defendant Portercon, Inc. and to assert claims on that corporation's behalf.

         Plaintiff's Motion To Strike Answer and Counterclaim (ECF No. 11) is accordingly GRANTED.¹

1 Because oral argument was not of material assistance, the Court ordered this matter submitted on the briefs. E.D. Cal. Local Rule 230(g).