United States District Court, N.D. Georgia, Atlanta Division
Michael L. Brown United States District Judge.
the Court is Defendant Yolanda Alexis's Motion to Dismiss
(Dkt. 11), Plaintiff Robin Cochran's Motion for Leave to
File Response to Motion to Dismiss (Dkt. 14), Plaintiff's
Motion for Leave to File Supplemental Brief in Opposition to
Motion to Dismiss (Dkt. 16), Plaintiff's Motion for Leave
to File Motion to Strike (Dkt. 18), and Plaintiff's
Motion to Strike. (Dkt. 17).
30, 2017, Plaintiff filed her complaint against Defendant
Alliance Assisted Living, LLC and Defendant Yolanda Alexis,
seeking to recover unpaid wages and overtime pursuant to the
Fair Labor Standards Act, 29 U.S.C. § 201, et
August 14, 2017, Defendant Yolanda Alexis simultaneously
filed both the answer, which purports to answer on behalf of
both Defendant Alexis and Defendant Alliance Assisted Living,
LLC (Dkt. 10), and the motion to dismiss, apparently on her
own behalf. (Dkt. 11). In her motion to dismiss, Defendant Alexis
argues that Plaintiff did not properly serve her.
Id. On September 5, 2017, Plaintiff responded to the
motion to dismiss, arguing that she properly served both
Defendant Alexis and Defendant Alliance Assisted Living. And,
on September 8, 2017, Plaintiff filed a motion for leave to
file a response to the motion to dismiss, asking the Court to
accept the response filed on September 5, despite the fact
that Plaintiff filed it after the deadline set forth in the
Local Rules. (Dkt. 14). Defendants did not respond to
Plaintiff's motion for leave to file. On September 27,
2018, Plaintiff filed a supplemental brief in response to the
motion to dismiss. (Dkt. 15). A day later, Plaintiff filed a
motion for leave to file the supplemental brief in opposition
to the motion to dismiss. (Dkt. 16). The supplemental brief
and its attachments purport to show that Plaintiff re-served
Defendant Alliance Assisted Living via certified mail,
thus-Plaintiff contends-mooting the motion to dismiss.
See Dkt. 15.
February 7, 2018, Plaintiff filed her motion to strike the
answer. (Dkt. 17). Two days later, Plaintiff filed her motion
for leave to file the motion to strike. (Dkt. 18). The motion
to strike argues that the Court should strike the answer as
to Defendant Alliance Assisted Living because as a limited
liability company, it may not represent itself pro se.
Id. Defendants did not respond to either the motion
for leave to file motion to strike or the motion to strike.
Motion to Strike
Court grants Plaintiff's motion for leave to file the
motion to strike as unopposed. (Dkt. 18). Regarding the
substance of the motion to strike, it is settled that a
limited liability company may not represent itself pro se.
See Nautilus Ins. Co. v. Ejiii Dev. Co., Case No.
1:17-cv-2048, 2017 WL 4416832, at *1 (N.D.Ga. Oct. 5, 2017)
(finding that corporations and other artificial entities,
including limited liability companies, must be represented by
counsel). And, where a limited liability company attempts to
answer a complaint pro se, such an answer is inappropriate
and should be stricken. See Id. (granting motion to
strike pro se answer filed by corporation). Because Yolanda
Alexis is not a licensed attorney, she cannot represent
Defendant Alliance Assisted Living, a limited liability
company. Accordingly, the Court grants the motion to strike
the answer as to Defendant Alliance Assisted
Living. (Dkt. 17). Defendant Alliance Assisted
Living shall have twenty-one (21) days from the date of this
Order to retain counsel and file an answer to the complaint.
to Dismiss for Lack of Service on Defendant
Defendant Alliance Assisted Living may not represent itself
pro se, the Court will construe the motion to dismiss as
challenging service only on behalf of Defendant
threshold question, the Court considers whether Defendant
Alexis waived any objection by filing an answer in which she
did not challenge the sufficiency of service. The Court must
liberally construe pro se filings, but parties proceeding pro
se must “nevertheless . . . conform to procedural
rules.” Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007). “Service of process is a
jurisdictional requirement: a court lacks jurisdiction over
the person of a defendant when that defendant has not been
served.” Pardazi v. Cullman Med. Ctr., 896
F.2d 1313, 1317 (11th Cir. 1990). But, an objection to
personal jurisdiction on the grounds of insufficient service
is waived if not properly raised. Id. “[A]
defendant must raise any challenge to the sufficiency of
service of process in the first
response to the plaintiff's complaint; i.e the defendant
must include the defense in either its
pre-answer motion to dismiss, or if
no pre-answer motion is filed, then the defense must be
included in the defendant's answer.” Hemispherx
Biopharma, Inc. v. Johannesburg Consol. Inv., 553 F.3d
1351, 1360 (11th Cir. 2008) (emphasis added).
case, Defendant Alexis did not challenge service in her
answer but did so in her motion to dismiss. While the answer
appears first on the docket, it was actually filed
simultaneously with the motion to dismiss. (Dkts. 10, 11).
The Court finds that the simultaneous filings
were-together-Defendant Alexis's first response to the
complaint. Accordingly, Defendant Alexis did not waive any
objection as to the sufficiency of service. See Pouyeh v.
Pub. Health Tr. Of Jackson Health Sys., ___ Fed.Appx.
___, 2017 WL 5592268, at *3 (11th Cir. 2017) (noting that
objections to service are preserved if raised in the first
response to plaintiff's complaint).
the sufficiency of service, Fed.R.Civ.P. 4(e) provides that
service on an individual may be made in the manner provided
for under state law, or by:
(A) delivering a copy of the summons and of the complaint to
the individual personally
(B) leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and