Mitchell v. Keith et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ANDREW J MITCHELL, 	§
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Plaintiff,
V. 	3:26-cv-90
JONATHAN KEITH, ET AL.,
DefendantS.
ORDER ADOPTING MAGISTRATE JUDGE’S
MEMORANDUM AND RECOMMENDATION
On March 25, 2026, all pretrial matters in this case were referred to United
States Magistrate Judge Andrew M. Edison under 28 U.S.C. § 636(b)(1). Dkt. 10.
Judge Edison filed a memorandum and recommendation sua sponte on May 4,
2026, recommending that the court order the conditional dismissal of this lawsuit
without prejudice unless the plaintiff appears through licensed counsel within 30
days from the date the memorandum and recommendation is adopted. Dkt. 17.
On May 21, 2026, the plaintiff filed his objections to the memorandum and
recommendation. 	Dkt. 	19. 	The 	plaintiff 	simultaneously 	filed 	a 	motion 	for
appointment of counsel and a motion to stay, requesting the same relief requested
in his objections. Dkts. 20, 21. Because these motions request the same relief
requested in the plaintiff’s objections, the court will address these two motions
alongside the plaintiff’s objections. In accordance with 28 U.S.C. § 636(b)(1)(C),
this court is required to “make a de novo determination of those portions of the
United States District Court
Southern District of Texas
ENTERED
May 28, 2026
Nathan Ochsner, Clerk
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[magistrate judge’s] report or specified proposed findings or recommendations to
which objection [has been] made.” After conducting this de novo review, the court
may 	“accept, 	reject, 	or 	modify, 	in 	whole 	or 	in 	part, 	the 	findings 	or
recommendations made by the magistrate judge.” Id.; see also Fed. R. Civ. P.
72(b)(3).
The court has carefully considered the objections; the memorandum and
recommendation; the pleadings; and the record. The court accepts Judge Edison’s
memorandum and recommendation and adopts it as the opinion of the court.
The plaintiff first objects that Judge Edison misapplied certain authorities
cited in his memorandum and recommendation, and that he treated as controlling
authority the opinion issued in M2 Technology, Inc. v. M2 Software, Inc., 589 F.
App’x 671 (5th Cir. 2014). Dkt. 19 at 7–8. This objection is overruled. “It has been
the law for the better part of two centuries . . . that a corporation may appear in the
federal courts only through licensed counsel.” Rowland v. Cal. Men’s Colony, Unit
II Men’s Advisory Council, 506 U.S. 194, 201–02 (1993). It is this centuries-old,
binding 	precedent 	that 	underpins 	Judge 	Edison’s 	memorandum 	and
recommendation. Binding Fifth Circuit authority is not required for this court to
follow the uniform rule adopted by every federal court to confront the issue: where
“the lay individual chose to accept the advantages of incorporation,” he “must now
bear the burdens of that incorporation; thus, he must have an attorney present the
corporation’s legal claims.” Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20,
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23 (2d Cir. 1983) (quotation omitted). Assignment of an LLC’s claims does not
defeat this rule.
The plaintiff next objects that he has standing as the real party in interest
under Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269 (2008),
the Mandatory Victims Restitution Act, and his direct individual injury as the
licensed professional whose labor underpins the claims at issue. This objection is
overruled. To start, Sprint did not address whether a non-lawyer may proceed pro
se on behalf of an LLC and has no bearing here.
Nor does the Mandatory Victims Restitution Act have any bearing on
whether the plaintiff may represent his LLC. The plaintiff, an incarcerated felon,
refers to himself as “the federally-directed restitution-recovery vehicle.” Dkt. 19 at
9. The court is unfamiliar with this term, which does not appear in any case law or
the Mandatory Victims Restitution Act. The plaintiff argues that because he
allegedly holds legal title to his LLC’s receivables, he has standing. The plaintiff
“points to no authority for his proposition that when [a federal district court in an
unrelated 	criminal 	action] 	determines 	an 	LLC 	is 	an 	individual 	[criminal
defendant’s asset] for [restitution] purposes, the LLC should be disregarded for all
purposes, 	including 	when 	determining 	whether 	an 	LLC’s 	sole 	member 	has
standing to assert a . . . claim alleging harm to the LLC or when applying federal
law requiring business entities to appear in court only through licensed counsel.”
Lunnon v. United States, No. 21-2140, 2022 WL 17729999, at *6 (10th Cir. Dec.
16, 2022).
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The plaintiff also contends that he has claims against the defendants in his
individual capacity—namely, as “the licensed individual public adjuster whose
personal labor generated the compensation Defendants withheld.” Dkt. 19 at 9. If
the plaintiff believes that he has claims to assert solely as an individual and not as
the sole member of his LLC or as an assignee of its claims, the court will permit
him to amend his complaint to assert such claims.
In his third objection, the plaintiff argues that Judge Edison wrongly
recommended dismissal without first affording the plaintiff an opportunity to cure
under Rule 17(a) and Wieburg v. GTE Southwest Inc., 272 F.3d 302 (5th Cir.
2001). This objection is overruled. Unlike here, the court in Wieburg dismissed the
action outright. Judge Edison recommended conditional dismissal if the plaintiff
does not appear through licensed counsel within 30 days. If the plaintiff does
appear through licensed counsel, the action will not be dismissed. If the plaintiff
does not appear through licensed counsel, the action will be dismissed, but only
once the 30 days have passed. Conditional dismissals are a standard means for
dealing with the substitution of the real party in interest. See, e.g., Wright v. Sears
Roebuck & Co., No. CIV.A. 09-1498, 2010 WL 6032803, at *5 (W.D. La. Oct. 19,
2010) (holding that the remedy under Rule 17 is conditional dismissal unless the
real party in interest joins the litigation), report and recommendation adopted,
No. CIV.A. 09-1498, 2011 WL 867252 (W.D. La. Mar. 10, 2011).
In his fourth objection, the plaintiff argues that Judge Edison should have
considered appointing counsel under 28 U.S.C. § 1915(e)(1) and Naranjo v.
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Thompson, 809 F.3d 793 (5th Cir. 2015). This objection is overruled. The United
States Supreme Court held more than 30 years ago that § 1915 extends only to
natural persons. See Rowland, 506 U.S. at 208. Thus, the court has no power to
appoint counsel to a corporate plaintiff under § 1915.
While the Fifth Circuit recognized a district court’s “inherent power to
appoint counsel for an insolvent corporate criminal defendant,” this court is
unaware of any authority that would support appointing counsel for a corporate
plaintiff in civil litigation. Naranjo, 809 F.3d at 802. Assuming the court has such
inherent power, the court declines to use it. If the value of this litigation is as great
as the plaintiff believes, he should have no difficulty securing counsel on a
contingency basis. For this reason, the court also declines to appoint counsel to the
plaintiff in his individual capacity.
In his fifth and final objection, the plaintiff contends that Judge Edison
made a “material misstatement concerning the number of defendants named in
the operative first amended complaint.” Dkt. 19 at 11. Specifically, the plaintiff
argues that he named three defendants in the first amended complaint and that
Judge Edison incorrectly stated that the plaintiff named only two defendants. The
first page of the first amended complaint states: “Plaintiff has: (1) narrowed this
action from two hundred nine (209) defendants to two (2) defendants.” Dkt. 15 at
1. In subsection III.B. the plaintiff lists only two defendants: Swami Bapa Inc. and
Corrine Missionary Baptist Church. Id. at 3–4. The plaintiff claims that he named
three defendants, including Dexter Fountain. In support, the plaintiff cites the first
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and second pages of his first amended complaint. Dkt. 19 at 11 (citing Dkt. 15 1–
2). But the name “Dexter Fountain” appears only one in the first amended
complaint, on the sixth page, not the first or second pages. Dkt. 15 at 6. The court
finds no fault with Judge Edison’s statement regarding the number of defendants
sued by the plaintiff in the first amended complaint. If the plaintiff indeed meant
to sue three defendants and not two, then the plaintiff may clarify that when he
files his second amended complaint.
It is therefore ordered that:
(1) 	Judge 	Edison’s 	memorandum 	and 	recommendation, 	Dkt. 	17, 	is
approved and adopted in its entirety as the holding of the court;
(2) 	The plaintiff has 30 days from the date of this order to file an amended
complaint asserting claims solely in his individual capacity and not as
the sole member of his LLC or as an assignee of its claims;
(3) 	The plaintiff’s motion for appointment of counsel, Dkt. 20, is denied;
(4) 	This case is conditionally dismissed unless, within 30 days from the
entry of this order, the plaintiff appears through licensed counsel to
pursue his LLC’s claims or files an amended complaint asserting only
individual claims against the defendants and not as his LLC’s sole
member or as an assignee of his LLC’s claims; and
(5) 	The plaintiff’s motion to stay, Dkt. 21, is granted, in that all other
deadlines in this case are stayed for the next 30 days.
SIGNED on Galveston Island this 27th day of May 2026.
______________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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