United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff Berkley Assurance
Company's motion to strike defendant Edwin-Claude,
Inc.'s (“Edwin-Claude”) pleadings. Defendant
Edwin-Claude has not responded and the time to do so has
passed. For the following reasons, the Court will grant
plaintiff's motion to strike.
December 13, 2018, plaintiff filed this action against
defendants BMG Service Group LLC (“BMG”),
Boulevard RE Holdings LLC (“Boulevard”), Jon E.
Fuhrer Company (“Fuhrer”), Lucia Hevierova
(“Hevierova”), and Edwin-Claude, seeking a
declaratory judgment regarding fire coverage under a
commercial property insurance policy. Plaintiff alleges it
issued a commercial property insurance policy to defendant
BMG under policy number VUMA0151020 (the
“policy”). The policy lists defendant Fuhrer as
mortgage holder of the property. Pursuant to a deed of trust
attached to the complaint, defendant Hevierova may also be a
mortgage holder. Defendants BMG and Boulevard entered into a
contract for deed of the property prior to the fire that
gives rise to the insurance claim. Subsequent to the fire,
defendant Edwin-Claude placed a lien against insurance
August 7, 2019, counsel for defendant Edwin-Claude filed a
motion to withdraw from its representation. On August 19,
2019, the Court issued an Order stating it would not grant
the motion to withdraw until defendant Edwin-Claude obtained
new counsel and warning default judgment may be entered if it
failed to comply:
Edwin-Claude, Inc. is a corporation that cannot appear
pro se. Therefore, this defendant must secure new
counsel, or be possibly subject to a default judgment entered
in favor of plaintiff. See Ackra Direct Mktg. Corp. v.
Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 1996)
(corporation was technically in default as of the time its
counsel withdrew); R. Maganlal & Co. v. M.G. Chem.
Co., Inc., 1996 WL 715526 at *2 (S.D.N.Y. Dec. 12, 1996)
(“Entry of a default judgment is appropriate where a
defendant corporation fails to comply with a court order to
obtain counsel.”). Defendant Edwin-Claude, Inc. cannot
file any papers or motions in this case except through a
licensed attorney. The Court will withhold ruling on the
motion to withdraw for a period of thirty days from the date
of this order, to allow defendant time to obtain substitute
counsel. If defendant fails to obtain substitute counsel
within the time allowed, the Court will consider the merits
of the motion to withdraw.
Order instructed defendant Edwin-Claude to have new counsel
enter an appearance by September 18, 2019. No. entry of
appearance was made on behalf of defendant Edwin-Claude by
the Court-ordered deadline. On September 19, 2019, the Court
granted the motion to withdraw of Edwin-Claude's counsel
and ordered “plaintiff to file motions to strike
defendant Edwin-Claude's pleadings . . . within thirty
days of the date of this Order.” Doc. 68.
to strike are properly directed only to pleadings. 2 James W.
Moore, et al., Moore's Federal Practice §
12.37 (3rd ed. 2018). Motions to strike are not favored
and are infrequently granted, because they propose a drastic
remedy. Stanbury Law Firm v. Internal Revenue
Service, 221 F.3d 1059, 1063 (8th Cir. 2000).
Nonetheless, resolution of such a motion lies within the
broad discretion of the Court. Id. A corporation is
an artificial entity that can only act through agents, cannot
appear pro se, and must be represented by counsel.
Rowland v. California Men's Colony, 506 U.S.
194, 201-02 (1993). A corporate defendant is technically in
default on the date a court permits counsel to withdraw
because a corporation cannot proceed pro se.
Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d
852, 856-57 (8th Cir. 1996). “Entry of a default
judgment is appropriate where a defendant corporation fails
to comply with a court order to obtain counsel.”
Woods v. KC Masterpiece, 2006 WL 1875524, at *1
(E.D. Mo. June 30, 2006) (quoting R. Maganlal & Co.
v. M.G. Chem. Co ., Inc., 1996 WL 715526, at *2
(S.D.N.Y. Dec. 12, 1996)); see United Fire & Cas. Co.
v. Titan Contractors Serv., Inc., 2014 WL 5017923, at *2
(E.D. Mo. Oct. 7, 2014) (answer and counterclaim stricken as
a result of corporation's failure to retain substitute
counsel); SSM Managed Care Org., L.L.C. v. Comprehensive
Behavioral Care, Inc., 2014 WL 241920, at *1 (E.D. Mo.
Jan. 22, 2014) (same).
on the foregoing, the Court will strike defendant
Edwin-Claude's Answer, the only pleading it filed in this
matter. Defendant Edwin-Claude has failed to comply with this
Court's Order of August 19, 2019 or seek an extension.
Based on this inaction, it is apparent Edwin-Claude will not
comply with the Court's Order in the future.
IT IS HEREBY ORDERED that plaintiff Berkley
Assurance Company's motion to strike defendant
Edwin-Claude, Inc.'s pleadings is
GRANTED. [Doc. 73]
IS FURTHER ORDERED that defendant Edwin-Claude,
Inc.'s Answer is STRICKEN from the
record. [Doc. 24]
IS FURTHER ORDERED that the Clerk of Court shall
mail a copy of this Memorandum and Order to Edwin-Claude,
Inc., c/o Paul Abrams, 11426 ...