Emp't Law Grp. v. San Diego Emp't Law Grp.

THE EMPLOYMENT LAW GROUP, P.C., Plaintiff, v. SAN DIEGO EMPLOYMENT LAW GROUP, Defendant.

Civil Action No. 20-cv-1852 (JDB)

United States District Court, District of Columbia

September 2, 2021

ORDER

JOHN D. BATES JUDGE

Before the Court is plaintiff The Employment Law Group's (“TELG”) motion to reconsider this Court's order permitting Dennis Brady to proceed pro se on behalf of defendant San Diego Employment Law Group (“SDELG”). See Mem. in Supp. of Pl.'s Mot. for Recons. of Ct.'s Order Granting Dennis Brady's Mot. for Leave to Appear Pro Se [ECF No. 14-1] (“Pl.'s Mem.”). On August 20, 2020, Mr. Brady asked this Court for leave to appear pro se on behalf of SDELG, representing that SDELG is a sole proprietorship of which he is the proprietor. Dennis Brady, Esq.'s Mot. for Leave to Represent on a Pro Se Basis Def. SDELG [ECF No. 10] (“Brady's Mot.”). In partial reliance on Mr Brady's assertion that plaintiff's counsel had not indicated opposition to this motion, see Id. at 1-2 the Court granted Mr. Brady's motion six days later, see Min. Order (Aug. 26, 2020). Shortly thereafter, however, TELG filed the instant motion for reconsideration, stating that-contrary to Mr. Brady's suggestion-it had planned to oppose Mr. Brady's motion, Pl.'s Mem. at 3, and objecting to his going forward pro se. The Court ordered briefing, see Min. Order (Sept. 2, 2020), and the motion is now ripe for decision.^[1] For the reasons below, the Court will deny plaintiff's motion for reconsideration and reaffirm its prior Order permitting Mr. Brady to proceed pro se.

Courts possess “inherent power to reconsider an interlocutory order as justice requires.” Levin v. Islamic Republic of Iran, Civ. A. No. 05-2494 (JEB), 2021 WL 1245232, at *5 (D.D.C. Mar. 4, 2021) (quoting Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011)); see also Fed. R Civ. Pro. 54(b). District courts retain broad discretion to reconsider earlier orders and may “elect to grant a motion for reconsideration if there are . . . good reasons for doing so.” Cobell v. Norton, 355 F.Supp.2d 531, 540 (D.D.C. 2005). Such reasons include the revelation of information that “might reasonably be expected to alter the conclusion reached by the court, ” id. at 539 (citation and emphasis omitted), or the court having “made a decision outside the adversarial issues presented . . . by the parties, ” United States v. All Assets Held at Bank Julius, 502 F.Supp.3d 91, 95 (D.D.C. 2020) (quoting Singh v. George Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005)).

Even though the Court will ultimately deny plaintiff's motion reconsideration of the Court's earlier decision is appropriate here. The Court ruled on Mr. Brady's motion to proceed pro se before plaintiff filed its opposition which the Court did not know to expect due to a misleading meet-and-confer statement in Mr. Brady's original motion. When an issue is decided without the benefit of briefing by a party who wishes to be heard, reconsideration is both appropriate and just. See Levin, 2021 WL 1245232, at *5 (finding that “justice require[d] the Court to consider the United States' arguments” when the writ in question had been issued “without prejudice to the Government's ability to later oppose it”).

Both parties raise a variety of accusations and cross-accusations in their briefing on this motion, many of which are of questionable relevance to the issue at hand.^[2] From plaintiff's motion, however, the Court discerns two basic reasons for denying Mr. Brady leave to proceed pro se. First, TELG questions “Mr. Brady's assertion that SDELG is a sole proprietorship law practice.” Pl.'s Mem. at 2. Second, it argues that Mr. Brady is unlikely to obey the Court's rules and thus should not be allowed to appear in this litigation without being subject to the Court's full disciplinary authority. The Court will take these two reasons in turn.

Whether SDELG is a sole proprietorship is a threshold question: as plaintiff correctly notes, the default rule is that corporate entities may only appear in federal court represented by counsel. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993) (“[S]ave in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654 . . . does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney.” (footnote omitted)). Even sole member limited liability companies are not exempt from the requirement to retain counsel. E.g., Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007).

A sole proprietorship, however, “has no legal identity separate from the proprietor himself.” United States v. Hagerman, 545 F.3d 579, 581 (7th Cir. 2008); see also Sole Proprietorship, Black's Law Dictionary (11th ed. 2019) (defining the term as “[a] business in which one person . . . operates in his or her personal capacity”). As a consequence, many (though not all) federal courts have permitted the owner of a sole proprietorship to proceed pro se notwithstanding the general requirement that corporate entities must appear through counsel. Compare, e.g., Hagerman, 545 F.3d at 581 (permitting pro se appearance), and RZS Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 354 & n.4 (4th Cir. 2007) (same), with Omega Consulting v. Farrington Mfg. Co., 604 F.Supp.2d 684, 684-85 (S.D.N.Y. 2009) (“While some courts have allowed sole proprietorships to proceed pro se . . . this Court disagrees. If a party wishes to take advantage of the benefits of the corporate form, he or she must also assume its concomitant burdens.”). Most importantly, the D.C. Circuit has permitted a sole proprietor to proceed pro se in an appeal in that court. See Offshore Air v. FAA, No. 02-1233, 2002 WL 31548621, at *1 (D.C. Cir. Nov. 13, 2002) (per curiam) (“Based on petitioner's representation that Offshore Air is a sole proprietorship, petitioner may proceed pro se.”). In sum, if SDELG is a sole proprietorship, then it is lawful for Mr. Brady to proceed pro se; if not, then federal law bars him from doing so.

Mr. Brady has submitted multiple declarations representing that SDELG is a sole proprietorship. See Brady's Mot. at 2; Decl. of Dennis Brady in Opp'n to Pl.'s Mot. for Recons. [ECF No. 18-1] (“Brady Decl.”) ¶ 2 (“I solely own and solely operate San Diego Employment Law Group . . . and am responsible for the taxes and liabilities of the business....For the 28 years of the firm's existence, all of my federal and state tax returns have identified my law firm as my sole proprietorship.”). Pursuant to the Court's request for additional evidence, see Min. Order (Sept. 2, 2020), he also provided a letter from his professional liability insurer addressing him as “Dennis Brady dba San Diego Employment Law Group, ” which seems to corroborate his claims. See Ex. 1, Def.'s Exs. in Opp'n to Pl.'s Mot. for Recons. [ECF No. 18-3] at 3. TELG counters that “a sole proprietorship would be an unusual and inadvisable way to operate a three-office law firm, ” Pl.'s Mem. at 5, and points to a number of inconsistencies in the names and information of Mr. Brady's firms, id. at 5-9. Plaintiff also questions the persuasive force of Mr. Brady's proffered letter, which is now over two years old and concerns an expired insurance policy. See Reply in Supp. of Pl.'s Mot. for Recons. [ECF No. 20] (“Pl.'s Reply”) at 1.

Mr. Brady has the better of this dispute. Although the Court agrees that a sole proprietorship is indeed an unorthodox structure for a multi-attorney law firm and that Mr. Brady's proffered letter is far from ironclad evidence on this question, plaintiff's suggestions (which they largely abandon in their reply brief, see id. at 1-2) are not enough for the Court to find that Mr. Brady is lying about SDELG's corporate form. It is regrettable that Mr. Brady could not set this matter fully to rest by providing more persuasive documentation of SDELG's status, but absent hard evidence to the contrary, the Court will credit Mr. Brady's assertions and treat SDELG as a sole proprietorship. Cf. United States v. Natalie Jewelry, No. 14-CR-60094, 2015 WL 150841, at *6 (S.D. Fla. Jan. 13, 2015) (finding that, in the absence of contradictory evidence, a party's declaration that he was a sole proprietor was “sufficient to plausibly suggest that [plaintiff entity] is a sole proprietorship” at the pleading stage), adopted by District Court, 2015 WL 1181987 (S.D. Fla. Mar. 13, 2015).^[3]

Plaintiff's second argument is essentially that Mr. Brady cannot be trusted to follow the Court's rules and thus should not be permitted to appear in this litigation without being subject to “the disciplinary control of this Court.” Pl.'s Mem. at 13; see generally id. at 9-13. But plaintiff points to no authority for the suggestion that Mr. Brady would not be subject to the Court's authority as a pro se litigant. Courts possess inherent power to control proceedings before them including but not limited to the power of contempt, which may be exercised against lawyers and litigants alike. E.g., SEC v. Bilzerian, 613 F.Supp.2d 66, 70 (D.D.C. 2009) (“The power to punish parties for contempt is inherent in all courts, and its existence is essential to its ability to enforce judgments and orders.” (citation omitted)); Parsi v. Daioleslam, 778 F.3d 116, 130 (D.C. Cir. 2015). Furthermore, the Rules of Disciplinary Enforcement in this District apply “to all attorneys who appear before this Court or who participate in proceedings, whether admitted or not.” Local Civ. R. 83.12(b) (emphasis added). As such, Mr. Brady, a licensed attorney admitted to practice in California, see Brady's Mot. at 2-3; Brady Decl. ¶ 9, “shall be subject to the disciplinary jurisdiction of ...