Mitchell v. Whyte, Esq. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ANDREW J MITCHELL, 	§
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Plaintiff,
V. 	CIVIL ACTION NO. 3:26-cv-00123
MARC WHYTE, ESQ., et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
This case has been referred to me for all pretrial purposes. See Dkt. 7. I am
sua sponte issuing this memorandum and recommendation to suggest that the
court order the conditional dismissal of this lawsuit without prejudice unless
Plaintiff Andrew Mitchell appears through licensed counsel within 30 days from
the date this memorandum and recommendation is adopted.
On April 14, 2026, Mitchell, an incarcerated person proceeding pro se,
instituted this lawsuit against Defendants. Mitchell was a licensed public adjuster.
Mitchell 	provided 	his 	public 	adjusting 	services 	through 	Mitchell 	Adjusting
International LLC (“MAI”), a Texas limited liability company. At all times, Mitchell
has been the sole member of MAI. Mitchell claims that Defendants operated a
“predatory scheme of wire fraud and conversion” and that Defendant Marc Whyte
“collected insurance settlement proceeds containing MAI’s earned contingency
fees, and then systematically withheld those fees from [Mitchell] while exploiting
[Mitchell]’s incarceration to avoid accountability.” Dkt. 1 at 2. Mitchell asserts
claims for civil RICO, civil RICO conspiracy, wire fraud, breach of oral/implied-in-
fact contract, account stated, quantum meruit, unjust enrichment/money had and
received, 	conversion, 	breach 	of 	fiduciary 	duty, 	declaratory 	judgment, 	and
accounting and constructive trust. Mitchell purports to bring this lawsuit as “owner
United States District Court
Southern District of Texas
ENTERED
April 30, 2026
Nathan Ochsner, Clerk
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and sole member of Mitchell Adjusting International LLC.” Id. Mitchell cannot do
this.
“In all courts of the United States the parties may plead and conduct their
own cases personally or by counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein.” 28 U.S.C. § 1654. The right to
conduct one’s own cases personally is limited to one’s own interests. “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). This rule applies to all
“[a]rtificial business entities—such as limited liability companies, corporations,
and partnerships.” Alt. Materials, LLC v. TCH Constr. Grp., Inc., 339 F.R.D. 322,
324 (N.D. Fla. 2021).
The Public Adjuster Contracts attached to the complaint were executed in
MAI’s name, not Mitchell’s. See Dkt. 1-1. The claims in this case belong to MAI.
Mitchell cannot prosecute MAI’s claims himself.
“A district court may dismiss a claim on its own motion as long as the
procedure employed is fair.” Davoodi v. Austin Indep. Sch. Dist., 755 F.3d 307, 310
(5th Cir. 2014) (cleaned up). Fairness “requires both notice of the court’s intention
and an opportunity to respond.” Id. (quotation omitted). Here, Mitchell has both
the opportunity to object to this memorandum and recommendation and, in the
event it is adopted, 30 days to appear through counsel before this action is
dismissed without prejudice. That is fair.
CONCLUSION
For the reasons discussed above, I recommend that the court order the
conditional dismissal of this lawsuit without prejudice unless Mitchell appears
through licensed counsel within 30 days from the date this memorandum and
recommendation is adopted.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
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Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this ___ day of April 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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