2:07-cv-01155 | E.D.N.Y | Mar 5, 2008
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
_____________________ o N 07-CV-1155 (JFB) _____________________ M ICHAEL O BERSTEIN , D/B/A, N EW Y ORK S OLAR A UTHORITY , Plaintiff, VERSUS S UN P OWER C ORPORATION , P LUTO A CQUISITION C OMPANY , LLC, C YPRESS S EMICONDUCTOR C ORPORATION , P OWERLIGHT C ORPORATION , AND T HOMAS L. D INWOODIE , Defendants. ___________________ MEMORANDUM AND ORDER March 5, 2008 ___________________ J OSEPH F. B IANCO , District Judge: corporation and may not proceed pro se . In opposition, plaintiff argues that it may Plaintiff pro se “Michael Oberstein, proceed pro se because it is a sole D/B/A, New York Solar Authority” proprietorship. For the reasons set forth (“plaintiff”) filed the instant antitrust action below, the Court agrees with plaintiff and on March 19, 2007 against defendants denies defendants’ motion. SunPower Corporation, Pluto Acquisition Company, LLC, Cypress Semiconductor Corporation, and Thomas L. Dinwoodie (collectively, “defendants”). Presently before the Court is defendants’ motion to dismiss the case on the grounds that plaintiff is a
I. B ACKGROUND Further, the Credit Application provided the applicant the opportunity to classify itself A. Formation of New York Solar Authority as a either a “corporation,” “proprietorship,” or “partnership.” ( Id. ) Oberstein checked the On March 19, 2003, Michael Oberstein box next to “proprietorship.” ( Id. ) (“Oberstein”) completed a Business Certificate certifying that he was “conducting D. New Jersey Litigation or transacting business under the name or designation of” New York Solar Authority On January 31, 2007, NYSA filed a pro se (“NYSA”). ( See Business Certificate, dated complaint in the District of New Jersey March 19, 2003.) The Business Certificate against defendants (the “New Jersey indicated that NYSA was conducting its Complaint”). ( See Complaint filed in District business at 65-59 Parsons Boulevard in of Jersey, filed January 31, 2007.) The instant Flushing, New York (the “Queens Address”). complaint and the New Jersey complaint are ( Id. ) The Business Certificate also indicated virtually identical, except that the New Jersey that Oberstein resided at the Queens Address. Complaint was filed by NYSA, while the ( Id. ) instant complaint was filed by “Michael
Oberstein, D/B/A, New York Solar B. Formation of New York Solar Authority Authority.” Ltd. The Docket Sheet for the New Jersey On May 28, 2003, Oberstein filed a Complaint contains the following entry for Certificate of Incorporation with the State of February 6, 2007: “CLERK’S OFFICE New York for New York Solar Authority Ltd. QUALITY CONTROL MESSAGE: Please be (“NYSA Ltd.”). (Certificate of Incorporation advised although you as an individual are of NYSA Ltd., dated May, 28, 2003, at Article entitled to proceed pro se, a corporation must 2.) The “office address” of NYSA Ltd. is be represented by counsel. . . .” ( See Docket designated as the Queens Address. The Sheet in Case No. 2:07-cv-00531, at Entry “incorporator” of NYSA Ltd. is listed as Elsie dated 2/06/07.) By Order dated March 21, Sanchez, located at 45 John Street, Suite 711, 2007, NYSA voluntarily dismissed the New in New York, New York (the “Manhattan Jersey Complaint without prejudice. ( Id. at Address”) ( Id. at Article 3.) Entry dated 3/21/07.)
C. Credit Application E. The Instant Complaint On December 4, 2005, Oberstein The complaint in this action was filed on completed a Credit Application with March 19, 2007 and provides the Queens defendant SunPower Corporation. ( See Credit Address for plaintiff, which is identified in the Application, dated December 4, 2005.) introductory paragraph as a “sole Oberstein designated the “Legal Company proprietorship duly registered in the County of Name”on the Credit Application as “New Queens, New York. . . .” (Compl. at 1.) York Solar Authority” and provided the Queens Address as the company’s address. ( Id. )
F. Entity Information III. D ISCUSSION As of May 23, 2007, the New York State A. Legal Standard Department of State listed NYSA Ltd. as an “active” corporation, the registered agent for Section 1654 of Chapter 28 of the United which is Spiegel & Utrera, P.A., P.C., located States Code states that “[i]n all courts of the at the Manhattan Address. (NYS Dept. of United States the parties may plead and State Printout, dated May 23, 2007.) conduct their own cases personally or by
counsel as, by the rules of such courts, II. P ROCEDURAL H ISTORY respectively, are permitted to manage and conduct causes therein.” The Second Circuit By letter dated April 16, 2007, defendants “has interpreted 28 U.S.C. § 1654, which requested that the Court hold a pre-motion governs appearances in federal court, to allow conference in anticipation of filing a motion two types of representation: ‘that by an to dismiss the complaint on two grounds: (1) attorney admitted to the practice of law by a plaintiff is a corporation and may not proceed governmental regulatory body and that by a pro se ; and (2) the complaint fails to state a person representing himself.’” Lattanzio v. claim upon which relief may be granted Galen Institute, Inc. , 481 F.3d 137, 139 (2d pursuant to Federal Rule of Civil Procedure Cir. 2007) (quoting Eagle Assocs. v. Bank of 12(b)(6). By letter dated May 15, 2007, Montreal , 926 F.2d 1305, 1308 (2d Cir. plaintiff responded to this request (the “May 1991)) (internal quotation marks omitted). In 15 Letter”). The Court held the pre-motion particular, “it is well-settled law that a conference on May 16, 2007 and set a corporation may appear in the federal courts schedule for defendants to brief the first only through licensed counsel. . . .” Grace v. argument, which is the subject of the instant Bank Leumi Trust Co. of N.Y. , 443 F.3d 180, motion. At the conference, the Court stated 187 (2d Cir. 2006); see Pecarsky v. that it would set a briefing schedule for the Galaxiworld.com Ltd. , 249 F.3d 167, 172 (2d second argument if defendants did not prevail Cir. 2001) (“As a corporation, appellant, on this motion. Galaxiworld, could only appear with
counsel.”); Eagle Assocs. , 926 F.2d at 1308 Defendants filed the instant motion on (“[W]e long have required corporations to [1] May 31, 2007. Plaintiff responded by letter appear through a special agent, the licensed dated June 13, 2007. Defendants submitted attorney.”); Bell v. South Bay European their reply on June 22, 2007. Corp. , 486 F. Supp. 2d 257, 260 (S.D.N.Y.
2007) (“[A] lay person may not represent an entity.”); Kahn v. Gee Broadcasting, Inc. , No. 07-CV-1370, 2007 U.S. Dist. LEXIS 29390, at *3 (E.D.N.Y. Apr. 20, 2007) (“A pro se plaintiff may not represent the interests of another individual or corporate entity in a
civil proceeding.”). In particular, this rule [2] needlessly multiplicative. In “has been applied to dismiss any action or addition to lacking the motion filed by a corporation purporting to act professional skills of a lawyer, pro se.” Grace , 443 F.3d at 192 (noting that the lay litigant lacks many of “where a corporation repeatedly fails to t h e at t or n ey ’ s e t hi c al appear by counsel, a default judgment may be responsibilities. . . . entered against it pursuant to Rule 55”) (citations and quotation marks omitted); see Lattanzio , 481 F.3d at 139 (quoting Jones v. Mercu-Ray Indus., Inc., v. Bristol-Myers Co. , Niagara Frontier Transp. Auth. , 722 F.2d 20, 392 F. Supp. 16, 20 (S.D.N.Y. 1974), aff’d , 22 (2d Cir. 1983)). 508 F.2d 837 (2d Cir. 1974) (dismissing antitrust complaint of corporate plaintiff not However, the Second Circuit has also represented by counsel). recognized that “some courts allow sole
proprietorships to proceed pro se ” because “a The Second Circuit has specifically sole proprietorship has no legal existence explained the reasoning for this prohibition: apart from its owner.” Lattanzio , 481 F.3d at 140; see, e.g., Hudson Pak Est. v. Shelter for [t]he principal rationale for the Homeless, Inc. , No. 05-2212-cv, 2007 o r d i n a r i l y r e q u i r i n g U.S. App. LEXIS 6111, at *3 (2d Cir. Mar. representation by a licenced 14, 2007) (“The district court informed attorney is that “the conduct of Reuben that a corporation is required to be litigation by a nonlawyer represented by counsel. On May 20, 1993, creates unusual burdens not however, upon Reuben’s representation to the only for the party he court that HPE was a sole proprietorship and represents but as well for his not a corporation, the district court permitted adversaries and the court. The HPE’s attorney to withdraw and allowed lay litigant frequently brings Reuben to file pro se appearances in the name pleadings that are awkwardly of ‘Lawrence Reuben d/b/a Hudson Pak drafted, motions that are Establishment.’”); Fitzpatrick v. Sony-BMG inarticulately presented, Music Entertainment, Inc. , No. 07 Civ. 2933, p r o c e e d i n g s t h a t a r e 2007 U.S. Dist. LEXIS 60238, at *1
(S.D.N.Y. Aug. 15, 2007) (noting that plaintiff is sole proprietorship proceeding pro se ); Goktepe v. Lawrence , No. 3:03cv89, 2005 [2] The Second Circuit has “extended this reasoning U.S. Dist. LEXIS 1689, at *2 (D. Conn. Jan. to pa rtn erships and sing le shareholder 26, 2005) (“[A] sensible exception exists corporations, as well as to shareholders who file when an entity is a sole proprietorship, derivative suits,” and to limited liability because a sole proprietorship has no legal companies. Lattanzio. , 481 F.3d at 139-40; see, existence apart from its owner. Accordingly, e.g., Pattonium, Inc. v. J&D Assocs. , No. 07-Civ. many courts have held that ‘sole 6204, 2007 U.S. Dist. LEXIS 74856, at *1-*2 (noting that prohibition on non-attorneys proprietorships may proceed pro se in federal representing corporations “appl[ies] with equal
court.”) (citation and quotation marks force to a limited liability company, including one omitted); Hudson Valley Black Press v. with a single member who seeks to represent the Internal Revenue Serv. , 307 F. Supp. 2d 543, entity”). 544 (S.D.N.Y. 2004) (noting that plaintiff is plaintiff states that NYSA Ltd. is a “dormant “a sole proprietorship appearing pro se in this entity, that has not transacted any business action”); Kraebel v. Barklee Realty Co. , 90 activity since its inception, and it is not a Civ. 4391, 2002 U.S. Dist. LEXIS 71, at *14 party to this action.” (Pl.’s Opp. ¶ 4.) n.5 (S.D.N.Y. Jan. 3, 2002) (“Kraebel has Plaintiff points out, for instance, that always acted pro se in this case. Kraebel’s Oberstein specifically checked the box next to pro se status is acceptable because sole “proprietorship” on the Credit Application. proprietorships may proceed pro se in federal court.”). The Court has carefully reviewed the
evidence defendants proffer to demonstrate B. Application that NYSA Ltd., a corporation, is the true plaintiff in this action. However, as set forth Here, defendants urge the Court to dismiss below, none of this evidence meaningfully this case on the grounds that pro se plaintiff is contradicts plaintiff’s argument that a corporation, and not a sole proprietorship, as Oberstein’s sole proprietorship is the plaintiff plaintiff contends. However, as set forth here. below, plaintiff has sued as a sole proprietorship and has provided documentary For instance, defendants point out that evidence as to the existence of the sole Oberstein filed the identical action in the proprietorship and its interaction with one of District of New Jersey where the named the defendants in this case. Thus, the Court plaintiff was NYSA. However, the plaintiff in rejects defendants’ argument and finds there the New Jersey Complaint was NYSA – not is a sufficient basis for plaintiff to proceed pro NYSA Ltd. Moreover, like the instant se as a sole proprietor. complaint, the New Jersey Complaint
specifically identified plaintiff as a sole As a threshold matter, defendants do not proprietorship. In refiling here, and renaming dispute that, under the law, sole proprietors the plaintiff “Michael Oberstein, D/B/A, New may proceed pro se in federal court. In York Solar Authority,” Oberstein more addition, defendants do not dispute that up closely conformed his complaint to those filed until the incorporation of NYSA Ltd., on behalf of sole proprietorships in this Oberstein was a sole proprietor of an entity Circuit. See Hudson Pak Est. , U.S. App. called NYSA. Instead, defendants essentially LEXIS 6111, at *3 (noting that district court argue that NYSA became NYSA Ltd., a permitted “Lawrence Reuben d/b/a Hudson corporation, and that NYSA Ltd. is truly the Pak Establishment” to proceed pro se as sole plaintiff in this action. However, plaintiff proprietorship). Thus, the Court finds that the [3] contends that NYSA and NYSA Ltd. are New Jersey Complaint in no way undermines wholly separate entities. In particular, plaintiff’s contention that NYSA – a sole
proprietorship – is the plaintiff here. inconsistent with plaintiff’s claim that NYSA no basis to preclude plaintiff from proceeding and NYSA Ltd. are separate entities. pro se as a sole proprietor.
In addition, defendants note that the IV. C ONCLUSION address on the Articles of Incorporation of NYSA Ltd. (the Queens Address) also For the foregoing reasons, the Court appears on the complaint. The Court finds DENIES defendants’ motion. The parties that – at most – this matching address shows shall abide by the following briefing schedule that NYSA and NYSA Ltd. are located at the for defendants’ motion to dismiss the same address. In light of defendants’ failure complaint on the grounds that it fails to state to point to any caselaw showing that a a claim upon which relief may be granted: corporation and a sole proprietorship may not Defendants’ motion is due by April 4, 2008. operate from the same address, the Court finds Plaintiff’s response is due by May 5, 2008. that the repeated appearance of the Queens Defendants’ reply is due by May 15, 2008. Address is unpersuasive evidence that NYSA Ltd. must be the true plaintiff here.
SO ORDERED.
Further, the Court is unpersuaded by defendants’ efforts to minimize the significance of the Credit Application by ______________________ referring to it as “some innocuous document.” JOSEPH F. BIANCO (Defs.’ Reply at 1.) The Credit Application United States District Judge suggests that as of 2005 – and over two years after the formation of NYSA Ltd. – Oberstein Dated: March 5, 2008 was operating a sole proprietorship called Central Islip, New York NYSA and the so-called “innocuousness” of the Credit Application does not diminish this * * * inference.
Plaintiff appears pro se . Attorneys for Finally, with the respect to the question of defendants SunPower Corporation, Pluto whether plaintiff may proceed pro se here, the Acquisition Company, LLC, and Cypress Court rejects defendants’ contention that Semiconductor Corporation are Jeffrey A. plaintiffs’ filings demonstrate that plaintiff LeVee and Jason C. Murray of Jones Day, “does not have the requisite skill or expertise 555 South Flower Street, Fiftieth Floor, Los to properly plead a cause of action, let alone Angeles, California, 90071. Attorney for an antirust [sic] claim.” (Defs.’ Reply at 7.) defendant Thomas Dinwoodie is Sean T. To the extent that plaintiff’s complaint has Burns of Carroll McNulty & Kull LLC, 270 caused defendants “confusion,” (Defs.’ Reply Madison Avenue, New York, New York, at 7), defendants may make that argument to 10016. the Court pursuant to Rules 8 or 12 of the Federal Rules of Civil Procedure in the course of the briefing schedule set forth infra .
In sum, the Court concludes that there is
NOTES
[1] Defendant Thomas Dinwoodie submitted a separate Motion dated May 31, 2007 adopting the arguments set forth in the memorandum of law submitted by the rest of the defendants.
[3] Defendants also point to the New York Plaintiff also refers to NYSA Ltd. as “New York Solar Authority, L.L.C.” (May 15 Letter ¶ 1c.) Department of State’s designating NYSA Ltd. This designation is immaterial to the instant as “active.” Although this designation would motion because limited liability companies are, as appear to undercut plaintiff’s assertion that stated supra , subject to the same rule as regular NYSA Ltd. is “dormant,” it is not necessarily corporations with respect to pro se representation.