InProcessOut, LLC v. World Tech Toys, Inc.

Western District of Texas, txwd-5:2018-cv-00869

ORDER GRANTING [32] Motion to Withdraw as Attorney. Signed by Judge Fred Biery.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION INPROCESSOUT, LLC, § § Plaintiff, § § VS. § CIVIL ACTION NO. SA-18-CA-0869-FB § WORLD TECH TOYS, INC., § § Defendant. § ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND ORDER AND ADVISORY TO DEFENDANT WORLD TECH TOYS, INC. Before the Court is the Motion to Withdraw as Counsel for Defendant World Tech Toys, Inc. filed on April 30, 2019 (docket #32). Counsel of record for defendant World Tech Toys, Inc. seeks to withdraw in this case because "defendant has refused to honor its contractual obligations with its counsel and has failed to pay counsel's invoices for the last 4 months." Counsel also states he has been "warning Defendant [for about a month now, as of April 30th] that he will withdraw from representing Defendant if counsel's invoices remain unpaid." Counsel also includes in his motion, the notices he provided to the defendant as to how this case would proceed and defendant's obligations and responsibilities in the event the motion to withdraw is granted. (Docket #32 at pages 3-4). In addition, counsel has complied with Western District of Texas Local Rule AT-3 by providing the client's information and why the client's signature could not be obtained for the motion. A review of the CM/ECF electronic filing system reveals no response or opposition by the defendant has been filed. The Court finds the motion has merit and should be granted. Accordingly, IT IS HEREBY ORDERED that the Motion to Withdraw as Counsel for Defendant World Tech Toys, Inc. (docket #32) is GRANTED such that Roland J. Tong and his firm of Manning & Kass Ellrod Ramirez Trestor, LLP are permitted to WITHDRAW as attorney of record for defendant World Tech Toys, Inc. under the terms and conditions set forth herein. IT IS FURTHER ORDERED that the Clerk forward a copy of this order by regular and certified mail to the defendant as follows: World Tech Toys, Inc. Attention: Vicken Koyoumijan 28904 Avenue Paine Valencia, CA 91355 As defendant World Tech Toys, Inc. was advised by its attorney in the motion to withdraw, "[i]f this motion is granted, you are obligated to prepare for all proceedings and to hire counsel to represent you in such proceedings. Because World Tech Toys, Inc. is an entity, it is unable to appear pro se and must have an attorney represent it." (Docket #32, at page 3, item number 4). Having granted the motion, the Court reminds the defendant of its obligation to obtain counsel. Donovan v. Road Rangers Country Junction, 736 F.2d 1004, 1005 (5th Cir. 1984) (a corporation is "a fictional legal person" and "can only be represented by licensed counsel; judge directed counsel be hired to represent corporation because individual acting pro se could not represent corporation), cert. denied, 469 U.S. 1217 (1985); see Paradise Village Children's Home Inc. v. United States; 78 F. App'x 930, 931 (5th Cir. 2003) ("'a corporation can appear in a court of record only by an attorney at law'" (emphasis added)); Christus Health Care Sys., Inc. v. American Consultants RX Inc., Cv. No. SA-12- CV-1221-DAE, 2013 WL 3786359 at *1 (W.D. Tex. Jul 18, 2013) ("A corporation is not permitted to proceed pro se in federal court."). In addition, defendant is advised if it declines to hire counsel to represent it, this Court "may properly strike its defenses" if an answer has been filed or allow the entry of default and a default judgment to be taken against it. Accordingly, IT IS HEREBY ORDERED that defendant World Tech Toys, Inc. has until June 28, 2019, to obtain new counsel and file a notification with the Court that counsel has been retained. Defendant is further advised that its deadline to answer, move, or otherwise respond to -2- plaintiff's First Amended Complaint, pursuant to the Federal Rules of Civil Procedure, will begin to run on June 28, 2019. If defendant fails to file its notification by June 28, 2019, as ordered, defendant is advised that this Court will impose sanctions for failure to prosecute and/or failure to comply with a Court order. Sanctions could include the entry of default by the Clerk of Court and a default judgment if moved for by the plaintiff. IT IS FURTHER ORDERED that the withdrawal of counsel Roland J. Tong is conditioned upon Mr. Tong providing a copy of this order along with the Order Concerning Pending Motions (docket #35) which has been entered by the Court this day, to the defendant as soon as practicable. Counsel's withdrawal shall not be complete until he notifies the Court that he has provided the copies to the defendant and has apprized the defendant of the upcoming deadlines. Counsel shall file an advisory with the Court indicating completion of the notification and the date it was completed. Once the advisory is filed, IT IS FURTHER ORDERED that the Clerk remove Roland J. Tong and the law firm of Manning & Kass Ellrod Ramirez Trester, LLP as counsel for defendant in this matter and update the CM/ECF system to reflect this change and to remove Roland J. Tong and the law firm of Manning & Kass Ellrod Ramirez Trester, LLP from the list of attorneys receiving CM/ECF notices in this case. It is so ORDERED. SIGNED this 14th day of June, 2019. _________________________________________________ FRED BIERY UNITED STATES DISTRICT JUDGE -3-