United States District Court, D. Arizona
A. Teiltrorg, Senior United States District Judge.
issue is Defendant Luis Espinoza and Defendant El Agave,
LLC's Motion to Dismiss (Doc. 11). For the reasons set
forth below, the Court denies this Motion.
G&G Closed Circuit Events, LLC (hereinafter,
“Plaintiff”) is a commercial distributor and
licensor of sporting events, and purports to have been
granted the exclusive commercial distribution rights to the
Gennady Golovkin v. Saul Alvarez IBF World Middleweight
Championship Fight Program (hereinafter the
“Program”), including all undercard bouts and
fight commentary. (Doc. 1 at 6). Plaintiff alleges that
Defendants Luis Espinoza, individually and d/b/a La Casita
Family Mexican Restaurant, and El Agave, LLC, a business
entity d/b/a La Casita Family Mexican Restaurant, unlawfully
intercepted and exhibited the Program without Plaintiff's
authorization on Saturday, September 16, 2017 at La Casita
Family Mexican Restaurant, a commercial establishment.
(Id. at 7). As a result, on September 11, 2018
Plaintiff brought this action against Defendants for
violations of 47 U.S.C. § 605 and 47 U.S.C. 553.
(See Doc. 1).
December 20, 2018, Defendants, through Defendant Luis
Espinoza individually and on behalf of Defendant El Agave,
LLC, filed a Motion to Dismiss pursuant to Fed.R.Civ.P.
12(b)(7). (Doc. 11). On January 3, 2019, Plaintiff filed a
Response (Doc. 12) in opposition to Defendant's Motion.
(Id. at 3). Defendants never filed any reply.
Motion to Dismiss (Doc. 11) and Plaintiff's Response
(Doc. 12) raise two main issues: (1) whether Defendant Luis
Espinoza may represent Defendant El Agave, LLC. in this suit;
and (2) whether Plaintiff failed to join a required party
under Fed.R.Civ.P. 19 such that dismissal is proper pursuant
to Fed.R.Civ.P. 12(b)(7). The Court examines each of these
arguments in turn.
Defendant Luis Espinoza May Not Represent Defendant El
Agave, LLC. in this Suit
preliminary matter, the Court notes that Defendant Luis
Espinoza filed the Motion to Dismiss at issue on his own
behalf, as well as on behalf of Defendant El Agave, LLC.
(Doc. 11 at 1). Luis Espinoza is the statutory agent of El
Agave, LLC, d/b/a La Casita Family Mexican Restaurant,
(id. at 3), but does not appear to be a licensed
a non-attorney may appear in propria persona on his
own behalf, that privilege is personal to him, ” and
“[h]e has no authority to appear as an attorney for
[anyone] other than himself.” C.E. Pope Equity
Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987).
Thus, a limited liability company-like Defendant El Agave, LLC
here- may appear in federal court only through a licensed
attorney. Rowland v. California Men's Colony, Unit II
Men's Advisory Council, 506 U.S. 194, 201-02 (1993)
(“It has been the law for the better part of two
centuries, for example, that a corporation may appear in the
federal courts only through licensed counsel. . . . [T]he
rationale for that rule applies equally to all artificial
entities.”); D. Beam Ltd. Partnership v. Roller
Derby Skates, Inc., 366 F.3d 972, 973-74 (9th Cir.
2004)(“It is a long standing rule that
‘corporations and other unincorporated associations
must appear in court through an attorney'”)
(alteration and citation omitted); Ittleson SJS Hotel LLC
v. SJS Properties Grp., No. 1:11-CV-00261 OWW, 2011 WL
1363762, at *2 (E.D. Cal. Apr. 11, 2011) (noting that the
defendant, an LLC, could not appear pro per).
Defendant El Agave, LLC must obtain counsel to answer on its
behalf within the deadline set below, or Plaintiff may seek
default against it. To be clear, Defendant Luis Espinoza
cannot appear on behalf of El Agave, LLC. As Defendant
Espinoza is not an attorney, he may not represent Defendant
El Agave, LLC. in any capacity in this Court. C.E. Pope
Equity Tr., 818 F.2d at 697. Thus, for purposes of this
Motion to Dismiss, any arguments which Defendant Espinoza
makes do not apply to Defendant El Agave, LLC.
Plaintiff Did Not Fail to Join a Required Party Under
Espinoza argues that dismissal is proper pursuant to Rule
12(b)(7) because Plaintiff failed to join a required party
under Rule 19. (Doc. 11 at 1, 3). “Federal Rule of
Civil Procedure 19 governs the question of whether a person
not a party to a suit should be joined because he is
necessary for a more complete settlement of the
dispute.” Cutrona v. Sun Health Corp., No. CV
06-02184-PHX-MHM, 2007 WL 4150210, at *1 (D. Ariz. Nov. 19,
2007). This Rule provides, in pertinent part, that:
A person who is subject to service of process and whose
joinder will not deprive the court of subject-matter