Lattanzio v. ComtaLattanzio v. Comta
Douglass M. Connors, Wilson Elser Moscowitz Edelman & Dicker LLP, Stamford, CT, for Defendants-Appellees.
Before WINTER, WALKER, and STRAUB, Circuit Judges.
PER CURIAM.
Jim Lattanzio, pro se, and Galen Institute LLC (“Galen“), a limited liability company formed pursuant to the laws of Connecticut, seek to reinstate thеir appeals of a judgment of the District Court for the District of Connecticut dismissing their claims. Because Lattanzio‘s own appeal is meritless, we deny with prejudice that branch of the motion seeking to reinstate it. Further, because Lattanzio is not an attorney, he cannot represent Galen, notwithstanding that he is Galen‘s sole member. As a result of that defect in representation, we deny without prejudice that branch of the motion seeking to reinstate Galen‘s appeal. In order to renew its motion, Galen must obtain counsel and, within 45 days of thе entry of this opinion, that counsel must file an amended notice of appeal, a notice of appearance, and renewed motion papers.
Lattanzio, who is the sole member and executive director of Galen but not an attorney, originally filеd this action on behalf of himself and Galen. In short, the complaint alleges that defendants improperly refused to accredit Galеn as a massage therapy school. After Lattanzio filed the complaint, Galen obtained counsel to represent its interests.
Aftеr a bench trial, the District Court entered judgment in favor of defendants. As to Lattanzio‘s claims, the District Court found that because Lattanzio had аlways acted on behalf of Galen, which was a separate entity, Lattanzio lacked “any personal relationship with [defendants] which gives rise to a cause of action in [Lattanzio‘s] own right.” Regarding Galen‘s claims, the District Court concluded that they failed on the merits.
If we dismiss an appeal for appellate “default,” we generally may reinstate it for good cause shown or “where manifest injustice would otherwise result.”
To the extent that thе present motion seeks to reinstate the appeal of Lattanzio‘s own pro se claims, the motion is denied with prejudice because Lattanzio‘s claims are meritless, and were properly dismissed by the District Court. See Covington v. City of New York, 171 F.3d 117, 121 (2d Cir.1999). With regard to Galen‘s appeal, we deny the motion without prejudice to renewal because we hold that a sole member limited liability company must be represented by counsel to aрpear in federal court.
We have interpreted
the cоnduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. Thе lay litigant frequently brings pleadings that are awkwardly drafted, motions that are inarticulately presented, proceedings that are needlessly multiplicative. In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney‘s ethical responsibilities. . . .
Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.1983).
This rationale “applies equally to all artificial entities.” Rowland v. Cal. Men‘s Colony, Unit II Men‘s Advisory Coun., 506 U.S. 194, 202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Accordingly, a lay-person may not represent a separаte legal entity such as a corporation. See, e.g., Eagle Associates, 926 F.2d at 1308; Shapiro, Bernstein & Co. v. Cont‘l Record Co., 386 F.2d 426, 427 (2d Cir.1967) (per curiam). We have extended this reasoning to partnerships and single shareholdеr corporations, as well as to shareholders who file derivative suits. See Eagle Associates, 926 F.2d at 1310 (partnership); Jones, 722 F.2d at 23 (single shareholder corporation); Phillips v. Tobin, 548 F.2d 408, 415 (2d Cir.1976) (shareholder derivative suits). Further, the Supreme Court has acknowledged that, “save in a few aberrant cases, the lower courts have uniformly held that
Further, we see no reason to distinguish betweеn limited liability companies and sole member or solely-owned limited liability companies. Although some courts allow sole propriеtorships to proceed pro se, see generally National Independent Theatre Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 610 (11th Cir. 1984), a sole proprietorship has no lеgal existence apart from its owner, see United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983). Unlike a sole proprietorship, a sole member limited liability company is a distinct legal entity that is separate from its owner. For example, in Connecticut, a limited liability company has the power to sue or be sued in its own nаme.
Moreover, in refusing to distinguish between a single shareholder corporation and a multi-shareholder corporation, we havе reasoned that
[t]o allow [the lay individual] to appear pro se in this suit would be allowing him to flout a well-established and purposeful public policy by means of a procedural device. [The lay individual] chose to accept the advantages of incorporation and must now bear the burdens of that incorporation; thus, he must have an attorney present the corporation‘s legal claims.
Jones, 722 F.2d at 23 (quoting Mercu-Ray Indus., Inc. v. Bristol-Myers Co., 392 F.Supp. 16, 20 (S.D.N.Y.1974), aff‘d, 508 F.2d 837 (2d Cir.)). Similarly, a sole member of a limited liability company must bear the burdens that accompany the benefits of the corporate form and may appear in federal court only through a licensed attorney.
Accordingly, to the extent that the motion seeks to reinstate Galen‘s appeal, we DENY it WITHOUT PREJUDICE to renewal after Galen obtains a licensed attorney to represent it. If Galen obtains counsel, counsel must file, within 45 days of the entry of this opinion, аn amended notice of appeal and a notice of appearance, along with the renewed motion. To the extent that the motion seeks to reinstate Lattanzio‘s appeal, we DENY it WITH PREJUDICE.