Lowery v. Hoffman

188 F.R.D. 651, 1999 U.S. Dist. LEXIS 13251, 1999 WL 668724
CourtDistrict Court, M.D. Alabama
DecidedAugust 23, 1999
DocketNo. Civ.A. 98-T-468-N
StatusPublished
Cited by23 cases

This text of 188 F.R.D. 651 (Lowery v. Hoffman) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowery v. Hoffman, 188 F.R.D. 651, 1999 U.S. Dist. LEXIS 13251, 1999 WL 668724 (M.D. Ala. 1999).

Opinion

ORDER

MYRON H. THOMPSON, District Judge.

In this lawsuit, plaintiffs Sue Lowery (the widow of Thomas Lowery and the executrix of his estate) and Wendy Daley (decedent Lowery’s daughter) have brought claims for fraud, misrepresentation, civil conspiracy, wrongful death, and breach of contract, and a claim under the Racketeer Influenced and Corrupt Organizations Act (commonly known as RICO), 18 U.S.C.A. §§ 1961-1968, against defendants Body Energetics, Inc., Triad Holistic Health, Hoffman Enterprises, Inc., T~ Up, Inc., Piedmont Orthopedic Clinic, Inc., Cosmetic Specialty Labs, Otis Hennessee, Allen Hoffman, Donald MacNay, and Ronnie Sheetz. Their claims stem from the defendants’ sale to them of aloe-vera products and treatments that the defendants allegedly guaranteed would cure decedent Lowery of cancer. The plaintiffs settled with Hennessee, Cosmetic Specialty Labs, Allen Hoffman, Hoffman Enterprises, and T-Up, and the court entered a default judgment and damages against MacNay, Sheetz, and Piedmont Orthopedic. The court also entered default judgment against Triad and Body Energetics, and set the issue of damages for submission at a later date.

Now before the court is a motion filed by Robert Kay on behalf of defendants Triad and Body Energetics to set aside the default judgment against these two defendants. Also before the court is motion filed by the plaintiffs to strike everything filed by Kay. For the following reasons, the motions will be granted in part and denied in part.

I. MOTION TO STRIKE

The plaintiffs move to strike all pleadings, motions, briefs, affidavits, and other documents filed by Kay on behalf of defendant Triad and defendant Body Energetics. The plaintiffs contend that Triad and Body Energetics are corporations and therefore must be represented by an attorney. They contend that, because Kay is not an attorney, the court must strike all documents submitted by Kay.

[653]*653Federal Rule of Civil Procedure 12(f), which delineates the general use of a motion to strike, provides that, “Upon motion made by a party ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” (Emphasis added.) The terms of the rule make clear that “[o]nly material included in a ‘pleading’ may be subject of a motion to strike____ Motions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike.” 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.37[2] (3d ed.1999). Therefore, as an initial matter, the motion to strike must be denied as to all non-pleadings, and, in this case, that would be all documents filed by Kay other than Triad’s and Body Energetics’s answers to the complaints. See Fed. R.Civ.P. 7(a) (a “pleading” is “a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served.”).

The court has found no case law indicating whether a Rule 12(f) motion to strike is the proper procedural vehicle for attacking pleadings filed by an improper representative. Nevertheless, the court will construe the motion as one based on assertion of an ‘insufficient defense.’ The plaintiffs contend that the defenses asserted by Triad and Body Energetics are insufficient as a matter of law because they were asserted by a non-attorney. Where the plaintiff moves to strike on the basis of an insufficient defense, the court must determine “whether as a matter of law the defense asserted ... [is] insufficient.” Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser Aluminum & Chemical Corp., 684 F.2d 776, 779 (11th Cir.1982).

It is beyond dispute that a non-attorney may not represent a corporation in federal court. 28 U.S.C.A. § 1654 provides that “[i]n all courts of the United States parties may plead and conduct their own case personally or by counsel.” The “courts have uniformly held that ... § 1654 ... does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney.” Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 202, 113 S.Ct. 716, 721, 121 L.Ed.2d 656 (1993). See National Independent Theatre Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 609 (11th Cir.1984) (“corporations must always be represented by legal counsel”), cert. denied, 471 U.S. 1056, 105 S.Ct. 2120, 85 L.Ed.2d 484, and 474 U.S. 1013, 106 S.Ct. 544, 88 L.Ed.2d 473 (1985); see also K.M.A., Inc. v. General Motors Acceptance Corporation, 652 F.2d 398, 399 (5th Cir.1981)1; Southwest Express Co., Inc. v. Interstate Commerce Commission, 670 F.2d 53, 55 (5th Cir.1982).

Kay argues that this rule is inapplicable to Triad because Triad is not a corporation, partnership, or association. The court agrees. Kay has submitted an affidavit attesting that Triad is a ‘sole proprietorship’ and that he never incorporated Triad. The only evidence offered by the plaintiffs in support of their claim that Triad is a corporation is a letter from Kay’s insurance company which, in passing, refers to Triad as a corporation. Because the insurance company did not insure Triad, but only Kay himself, the company may not have known whether or not Triad is a corporation. The letter therefore is insufficient to establish that Triad is a corporation, especially in light of Kay’s sworn affidavit.

Moreover, because Triad is a sole proprietorship and because it is owned by Kay, Kay may represent it. An individual owner may in general represent a sole proprietorship, for a sole proprietorship and its owner are essentially one and the same.2 [654]*654See, e.g., Clardy v. Sanders, 551 So.2d 1057, 1059 (Ala.) (“Clardy the individual and Clardy Realty, a sole proprietorship, are but a single legal entity.”), cert. denied, 493 U.S. 959, 110 S.Ct. 376, 107 L.Ed.2d 362 (1989); cf. Black’s Law Dictionary 1248 (5th ed.1979) (a sole proprietorship is “A form of business in which one person owns all the assets of the business in contrast to a partnership, trust or corporation. The sole proprietor is solely liable for all the debts of the business.”). Indeed, because Triad and Kay are one and the same, to deny Kay the right to represent Triad would be to deny Kay the right to represent himself as an individual.

The court accordingly will deny the motion to strike all defenses asserted by Triad in the answers filed by Kay. Kay may appear pro se on behalf of Triad (and essentially himself) pursuant to 28 U.S.C.A. § 1654.

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Cite This Page — Counsel Stack

Bluebook (online)
188 F.R.D. 651, 1999 U.S. Dist. LEXIS 13251, 1999 WL 668724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowery-v-hoffman-almd-1999.