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Cochran v. Alliance Assisted Living, LLC

United States District Court, N.D. Georgia, Atlanta Division

March 13, 2018

Robin Cochran, Plaintiff,
v.
Alliance Assisted Living, LLC, and Yolanda Alexis Defendants.

          ORDER

          Michael L. Brown United States District Judge.

         Before 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).

         On June 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 seq.

         On 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).[1] 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.

         On 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.

         Plaintiff's Motion to Strike

         The 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.[2] (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.

         Motion to Dismiss for Lack of Service on Defendant Alexis

         Because 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 Alexis.[3]

         As a 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).

         In this 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).

         Analyzing 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 ...

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