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Francisco v. Greenpoint Mortgage Funding

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 2, 2010

ARNEL FRANCISCO, ET AL., PLAINTIFFS,
v.
GREENPOINT MORTGAGE FUNDING, INC., ET AL., DEFENDANTS.

ORDER

Plaintiffs are proceeding pro se with a case arising from a mortgage foreclosure. The case was referred to the undersigned pursuant to Local Rule 302(c)(21).

A motion to dismiss has been filed on behalf of defendant Landmark Homes Realty by an individual presenting himself as Rodolfo Ibay, dba Landmark Homes Realty, In Pro Se. The motion is signed by Rodolfo Ibay as defendant. This motion cannot be placed on the court's November 19, 2010 law and motion calendar because the motion was filed less than 28 days prior to the proposed hearing date.*fn1 See Local Rule 230(b). As a general rule, the moving party would be permitted to re-notice the motion for a date that provides proper notice. However, in this instance the motion must be denied because Rodolfo Ibay is not a named defendant in plaintiffs' complaint, and "[a] corporation or other entity may appear only by an attorney." Local Rule 183(a). Unlicensed laypersons, including the owner of a company, the officers of a corporation, the partners of a partnership, and the members of an association, may not represent their entities "pro se." Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993) ("It has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel. . . . [T]hat rule applies equally to all artificial entities.").

The motion filed on behalf of defendant Landmark Homes Realty will be dismissed without prejudice to the filing of a new motion through counsel. Defendant Landmark Homes Realty is cautioned that its failure to appear in a timely manner through counsel could result in a default being entered against it. See United States v. High Country Broadcasting Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) (affirming the district court's entry of default judgment against the corporation when the corporation failed to retain counsel for the duration of the litigation and attempted to proceed through its unlicensed president and sole shareholder).

Accordingly, IT IS ORDERED that the motion to dismiss (Doc. No. 7) filed by a pro se individual on behalf of defendant Landmark Homes Realty is denied without prejudice and will not be placed on the court's November 19, 2010 law and motion calendar.


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