United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION
PHAM UNITED STATES MAGISTRATE JUDGE.
the court is defendants Jerry Biddle, John McClain, and
Roxanna Gumucio's motion to dismiss. (ECF Nos. 29, 30,
31.) For the following reasons, it is recommended that the
motion to dismiss be granted in part and denied in part.
PROPOSED FINDINGS OF FACT
Last Minute Cuts, a limited liability company organized under
Tennessee law, and Quannah Harris filed this lawsuit against
Jerry Biddle, John McClain, and Roxanna Gumucio on September
14, 2018. (Complaint, ECF No. 1.) Plaintiffs have amended
their complaint twice. (First Am. Compl, ECF No. 10; Second
Am. Compl., ECF No. 21.) The following findings of fact are
based on the well-pleaded allegations in the second amended
complaint and the exhibits attached to the complaint. (Second
Am. Compl., ECF No. 21.) Consistent with the pro se
pleading standard and Federal Rule of Civil Procedure
12(b)(6), the court has construed the factual averments in
the complaint liberally and accepts all well-pleaded
allegations as true for purposes of the present motion. It is
worth noting the defendants have denied the wrongdoing
alleged in the complaint. (ECF No. 26.)
Harris is a barber in Memphis. (Id. at 1.) Harris
owns and operates a barbershop, Last Minute Cuts, LLC.
(Id. at 2.) Barbershops in Tennessee are regulated
by the State Board of Cosmetology and Barber Examiners
(“the Board”), a part of the Tennessee Department
of Commerce and Insurance. (Id. at 11.) Jerry Biddle
and John McClain are investigators for the Board.
(Id. at 2.) Roxana Gumucio is the Executive Director
of the Board. (Id.)
allege that, for two decades, Biddle has demanded money and
sexual favors from Harris and the owners of other businesses
regulated by the Board in exchange for favorable inspection
reports. (Id. at 3.) On July 30, 2014, Biddle and
McClain wrote and submitted an unfavorable inspection report
for Last Minute Cuts based largely on supposedly unsanitary
conditions at the facility. (Id. at 11-13.) Biddle
and McClain did not provide this inspection report, or an
associated notice of violation, to Last Minute Cuts and
forged the signature of an employee of the business on both
documents. (Id. at 2-3.) Later, Biddle submitted a
report that claimed Last Minute Cuts was not open for a
follow-up inspection. (Id. at 16.) However, Last Minute
Cuts was open for inspection when Biddle claimed it was
closed, and in fact was inspected by another investigator for
the Board that day. (Id. at 3.) The plaintiffs claim
that Biddle and McClain's falsified inspection reports
were submitted “as a result of [Harris] not providing
money or sexual favors” to Biddle. (Id. at 4.)
The plaintiffs further allege that Biddle made sexual and
offensive statements to Harris during a 2017 inspection.
(Id. at 3.)
September 17, 2017, a hearing regarding Last Minute
Cuts's licensure was held before an administrative law
judge (“ALJ”) employed by the Board.
(Id. at 2.) At the hearing, Gumucio submitted the
falsified documents created by Biddle and McClain to the ALJ.
(Id.) Gumucio knew that the documents were falsified
when she submitted them to the ALJ. (Id.) As a
result of the hearing, the Board took some form of
disciplinary action against Last Minute Cuts, though it is
unclear from the complaint exactly what action was taken.
(Id. at 4.)
allege that the defendants have violated their constitutional
rights to procedural and substantive due process. As such,
plaintiffs bring suit against each of the defendants in their
individual capacities for money damages under 42 U.S.C.
§ 1983 and seek attorney's fees under 42 U.S.C.
§ 1988. Although there is a passing reference to state
law claims in the jurisdiction section of the complaint, it
does not appear that plaintiffs have brought any claims other
than ones under § 1983. Defendants have moved to dismiss
under Rule 12(b)(6) for failure to state a claim upon which
relief can be granted. (ECF No. 30.)
PROPOSED CONCLUSIONS OF LAW
Claims Brought by Harris on Behalf of Last Minute
the court can address the defendants' motion to dismiss,
there is a threshold issue. Harris purports to assert claims
on behalf of an LLC in this suit. (Second Am. Compl., ECF No.
21.). Neither party has raised the issue of whether Harris,
as a non-lawyer, may appropriately do so.
Rule of Civil Procedure 17(b)(2) requires federal courts to
look to state law to determine a corporate entity's
capacity to sue or be sued. Fed.R.Civ.P. 17(b)(2). Under
Tennessee law, an LLC, like a corporation, is treated as if
it is a separate legal person distinct from its owners and
officers. See Tenn. Code Ann. § 48-249-104.
This rule applies even if an LLC has only one owner or only
one officer. Collier v. Greenbrier Developers, LLC,
358 S.W.3d 195, 200 (Tenn. Ct. App. 2009). The effect of this
is that a claim on behalf of an LLC is treated as if it
belongs to the LLC, not the LLC's owner. Cf. Keller
v. Estate of McRedmond, 495 S.W.3d 852, 866 (Tenn.
in federal court are governed by 28 U.S.C. § 1654. The
Sixth Circuit has interpreted § 1654 to generally
prohibit pro se litigants from asserting claims for
persons other than themselves in federal court. Olagues
v. Timken, 908 F.3d 200, 203 (6th Cir. 2018)
(“[W]e have consistently interpreted § 1654 as
prohibiting pro se litigants from trying to assert
the rights of others.”). Because a corporation is a
separate legal entity from its shareholders, § 1654
prohibits pro se litigants from asserting claims on
behalf of a corporation in federal court. Id. At 202
(“[A] pro se plaintiff cannot represent the
interests of a company. . . .”). Since Tennessee law
treats an LLC as being a separate legal person from its
owner, the same logic bars the owner of an LLC from asserting
claims on its behalf in court pro se. The
appropriate response for a court presented with claims
brought by a pro se litigant on behalf of some other
person is generally to dismiss the claims without prejudice.
Zanecki v. Health All. Plan of Detroit, 576
Fed.Appx. 594, 595 (6th Cir. 2014).
the court is not required to consider arguments that parties
have not raised in their briefs. Dorris v. Absher,
179 F.3d 420, 425 (6th Cir. 1999). There are three reasons
the court does so here. First, judges are obliged to prevent
the unauthorized practice of law. Zanecki, 576
Fed.Appx. at 595. Non-lawyer representation of others raises
unauthorized practice of law concerns. Id. Second,
the purpose of the rule prohibiting non-lawyers from bringing
claims on behalf of others is to protect the interests of
those before the court. Olagues, 908 F.3d at 203.
Allowing a pro se litigant to bring claims on behalf
of an LLC would present fair representation problems. See
Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423,
1427 (7th Cir. 1985). An LLC may have multiple owners, each
with an interest in the company. See Tenn. Code Ann.
§ 48-249-303. Representation by one owner may not fairly
protect the interests of other owners. Even when an LLC has
only one owner, other stakeholders in the LLC, like its
creditors or employees, may still need fair representation of
their interests. Scandia Down, 772 F.2d at 1427.
Third, some courts have considered non-lawyer representation
of others to present standing concerns. See First
Hartford Corp. Pension Plan & Tr. v. United States,
194 F.3d 1279, 1291 (Fed. Cir. 1999) (“[P]ro se actions
by non-attorneys on behalf of corporations fail for lack of
standing.”); Managing Members of Edgewood MHP
Partners, LLC. v. Non-Managing Members of Edgewood MHP
Partners, LLC., No. 18-2256-TLP-dkv, 2018 WL 3966990, at
*2 (W.D. Tenn. June 26, 2018), report and recommendation
adopted sub nom., 2018 WL 3966278 (W.D. Tenn. Aug. 17,
2018). Standing is ...