Opinion
20-CV-1371 (CM)
03-05-2020
JAPANESE JUICES LLC; FREDERICK D. PINA, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.
ORDER :
Plaintiff Frederick D. Pina brings this action pro se on behalf of himself and his company, Japanese Juices LLC. He submits an application to proceed in forma pauperis (IFP), in which he signs the form, and lists Japanese Juices as the sole plaintiff. Accordingly, the Court directs Pina to submit within thirty days of the date of this order a new IFP application, in which he lists himself as the plaintiff. The Court also dismisses without prejudice Japanese Juices, LLC.
DISCUSSION
"[A]n individual generally has the right to proceed pro se with respect to his own claims or claims against him personally," or to be represented by a licensed attorney. Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 132 (2d Cir. 2009); 28 U.S.C. § 1654 ("[P]arties may plead and conduct their own cases personally or by counsel."). But "an individual who is not licensed as an attorney" cannot appear on another's behalf. United States v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) ("[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause.").
A limited liability company (LLC) can appear in federal court only through a licensed attorney. Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (Section 1654 does not permit "unlicensed laymen to represent anyone else other than themselves."). "Where a lay individual chooses to accept the advantages of incorporation, he or she must also bear the legal burdens of that incorporation, including the requirement to have an attorney present the corporation's legal claims." Samuel Adams Enterprises, LLC v. Mountain One Bank, No. 13-CV-5151 (NGG) (LB), 2013 WL 6712566, at *2 (E.D.N.Y. Dec. 18, 2013). Thus, in Lattanzio, the Court of Appeals held that where the sole member of an LLC was not an attorney, he could not represent the LLC, even though it had no other members.
Because Pina does not indicate that he is an attorney admitted to practice in this Court, he cannot pursue claims on behalf of Japanese Juices without counsel, even if he is the sole member of the LLC. The Court therefore dismisses without prejudice all claims asserted by Japanese Juices, LLC. Pina can only proceed pro se in this action to pursue his own claims; he cannot pursue claims on behalf of an LLC.
Because Pina submitted the IFP application captioned for Japanese Juices, and the Court has dismissed this plaintiff, he is directed to resubmit the IFP application, listing himself as the plaintiff. If Pina submits the IFP application, it should be labeled with docket number 20-CV-1371 (CM). If the Court grants the IFP application, Pina will be permitted to proceed without prepayment of fees. See 28 U.S.C. § 1915(a)(1). If Plaintiff complies with this order, the case shall be processed in accordance with the procedures of the Clerk's Office. If Plaintiff fails to comply with this order within the time allowed, the action will be dismissed. No summons shall issue at this time.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
Plaintiff is directed to submit the attached IFP application within thirty days of the date of this order.
The Court dismisses without prejudice Japanese Juices, LLC. See 28 U.S.C. § 1654.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant demonstrates good faith when seeking review of a nonfrivolous issue). SO ORDERED. Dated: March 5, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge __________ (full name of the plaintiff or petitioner applying (each person must submit a separate application)) -against- __________ (full name(s) of the defendant(s)/respondent(s)) ___ CV __________( ) ( )
(Provide docket number, if available; if filing this with your complaint, you will not yet have a docket number.)
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS
I am a plaintiff/petitioner in this case and declare that I am unable to pay the costs of these proceedings and I believe that I am entitled to the relief requested in this action. In support of this application to proceed in forma pauperis (IFP) (without prepaying fees or costs), I declare that the responses below are true: 1. Are you incarcerated? [ ] Yes [ ] No (If "No," go to Question 2.)
I am being held at: __________2. Are you presently employed? [ ] Yes [ ] No
Do you receive any payment from this institution? [ ] Yes [ ] No
Monthly amount: __________
If I am a prisoner, see 28 U.S.C. § 1915(h), I have attached to this document a "Prisoner Authorization" directing the facility where I am incarcerated to deduct the filing fee from my account in installments and to send to the Court certified copies of my account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b). I understand that this means that I will be required to pay the full filing fee.
If "yes," my employer's name and address are:3. In addition to your income stated above (which you should not repeat here), have you or anyone else living at the same residence as you received more than $200 in the past 12 months from any of the following sources? Check all that apply.
Gross monthly pay or wages: __________
If "no," what was your last date of employment? __________
Gross monthly wages at the time: __________
(a) Business, profession, or other self-employment [ ] Yes [ ] No
(b) Rent payments, interest, or dividends [ ] Yes [ ] No
(c) Pension, annuity, or life insurance payments [ ] Yes [ ] No4. How much money do you have in cash or in a checking, savings, or inmate account? 5. Do you own any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value, including any item of value held in someone else's name? If so, describe the property and its approximate value: 6. Do you have any housing, transportation, utilities, or loan payments, or other regular monthly expenses? If so, describe and provide the amount of the monthly expense: 7. List all people who are dependent on you for support, your relationship with each person, and how much you contribute to their support (only provide initials for minors under 18): 8. Do you have any debts or financial obligations not described above? If so, describe the amounts owed and to whom they are payable: Declaration: I declare under penalty of perjury that the above information is true. I understand that a false statement may result in a dismissal of my claims. __________
(d) Disability or worker's compensation payments [ ] Yes [ ] No
(e) Gifts or inheritances [ ] Yes [ ] No
(f) Any other public benefits (unemployment, social security, food stamps, veteran's, etc.) [ ] Yes [ ] No
(g) Any other sources [ ] Yes [ ] No
If you answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
If you answered "No" to all of the questions above, explain how you are paying your expenses:
Dated
__________
Signature __________
Name (Last, First, MI) __________
Prison Identification # (if incarcerated) __________
Address __________
City __________
State __________
Zip Code __________
Telephone Number
__________
E-mail Address (if available)