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Ellerd v. Pintabian Horse Registry, Inc.

United States District Court, M.D. Tennessee, Nashville Division

December 31, 2014

MICHAEL ELLERD, Plaintiff,
v.
PINTABIAN HORSE REGISTRY, INC., et. al., Defendants.

REPORT AND RECOMMENDATION

JOE B. BROWN, Magistrate Judge.

Pending before the Court are several motions (Docket Entry (DE) 30; 33; 65; and 69). As explained below, the Magistrate Judge RECOMMENDS that the Plaintiff's complaint (DE 1) on behalf of International Pinto-Arabian Registry, Inc. be DISMISSED WITHOUT PREJUDICE and that the remaining motions (DE 30; 33; 65; and 69) be TERMINATED AS MOOT.[1]

I. Background and Procedural History

The pro se Plaintiff filed his complaint on behalf of "Michael Ellerd d.b.a. International Pinto-Arabian Registry, Inc. (IPAR)" (DE 1). By Order dated January 29, 2014, the case was referred to the Magistrate Judge. (DE 5). The Plaintiff amended his complaint, dropping IPAR as a Plaintiff. (DE 20). However, on March 27, 2014, the Magistrate Judge cautioned the Plaintiff that "if during the case it appears the Plaintiff is in fact representing [IPAR] without an attorney, the Plaintiff may face sanctions under 28 U.SC. ยง 1927." (DE 21, p. 1).

Next, the Plaintiff filed a Motion for Declaratory Judgment or Restraining Order and then a Motion for Default Judgment. (DE 30; 38). After a flurry of filings, the Magistrate Judge again cautioned the Plaintiff on May 06, 2014 that "[i]f it turns out that [the Plaintiff] is proceeding on behalf of the corporation, his case may be subject to dismissal and he may be subject to sanctions." (DE 45, p. 2). The Magistrate Judge likewise cautioned the Defendants that their corporation, Pintabian Horse Registry, must be "represented by an attorney or... it may risk the Clerk entering a default as to the corporate Defendant." (DE 45, p. 2).

The Clerk of Court then denied the Plaintiff's Motion for Default Judgment (DE 38) as to Defendant Rozanne Rector (Ms. Rector) and entered default against Pintabian Horse Registry, Inc. because the Defendant corporation had not responded through an attorney. (DE 52). The Clerk informed the Plaintiff that he could file for default judgment against Pintabian Horse Registry, but not Ms. Rector due to her pending Motion to Dismiss. (DE 52). The Plaintiff, however, never filed such a motion and instead filed another Motion for Default against Ms. Rector, which the Clerk denied. (DE 68; 70). In his Motion for Default, the Plaintiff requested that:

[I]t also be ordered by the Court that the Defendant cease any further business activities proclaiming that Federal or State Law require all customers must do business with the corporate defendant and to cease threatening customers in acts of retaliation, simply by choosing to register their horse with any other lawful horse registry.... I am much more interested in the defendant's ceasing their threatening method of doing business, by telling the customers that the law requires that they must do business with the Defendants only and that by law they must pay any price they charge.

(DE 68, p. 5). In an Order dated November 25, 2014 (the final Order), the Magistrate Judge noted the Plaintiff's continued attempt to "represent the interests of IPAR, against the Magistrate Judge's orders...." (DE 74, p. 2). The Magistrate Judge explained that "[i]t has been the law for the better part of two centuries..., that a corporation may appear in the federal courts only through licensed counsel." Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02 (1993) (citation omitted); (DE 74, p. 1). He informed the Plaintiff that in light of the cautionary March 27 and May 06 Orders as well as the final Order, the Plaintiff had "reached three strikes." (DE 74, p. 2). The Magistrate Judge also informed the Defendants that their "lack of corporate representation is not tolerable." (DE 74, p. 2). He gave the parties "thirty days to have attorneys enter an appearance for their respective corporations, or to otherwise notify the Court of settlement." (DE 74, p. 2). Otherwise, the Magistrate Judge informed the parties that he would recommend dismissal. (DE 74, p. 1).

To date, neither party has had an attorney enter an appearance or informed the Court of a settlement. The motions that are pending are the Plaintiff's Motion for Declaratory Judgment or Restraining Order (DE 30), the Defendant's Motion to Dismiss (DE 33), the Defendant's Motion for a More Definite Statement (DE 65), and the Plaintiff's Motion for Waiver. (DE 69).

II. Standard of Review

Pursuant to Federal Rule of Civil Procedure (FED. R. CIV. P.) 41(b):

When contemplating dismissal of an action under Rule 41(b), a court must consider: (1) whether the party's failure to cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dilatory conduct of the party; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered.

Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999) (citation omitted). None of these factors are considered dispositive. Mulbah v. Detroit Bd. of Educ., ...


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