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G&G Closed Circuit Events LLC v. Espinoza

United States District Court, D. Arizona

April 25, 2019

G&G Closed Circuit Events LLC, Plaintiff,
v.
Luis Espinoza, et al., Defendants.

          ORDER

          James A. Teiltrorg, Senior United States District Judge.

         At 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.

         I. BACKGROUND

         Plaintiff 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).

         On 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.

         II. ANALYSIS

         The 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.

         A. Defendant Luis Espinoza May Not Represent Defendant El Agave, LLC. in this Suit

         As a 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 attorney.

         “Although 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[1]-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).

         Accordingly, 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.[2]

         B. Plaintiff Did Not Fail to Join a Required Party Under Rule 19

         Defendant 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 ...

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