Jones v. Niagara Frontier Transp. Authority

• Decision Date: 23 November 1983
• Docket Number: No. 32,D,32
• Citation: 722 F.2d 20
• Parties: Walter L. JONES, Walter L. Jones Development Corporation, Inc., and Walter L. Jones via assignment of claim and cause of action from Walter L. Jones Development Corporation, Inc., Plaintiff-Appellant, v. NIAGARA FRONTIER TRANSPORTATION AUTHORITY, Urban Mass Transportation Administration, Neal Cavanaugh & Siegfried Construction Co., Inc., John Sanders & Slattery Assoc., Inc., Herbert F. Darling and Herbert F. Darling, Inc., Earl Francis & John W. Cowper Co., Inc., S.H. Bartholowmew & Fruin/Colnon/Tom Traylor and Traylor Bros. and William Sterling & Onyx Equipment Co., Defendants-Appellees. ocket 83-7086.
• Court: U.S. Court of Appeals — Second Circuit

Page 20

722 F.2d 20

Walter L. JONES, Walter L. Jones Development Corporation,

Inc., and Walter L. Jones via assignment of claim

and cause of action from Walter L. Jones

Development Corporation, Inc., Plaintiff-Appellant, v. NIAGARA FRONTIER TRANSPORTATION AUTHORITY, Urban Mass

Transportation Administration, Neal Cavanaugh & Siegfried

Construction Co., Inc., John Sanders & Slattery Assoc.,

Inc., Herbert F. Darling and Herbert F. Darling, Inc., Earl

Francis & John W. Cowper Co., Inc., S.H. Bartholowmew &

Fruin/Colnon/Tom Traylor and Traylor Bros. and William

Sterling & Onyx Equipment Co., Defendants-Appellees.

No. 32, Docket 83-7086.

United States Court of Appeals, Second Circuit.

Submitted Aug. 29, 1983.

Decided Nov. 23, 1983.

Walter L. Jones, pro se, for plaintiff-appellant.

Timothy Toohey, Buffalo, N.Y., for defendant-appellee Niagara Frontier Transp. Authority.

Salvatore R. Martoche, U.S. Atty. Buffalo, N.Y. (Sonia C. Jaipaul, Asst. U.S. Atty., Buffalo, N.Y.), for defendant-appellee Urban Mass Transit Admin.

Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N.Y. (John J. Cooney, Buffalo, N.Y.), for defendant-appellee Siegfried Const. Co., Inc.

Brown, Kelly, Turner, Hasset & Leach, Buffalo, N.Y. (Frederick D. Turner, Buffalo, N.Y.), for defendant-appellee Herbert F. Darling, Inc.

Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P.C., Buffalo, N.Y. (Richard A. Clack, James W. Gresens, Buffalo, N.Y.), for defendants-appellees The John W. Cowper Co., Inc., Fruin-Colnon/Traylor Bros./Onyx.

Before KEARSE, CARDAMONE and WINTER, Circuit Judges.

KEARSE, Circuit Judge:

This is an appeal from an order of the United States District Court for the Western District of New York, John T. Elfvin, Judge, denying a motion to amend the complaint of plaintiff Walter L. Jones Development Corporation ("Development"), in order to permit Development to assert its claim in the name of its chief executive officer and sole shareholder, Walter L. Jones ("Jones"), to whom it has assigned its

                claim, thereby to allow Jones to proceed pro se in prosecuting Development's claim.  Jones purports to bring this appeal in his own name as plaintiff-appellant and has so styled his appellate papers.  He is not, however, a party to the action, all claims asserted by him in his individual capacity having been earlier dismissed by the district court.  However, rather than dismiss the appeal because it has been prosecuted on behalf of a nonparty and because the corporation--the only party plaintiff--is improperly represented by a nonattorney, we have liberally construed the notice of appeal, have treated the appeal as being taken by Development, and have considered the arguments advanced by Jones for reversal. 1   For the reasons below, we affirm the order of the district court
                

BACKGROUND

Jones is the sole stockholder and chief executive officer of Development. The action arises out of the selection by defendant Niagara Frontier Transportation Authority ("Niagara") of contractors for the construction of a light rail rapid transit facility in Buffalo, New York. Development submitted low bids on several prime contracts but was not selected to be a contractor. Niagara stated that Development's bids were rejected because Development had insufficient assets and equipment to handle such large contracts, that it did not have the requisite experience to perform the projects, that it failed to post bid bonds with its bids and that it failed to establish that it had the ability to obtain performance bonds and labor and material bonds in the event that any of the contracts were awarded to it.

On November 24, 1980, Jones, acting pro se, filed a complaint on behalf of Development and of himself individually against defendants Niagara, Urban Mass Transportation Administration, and New York State Department of Transportation, claiming that the reasons advanced by Niagara were pretexts and that the rejection of Development's bids was the result of racial discrimination. The complaint charged violations of various federal statutory and constitutional provisions, including the Fifth and Fourteenth Amendments to the United States Constitution; 42 U.S.C. Secs. 1981, 1983, 1985, and 2000d; 49 U.S.C. Sec. 1615 and 49 C.F.R. Sec. 23 et seq. Between November 24, 1980 and April 22, 1981, Jones filed several amendments to the complaint which, inter alia, added numerous new defendants.

Defendants moved to dismiss, inter alia, the claims asserted on behalf of Jones in his individual capacity, on the ground that any claims asserted belonged to Development. The district court granted this motion in April 1981 and ruled further that Jones, who is not an attorney, could not represent Development in the action. The court entered an order that "Walter L. Jones Development Corporation, Inc. may be represented in this lawsuit only by properly admitted counsel." Memorandum and Order dated April 17, 1981.

Thereafter Development appeared through counsel until October 1982. In November 1982, Jones appeared before the court in opposition to new motions to dismiss Development's current complaint (by then amended five times) and stated that Development no longer had counsel. Jones, acting pro se, moved to amend Development's complaint further to name himself as plaintiff by way of Development's assignment to him of its causes of action, in order to permit him to prosecute the action pro se. Jones also sought to introduce a claim for emotional distress and to frame the action as a class action. The court denied the motion to amend and ordered the action dismissed unless qualified counsel appeared on behalf of Development within 45 days. The court stayed its order to

                permit an immediate appeal. 2   We affirm the conditional order of dismissal
                

DISCUSSION

Although 28 U.S.C. Sec. 1654 (1976) provides that "[i]n all courts of the United States, the parties may plead and conduct their own cases personally or by counsel," it is established that a corporation, which is an artificial entity that can only act through agents, cannot proceed pro se. E.g., Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir.1967) (per curiam) (reversing order that allowed action to proceed against a defendant corporation pro se ); Southwest Express Co. v. ICC, 670 F.2d 53, 55 (5th Cir.1982) (per curiam); Brandstein v. White Lamps, Inc., 20 F.Supp. 369, 370 (S.D.N.Y.1937) ("While a corporation is a legal entity, it is also an artificial one, existing only in the contemplation of the law; it can do no act, except through its agents.").

Since, of necessity, a natural person must represent the corporation in court, we have insisted that that person be an attorney licensed to practice law before our courts. Shapiro, Bernstein & Co. v. Continental Record Co., supra, 386 F.2d at 427; Brandstein v. White Lamps, Inc., supra, 20 F.Supp. at 370 ("Since a corporation can appear only through its agents, they must be acceptable to the court; attorneys at law, who have been admitted to practice, are officers of the court and subject to its control."); cf. Phillips v. Tobin, 548 F.2d 408, 413-15 (2d Cir.1976) (shareholder who would pursue corporation's cause of action in a derivative suit must be represented by an attorney). The rule that a corporation may litigate only through a duly licensed attorney is venerable and widespread. See, e.g., Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 830, 6 L.Ed. 204 (1824) ("[a] corporation ... can appear only by attorney' );" Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed.Cir.1983) (per curiam); Carr Enterprises, Inc. v. United States, 698 F.2d 952, 953 (8th Cir.1983) (per curiam); Southwest Express Co. v. ICC, supra, 670 F.2d at 55; In re Victor Publishers, Inc., 545 F.2d 285, 286 (1st Cir.1976) (per curiam); Strong Delivery Ministry Association v. Board of Appeals of Cook County, 543 F.2d 32, 33-34 (7th Cir.1976) (per curiam); In re Highley, 459 F.2d 554, 555 (9th Cir.1972); United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir.1969) (per curiam); Simbraw, Inc. v. United States, 367 F.2d 373, 374 (3d Cir.1966) (per curiam). The reasons for requiring that an attorney appear are thoroughly discussed in the above cases. In summary, they are principally that the conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. The lay litigant frequently brings pleadings that are awkwardly drafted, motions...