David M. McCrary Estate Trust v. Lowes Corp.

Full title: DAVID M. McCRARY ESTATE TRUST Plaintiff, v. LOWES CORP., et. al.…

Court: United States District Court, D. Utah, Central Division

Date published: Oct 25, 2007

Case No. 2:07 CV 346 JTG (D. Utah Oct. 25, 2007)

Opinion

Case No. 2:07 CV 346 JTG.

October 25, 2007

ORDER

J. GREENE, Senior District Judge

David M. McCrary filed a "Notice of Civil Class Action Complaint"¹ purportedly on behalf of the David M. McCrary Estate Trust. Mr. McCrary is attempting to proceed pro se under the in forma pauperis statute, 28 U.S.C. § 1915, without prepayment of the filing fee. Although the magistrate judge previously granted McCrary's application to proceed in forma pauperis, ² the magistrate judge, to whom this matter is referred under 28 U.S.C. § 636(b)(1)(B), now recommends that the application be denied and revoked as improvidently granted.

1 Docket no. 3, filed May 31, 2007.

2 Docket No. 2, filed May 31, 2007.

The Supreme Court has held that only natural persons qualify for in forma pauperis treatment under section 1915.³ Therefore, artificial entities such as the estate and trust may not proceed under that section.⁴ Similarly, artificial entities may appear in the federal courts only through licensed counsel.⁵ Since there is no indication that Mr. McCrary is a licensed attorney, he may not represent the David M. McCrary Estate Trust in this case.

3 Rowland v. California Men's Colony, 506 U.S. 194 (1993).

4 Id.

5 Id. at 201-02; Tal v. Hogan, 453 F.3d 1244, 1254 (10^th Cir. 2006), cert. denied, 127 S. Ct. 1334 (2007); see also C.E. Pope Equity Trust v. United States, 818 F.2d 696 F.2d 696 (9^th Cir. 1987) (holding that non-lawyer trustee could not represent trust); Iannoccone v. Law, 142 F.3d 553, 559 (2d Cir. 1998) (holding that non-attorney representative of estate may not proceed pro se in an action by the estate where estate has beneficiaries or creditors other than the representative); Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (same).

The Plaintiff is not eligible to proceed pro se on behalf of the said Estate and Trust under the in forma pauperis statute. Mr. McCrary's application to proceed in any capacity without prepayment of fees⁶ is DENIED. The Plaintiff must pay the entire $350 statutory filing fee within thirty (30) days from the date of this Order, or this case shall be dismissed. Further, if plaintiff inntends to proceed in this case, he must be represented by licensed counsel. Accordingly, it is hereby ORDERED that Plaintiff must obtain counsel in order to proceed, and counsel must enter an appearance within thirty (30) days after the date of this Order.

6 Docket no. 1, filed May 31, 2007.