Mitchell v. Lionheart Funding LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ANDREW J MITCHELL, 	§
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Plaintiff,
V. 	3:26-cv-00096
LIONHEART FUNDING, 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 April 30,
2026, recommending that 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. 22.
On May 12, 2026, the plaintiff filed his objections to the memorandum and
recommendation. 	Dkt. 	23. 	The 	plaintiff 	simultaneously 	filed 	a 	motion 	for
appointment of counsel, a motion to stay, and a motion for leave to file first
amended complaint, requesting the same relief requested in his objections.
Dkts. 24, 25, 27. Because these motions request the same relief requested in the
plaintiff’s objections, the court will address these two motions alongside the
United States District Court
Southern District of Texas
ENTERED
May 28, 2026
Nathan Ochsner, Clerk
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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 [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. 23 at 2. 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 and
hold 	that 	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
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Frontier Transp. Auth., 722 F.2d 20, 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).
This objection is overruled. Sprint did not address whether a non-lawyer may
proceed pro se on behalf of an LLC and has no bearing here.
In his third objection, the plaintiff argues that Judge Edison overlooked his
direct individual-capacity claims. The court need not address this objection
because the plaintiff has already requested leave to amend his complaint. Leave is
granted so that the plaintiff may clarify his individual interest in his claims.
In his fourth and final objection, the plaintiff argues that Judge Edison
should have considered appointing counsel under 28 U.S.C. § 1915(e)(1) and
Naranjo v. 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,
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he should have no difficulty securing counsel on a contingency basis. For this
reasons, the court also declines to appoint counsel for plaintiff as an individual.
It is therefore ordered that:
(1) 	Judge Edison’s memorandum and recommendation (Dkt. 22) is
approved and adopted in its entirety as the holding of the court;
(2) 	The plaintiff’s motion for leave to file a first amended complaint
(Dkt. 27) is granted;1
(3) 	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
an assignee or the sole member of his LLC;
(4) 	The plaintiff’s motion for appointment of counsel (Dkt. 24) is denied;
(5) 	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 defendant and not as his LLC’s sole
member or as an assignee of his LLC’s claims; and
(6) 	The plaintiff’s motion to stay (Dkt. 25) 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
1 The court appreciates that the plaintiff attached his proposed first amended complaint
to his motion for leave. Dkt. 27-1. However, because this complaint was drafted without
the benefit of this order, the court will not direct the clerk to file said complaint onto the
docket, as the plaintiff may wish to make additional changes upon receipt of this order.
The plaintiff should either send his first amended complaint as a standalone document
within the next 30 days or inform the court that he would like Dkt. 27-1 filed as his first
amended complaint.
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