Mitchell v. McClenny 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-00092
JOHN MCCLENNY, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
This case has been referred to me for all pretrial purposes. See Dkt. 9. 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 March 15, 2026, Mitchell, an incarcerated person proceeding pro se,
instituted this lawsuit against Defendants John McClenny, Zach Moseley, and
John Does 1–20. 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 “withheld MAI’s portion” of adjusting fees
from 	settlement 	funds 	they 	received 	from 	policyholder 	clients 	following
Hurricanes Laura, Delta, and Ida. Dkt. 1 at 3. Mitchell asserts claims for RICO,
RICO conspiracy, conversion, civil conspiracy, breach of fiduciary duty, fraud and
fraudulent 	misrepresentation, 	unjust 	enrichment, 	and 	tortious 	interference.
Mitchell purports to bring this lawsuit “individually and as successor-in-interest to
the accounts receivable and earned fee claims of Mitchell Adjusting International
LLC.” Id. at 2–3. Mitchell cannot do this.
United States District Court
Southern District of Texas
ENTERED
April 30, 2026
Nathan Ochsner, Clerk
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“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. “Artificial
business 	entities—such 	as 	limited 	liability 	companies, 	corporations, 	and
partnerships—may appear in federal court only through counsel.” Alt. Materials,
LLC 	v. 	TCH 	Constr. 	Grp., 	Inc., 	339 	F.R.D. 	322, 	324 	(N.D. 	Fla. 	2021)
(citing Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S.
194, 201–02 (1993)).
Mitchell attempts “to re-characterize claims brought on behalf of [MAI] as
individual claims belonging to him—this time asserting assignment of the claims—
so that he may proceed pro se.” Stark v. Kohrs, No. 1:19-cv-041, 2020 WL 734480,
at *3 (W.D. Tex. Feb. 12, 2020). I assume, for the sake of argument, that the
purported assignment of MAI’s accounts receivables and business claims to
Mitchell is valid. See Dkt. 5. Even so, MAI is the real party in interest, and to
prosecute MAI’s claims, Mitchell must appear through counsel.
The Notice/Authorization to Insurance Company that Mitchell attaches to
his complaint shows that the payee on the settlement checks at issue was MAI. See
Dkt. 1-1 at 17–19 (“To include ‘Mitchell Adjusting International, LLC ’ as an
additional payee on all settlement checks, drafts and/or payments made on this
Insurance Claim.”). Moreover, Mitchell attaches several invoices to his complaint,
all of which come from MAI. See id. at 25–29. Thus, MAI is the real party in
interest. MAI is free to assign its claims to Mitchell, but such assignment still does
not authorize Mitchell to appear on MAI’s behalf. “Courts faced with this question
routinely hold that an individual who has been assigned claims from a corporation
cannot proceed pro se.” See Stark, 2020 WL 734480, at *3 & n.1 (collecting cases).
As the Court of Appeals for the District of Columbia explained more than 90
years ago:
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We think the words ‘the parties,’ as used in [28 U.S.C. § 1654],
mean the parties in interest—the real, beneficial owners of the claims
asserted in the suit[], and by implication that it excludes agents and
attorneys in fact and confines the representation, where the party
whose rights are actually involved does not appear in person, to
attorneys and counselors at law. It cannot be doubted, we think,
that an assignment of a claim against another, made solely
for 	the 	purpose 	of 	permitting 	the 	assignee—not 	an
attorney—to 	conduct 	the 	litigation 	in 	proper 	person,
would be colorable only and, therefore, insufficient to
accomplish the purpose; and this, for the reason that such an
assignment would transfer only the naked legal title or, perhaps more
accurately, no more than an agency— a power without an interest;—
and in such case there would be lacking that element of personal
interest which alone permits the management of an action at law in a
court by some one other than an attorney at law.
. . . .
Petitioner is not an attorney at law, nor is he the real party in
interest, and hence had no standing to commence or to prosecute the
action.
Heiskell v. Mozie, 82 F.2d 861, 863 (D.C. Cir. 1936) (emphasis added). 1 It appears
that Mitchell’s “sole reason for pursuing the assignment . . . was so that [MAI]
could protect its [contractual] rights in federal court without retaining counsel.”
M2 Tech., Inc. v. M2 Software, Inc., 589 F. App’x. 671, 675 n.2 (5th Cir. 2014). This
is not allowed.
In sum, the claims here belong to MAI, the company with whom Defendants
contracted. Even if MAI validly assigned its claims to Mitchell—an issue I need not
address—said assignment merely allows Mitchell to stand in MAI’s shoes. But MAI
can only appear in federal court through an attorney. Mitchell is not an attorney.
1 See also Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1386 (11th Cir. 1985) (“We see no
reason to permit any evasion of the general rule [of corporate representation by counsel]
by the simple expedient of the assignment of corporate claims to the pro se plaintiff. Nor
is any injustice done to plaintiff by this holding.”); Jones v. Niagara Frontier Transp.
Auth., 722 F.2d 20, 23 (2d Cir. 1983) (“In light of the[] policy reasons for preventing a lay
person from representing a corporation in litigation, the federal courts have, in cases
governed by federal law, disapproved any circumvention of the rule by the procedural
device of an assignment of the corporation’s claims to the lay individual.”).
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Thus, he cannot prosecute MAI’s claims on his own, even if they are validly
assigned to him.
“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.
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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