Opinion
Civil Action No. 2003-CV-04191.
September 23, 2004
ORDER
NOW, this 23rd day of September, 2004, upon consideration of Going Platinum Inc.'s and Alan Catalan's Motion to Seal, which motion was filed September 26, 2003; upon consideration of Going Platinum Inc.'s and Alan H. Catalan's Cross-Motion to Dismiss, which motion was filed September 26, 2003; upon consideration of Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss, which response was filed October 10, 2003; upon consideration of Going Platinum Inc.'s and Alan Catalan's Motion to Set Aside Entry of Default, which motion was filed September 30, 2003; upon consideration of Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Set Aside Default filed October 16, 2003; it appearing that on September 26, 2003 defendants filed Going Platinum Inc.'s and Alan H. Catalan's Reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss, and in Support of Defendants' Motion to Dismiss, without leave of court, IT IS ORDERED that Going Platinum Inc.'s and Alan Catalan's Motion to Seal is denied. IT IS FURTHER ORDERED that Going Platinum Inc.'s and Alan Catalan's Motion to Set Aside Entry of Default is granted in part, and stricken in part.
In their within motion defendants seek an Order to seal defendants memorandum and answer in opposition to plaintiff's Complaint because a number of the exhibits attached to the answer and memorandum purportedly contain sensitive third-party private and confidential records and information that will likely be republished in the newspaper and on the internet. For the following reasons we deny defendants motion.
Initially, we note that defendants did not file a brief or memorandum of law in support of their motion. Rule 7.1(c) of the Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania provides in pertinent part: "Every motion not certified as uncontested, or not governed by Local Rule 26.1(g), shall be accompanied by a brief containing a concise statement of the legal contentions and authorities relied upon in support of the motion." Any motion that comes before the court without a brief or memorandum of law in support of the motion may be dismissed out of hand for failure to comply with the Local Rules. See United States Fidelity Guaranty Company v. McAuliffe, No. Civ.A. 94-4431, 1996 U.S. Dist. LEXIS 433 (E.D. Pa. Jan. 18, 1996). Accordingly, we deny defendants' within motion on that basis.
It is not the court's responsibility to examine each document to determine whether it is appropriate to keep a particular document or documents from public view. However, a cursory review of the documents defendants seek to seal reveals that a majority of the documents attached to defendants' answer are not the appropriate subject of a sealing Order. Proceedings in this court are part of the public record and unless defendants specifically delineate certain documents, with citation of authority in support of such request, the court will not keep the public from viewing any document filed with the Clerk of Court.
IT IS FURTHER ORDERED that the motion to set aside default filed on behalf of Alan Catalan is granted as unopposed. IT IS FURTHER ORDERED that the default entered September 26, 2003 against defendant Alan Catalan is vacated.
On July 18, 2003 plaintiff Securities and Exchange Commission filed its Complaint in this action against defendants Alan H. Catalan and Going Platinum, Inc., alleging violations of Sections 5(a), 5(c) and 17(a) of the Securities Act, 15 U.S.C. §§ 77e(a) and (c) and 77q(a), Section 10(b) of the Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. § 240.10b-5. In particular, plaintiff alleges that defendants fraudulently offered and sold approximately $2,400,000 in unregistered securities and allegedly misappropriated most of the investor funds.
On July 29, 2003 plaintiff's Complaint was served by personal service on defendants in accordance with Rule 4(e) of the Federal Rules of Civil Procedure. Therefore, defendants' response was required to be filed and served no later than August 18, 2003. By Order of the undersigned dated September 3, 2003, we approved the stipulation of the parties to permit defendants until September 18, 2003 to file a response to plaintiff's Complaint. Defendants did not file either an answer or responsive motion by September 18, 2003. On September 24, 2003 the court entered a Default Notice requiring plaintiff to take action to enter default against defendants by October 6, 2003 or risk possible dismissal of its Complaint for lack of prosecution.
On September 25, 2003 plaintiffs filed its motion for entry of default. On September 26, 2003 the Clerk of Court entered default against defendants on the docket. Later that day, defendants filed an answer to plaintiff's Complaint, a motion to dismiss plaintiff's Complaint and the motion to seal addressed above. On September 30, 2003 defendants filed their motion to set aside entry of default. On October 16, 2003 plaintiff filed its memorandum in opposition to defendants' motion to set aside default.
In plaintiff's memorandum in opposition to defendant's motion to set aside default, plaintiffs assert that they do not oppose vacating the default against defendant Alan Catalan. However, plaintiff does oppose vacating the entry of default against defendant Going Platinum, Inc.
Accordingly, we grant the motion to vacate entry of default against Alan Catalan as unopposed. We address that portion of the motion to vacate of Going Platinum, Inc., below.
IT IS FURTHER ORDERED that the Clerk of Court is directed to vacate the entry of default as against Alan Catalan only.
IT IS FURTHER ORDERED that the motion to set aside default filed on behalf of Going Platinum, Inc., is stricken. IT IS FURTHER ORDERED that the Clerk of Court is directed to strike any filing by Alan Catalan on behalf of Going Platinum, Inc.
Defendants' motion to vacate was filed on behalf of Going Platinum, Inc., and Alan Catalan, personally. Mr. Catalan is purportedly the President of Going Platinum, Inc. Mr. Catalan filed the motion to vacate on behalf of himself and on behalf of the corporation. Mr. Catalan is free to represent himself pro se in this matter. However, Mr. Catalan may not represent the corporation because he is not an attorney.
It is well-settled that corporations cannot appear pro se. Rather, they may only participate in litigation, and appear of record, if represented by an attorney at law. Simbraw, Inc. v. United States of America, 367 F.2d 373 (3d Cir. 1996). In this case, there is no indication that Alan Catalan is an attorney licensed to practice in any state or federal jurisdiction. Thus, he may not represent the corporation as an officer of the corporation. Rather, the corporation must appear through counsel. Accordingly, because Mr. Catalan may not represent the corporation we conclude that there has been no appearance by defendant Going Platinum, Inc. in this case.
Mr. Catalan's filing of motions on behalf of the corporation in this matter may constitute the unauthorized practice of law in violation of Pennsylvania law. See 42 Pa.C.S.A. § 2524. The unauthorized practice of law will not be condoned before this court. We conclude that all the motions filed by Mr. Catalan on behalf of Going Platinum, Inc., are a nullity. Thus, we strike all the filings on behalf of the corporation because it has not appeared in this case. Accordingly, because we strike the motion to set aside the entry of default against the defendant corporation, that entry of default is not set aside and remains in full force and effect.
In addition, we caution Mr. Catalan from making any further filings on behalf of the corporation because that may constitute the unauthorized practice of law and could result in criminal charges.
IT IS FURTHER ORDERED that the Clerk of Court is directed to strike the appearance of Alan Catalan on behalf of Going Platinum, Inc.
IT IS FURTHER ORDERED that Alan Catalan's motion to dismiss is denied. IT IS FURTHER ORDERED that Going Platinum Inc.'s and Alan H. Catalan's Reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss, and in Support of Defendants' Motion to Dismiss is stricken. IT IS FURTHER ORDERED that on or before October 22, 2004 defendant Alan Catalan shall file an answer together with any applicable defenses and counterclaims to plaintiff's Complaint.
A motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss examines the sufficiency of the Complaint.Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84 (1957). In determining the sufficiency of the Complaint the court must accept all plaintiff's well-pled factual allegations as true and draw all reasonable inferences therefrom in favor of plaintiff. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997).
[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.Conley, 355 U.S. at 47, 78 S. Ct. at 103, 2 L. Ed. 2d at 85. (Internal footnote omitted.) "Thus, a court should not grant a motion to dismiss `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Graves, 117 F.3d at 726 citing Conley, 355 U.S. at 45-46, 78 S. Ct. at 102, 2 L. Ed. 2d at 84.
In his motion, defendant frames his attack on plaintiff's Complaint as one of lack of subject matter jurisdiction. However, the substance of defendant's motion is that plaintiff's Complaint is just factually incorrect. Thus, we treat defendant's motion as a Rule 12(b)(6) motion for failure to state a claim. However, contrary to the defendant's protestations, we must apply the standard of review set forth above.
Upon review of plaintiff's Complaint, and taking all the well-pled allegations as true, we conclude that plaintiff has stated a claim upon which relief can be granted. It does not appear beyond a doubt that plaintiff can prove no set of facts in support of its claims which would entitle it to relief. Graves, supra.
Moreover, we decline to review or consider the numerous exhibits which defendant has filed with the court at this time. These exhibits were not made part of plaintiff's Complaint. We are constrained under the Rules of Civil Procedure and the standard of review to limit ourselves to the Complaint and the exhibits attached thereto. The alternative is to treat it as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(b). We decline to convert this motion to dismiss to a summary judgment motion. We will permit the parties to conduct discovery, and after which, defendant will be free to file any appropriate dispositive motion.
It is the sense of this Order that defendant will be permitted to advance any claims or defenses which he may have. However, at this stage of the proceedings, the claims and defenses raised by defendant in his motion to dismiss are not appropriate. Mr. Catalan may proceed pro se in this matter but he is bound by the Federal Rules of Civil Procedure and the rules of law applicable to this case. Contrary to the assertions contained in his filings, the legal and procedural arguments made by plaintiff in its response to defendant's motion to dismiss are not designed to deny defendant his day in court. That day will come, and defendant will be able to assert any legally cognizable claims and defenses at that time.
Pursuant to provisions of Rule 7.1(c) of the Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania "[t]he Court may require or permit further briefs if appropriate." We have already stricken all filings on behalf of Going Platinum, Inc. In addition, for the following reasons, we strike the reply brief on behalf of Alan Catalan.
A reply brief is permitted at the discretion of the court pursuant to the Local Rules. Defendant never sought permission from the court to file his reply brief, and the undersigned did not grant leave. Accordingly, for all the foregoing reasons, we strike defendant's reply brief.
Moreover, in this case defendant's reply brief is 42 pages long, well in excess of the usual length of seven pages which the undersigned permits for reply briefs and 30 pages longer than defendant's original brief in support of his motion to dismiss. A review of the issues raised in the reply brief, while possibly appropriate at a later stage of the proceedings, is not appropriate at this stage of the proceedings.