Miao v. Caie Foods Partnership, Ltd.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 AI HUA MIAO, et al., Case No. 3:22-CV-00463-MMD-CLB

5 Plaintiffs, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v.

7 CAIE FOODS PARTNERSHIP, LTD., et al., 8 Defendants. 9 10 Plaintiff Ai Hua Miao (“Miao”) commenced this action against Caie Foods 11 Partnership, Ltd. and Caie Foods Production, LLC (collectively “Defendants”) on October 12 20, 2022. (ECF No. 1.) On November 17, 2022, Defendants filed an answer to Miao’s 13 complaint. (ECF No. 11.) Thereafter, on March 28, 2023, Miao filed a first amended 14 complaint, (ECF No. 30), which Defendants answered on April 12, 2023, (ECF No. 31). 15 On July 12, 2024, Defendants’ counsel, Flynn Giudici, PLLC, filed a motion to 16 withdraw as counsel. (ECF No. 56.) On July 31, 2024, the Court granted Defense 17 Counsel’s motion to withdraw as counsel and ordered Defendants to file a substitution of 18 counsel on or before August 30, 2024. (ECF No. 57.) The Court advised Defendants that 19 corporations may only appear in federal court through an attorney. (See id. (citing United 20 States v. High Country Broadcasting Co., Inc., 3 F.3d 1244 (9th Cir. 1993); Licht v. 21 America West Airlines, 40 F.3d 1058 (9th Cir. 1994).) Defendants failed to file a 22 substitution of counsel, so the Court sua sponte granted Defendants an extension of time 23 to October 3, 2024 to do so. (ECF No. 59.) The Court again advised Defendants that it 24 may only appear in federal court through an attorney, and additionally advised 25 26

27 1 This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate 1 Defendants that if substitute counsel had not entered an appearance by October 3, 2024, 2 the Court would issue a Report and Recommendation that Defendants’ answer be 3 stricken, and a default be entered. (Id.) To date, a substitution of counsel has not been 4 filed. 5 As discussed, Defendants were advised on numerous occasions that a corporation 6 may only appear in federal court when represented by counsel. (See ECF Nos. 57, 59.) 7 The law is clear in the Ninth Circuit to that effect. As the Court of Appeals held in U.S. 8 High Country Broadcasting Co., Inc., 3 F.2d at 1245: “[a] corporation may appear in 9 federal court only through licensed counsel,” citing Rowland v. California Men's Colony, 10 506 U.S. 194, 202 (1993) and 28 U.S.C. § 1654. 11 The language of the Ninth Circuit's decision in the America West Airlines case is 12 also unequivocal, “Corporations and other unincorporated associations must appear in 13 court through an attorney.” In re America West Airlines, 40 F.3d 1058, 1059 (9th Cir. 14 1994). See also C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697–98 (9th Cir. 15 1987); Church of the New Testament v. United States, 783 F.2d 771, 77–74 (9th Cir. 16 1986). 17 There can be no dispute that a corporate entity may proceed in federal court only 18 when represented by licensed counsel. A corporation simply may not proceed pro se. 19 Defendants have been repeatedly advised of their obligation to defend this action 20 through licensed counsel. Due to the failure of Defendants to obtain substitute counsel, 21 the Court recommends that Defendants’ answer, (ECF No. 31), be stricken and a default 22 be entered against Defendants by reason of their failure to “otherwise defend” this action. 23 Fed. R. Civ. P. 55(a). 24 The parties are advised: 25 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 26 Practice, the parties may file specific written objections to this Report and 27 Recommendation within fourteen days of receipt. These objections should be entitled 4 | accompanied by points and authorities for consideration by the District Court. 2 2. This Report and Recommendation is not an appealable order and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s judgment. 5] oI. RECOMMENDATION 6 IT IS THEREFORE RECOMMENDED that Defendants’ answer, (ECF No. 31), be 7| STRICKEN. 8 IT IS FURTHER RECOMMENDED that a default be entered against Defendants byreason of their failure to “otherwise defend” this action. Fed. R. Civ. P. 55(a). 10 DATED: October 7, 2024. 11 : p .

12 13 UNITED STATES\MAGISTRATE JUDGE

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