United States District Court, W.D. Louisiana, Shreveport Division
UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF RVP CONSTRUCTION, INC.
ANTHONY GORDON CONSTRUCTION, INC.
HORNSBY, MAGISTRATE JUDGE.
MAURICE HICKS, JR. UNITED STATES DISTRICT JUDGE.
the Court are: (1) a combined Motion to Strike Defendant
Anthony Gordon Construction, Inc.'s (“AG”)
Answer and a Motion to Dismiss AG's Counterclaim by
Plaintiff RVP Construction, Inc., (“RVP”) (Record
Document 68); (2) an appeal from Magistrate Judge Hayes'
Order granting a Motion for Extension of Time for AG to
obtain new counsel by RVP (Record Document 74); (3) a Motion
to Enroll as Counsel for AG by several attorneys (Record
Document 77); and (4) a Motion to Continue the Scheduling
Order in the instant action by AG (Record Document 78).
RVP's Combined Motion to Strike and Motion to
RVP's Motion to Strike and Motion to Dismiss, RVP makes
the following argument: AG failed to obtain new counsel by
the original court-imposed deadline for doing so, prejudicing
RVP, and AG's failure to timely obtain counsel should
result in issuance of a default judgment against AG and
dismissal of its counterclaim against RVP. See
Record Documents 68 and 68-2. RVP states that it has suffered
prejudice in the discovery process because AG's former
counsel withdrew just before the scheduled date for expert
depositions. See Record Document 71 at 3-5. RVP also
states that as a result of the “meritless
counterclaim” filed by AG, “RVP's surety has
reduced RVP's bonding capacity as a result of the claim
by $2.2 million.” Id. at 3.
RVP's Appeal of Magistrate Judge Hayes' Order
Extending the Time for AG to Obtain New Counsel
RVP's Response to the Motion for Extension of Time to
Retain New Counsel and appeal from Magistrate Judge
Hayes' Order granting AG an extension of time to obtain
new counsel, RVP makes the following arguments: (1) because
AG's insurance company filed the Motion on AG's
behalf, the insurance company did not have standing to pursue
such relief on behalf of AG; (2) the insurance company, Great
American Insurance Company (“Great American”),
failed to comply with local rules in seeking an extension of
the deadline for obtaining new counsel; (3) Great American
failed to show good cause for the extension of time for AG to
obtain new counsel; and (4) the Motion for Extension of Time
to Retain New Counsel should have been referred to the
undersigned rather than to Magistrate Judge Hayes.
See Record Documents 71 and 74.
The Motion to Enroll as Counsel and Motion to Continue the
August 25, 2017, the deadline for obtaining new counsel under
Magistrate Judge Hayes' extension of the original
deadline for AG to obtain counsel, attorneys Philip Downer,
Allison Jones, and Pamela Jones filed a Motion to Enroll as
Counsel on behalf of AG. See Record Document 77.
They also filed a Motion to Continue the Scheduling Order in
the instant Action, seeking the continuance on the ground
that it is needed to familiarize themselves with the case and
the “voluminous” materials they are receiving
related to the case. Record Document 78. The proposed new
counsel for AG also seek a scheduling conference in this
Motion. See id. RVP filed a Response to AG's
Motion to Continue the Scheduling Order, arguing that the
Motion is procedurally improper because the Motion to Enroll
as Counsel has not yet been granted and restating several of
the arguments made in its other filings. See Record
Analysis of Pending Motions
filings raise valid issues. AG did miss the original deadline
that Magistrate Judge Hayes imposed for AG to obtain new
counsel. See Record Document 65. Assuming that
RVP's assertions regarding the prejudice it has suffered
are true, RVP has suffered some prejudice from AG's
failure to timely obtain new counsel. Finally, it is
generally true that a party cannot seek relief on behalf of
another, unrepresented party.
even considering such prejudice, RVP seeks a very drastic
remedy- striking AG's answer (permitting a default
judgment to be taken against AG) and dismissing AG's
counterclaim against RVP-in response to AG's failure to
timely obtain counsel. See Record Documents 68,
68-2, 71, 74, and 80. Striking a party's pleadings is
“a drastic remedy to be resorted to only when required
for the purposes of justice.” Spurgeon v.
Leleux, 2017 U.S. Dist. LEXIS 3602 at *3 (W.D. La.
2017), quoting Augustus v. Bd. of Pub. Instruction of
Escambia County, Fla., 306 F.2d 862, 868 (5th Cir.
1962). Courts are necessarily vested with inherent control
“to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.”
Renobato v. Compass Bank Corp., 480 Fed.Appx. 764,
767 n.2 (5th Cir. 2012). “Dismissal with prejudice is
an extreme sanction that deprives a litigant of the
opportunity to pursue his claim.” Memon v. Allied
Domecq QSR, 385 F.3d 871, 873 (5th Cir. 2004).
“The appropriate measure for a judge to take when
confronted with an unrepresented corporation is inherently
discretionary.” Id. at 874. Appeals from a
Magistrate Judge's decisions on non-dispositive matters
are reviewed under a very deferential standard of review, in
which the magistrate's decision will not be overturned
unless it was “clearly erroneous or contrary to
law.” Fed.R.Civ.P. 72(a); see Local Rule 74.1.
exercise of the Court's control over its docket and its
discretion in determining how to deal with unrepresented
corporations, the Court finds that imposing the drastic
sanction of striking AG's answer and dismissing its
counterclaim is unwarranted under these facts. Though AG did
fail to obtain counsel by the original deadline, it did
obtain counsel by the second deadline set by Magistrate Judge
Hayes, which was about one month after the original deadline.
The Court finds that though RVP may have suffered some
prejudice from AG's procedural failure, this prejudice
and the magnitude of AG's failure does equal the
prejudice to AG that would result from the harsh sanction of
striking AG's answer and dismissing its counterclaim,
depriving AG of the opportunity to present the merits of its
claims and defenses.
Court also finds that Magistrate Judge Hayes' decision to
grant an extension of time for AG to obtain new counsel was
neither clearly erroneous nor contrary to law. See
Fed.R.Civ.P. 72(a). Even if the Magistrate Judge's
decision to grant the extension was clearly erroneous or
contrary to law because AG's insurance company sought the
extension on AG's behalf, the Court independently finds
that, in the ...