3:26-cv-00124•Mitchell v. Flores, Esq. et al
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION ANDREW J MITCHELL, § § § § § § § § § Plaintiff, V. CIVIL ACTION NO. 3:26-cv-00124 MARCO D FLORES, 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 systematically withheld “MAI’s earned public adjusting fees on two large commercial hotel insurance claims.” Dkt. 1 at 2. Mitchell asserts claims for civil RICO, civil RICO conspiracy, wire fraud, breach of contract, conversion, unjust enrichment, breach of fiduciary duty, declaratory judgment, and accounting and constructive trust. Mitchell purports to bring this lawsuit as “owner 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 United States District Court Southern District of Texas ENTERED May 04, 2026 Nathan Ochsner, Clerk Case 3:26-cv-00124 Document 10 Filed 05/04/26 in TXSD Page 1 of 3
2 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 Notice/Authorization to Insurance Company shows that MAI was to be the payee, not Mitchell. See Dkt. 1-2. The Public Adjuster Contracts in question were with MAI, not Mitchell. See Dkt. 1-3. The claims here clearly belong to MAI. MAI can appear in federal court only through an attorney. Mitchell is not an attorney. Thus, he cannot prosecute MAI’s claims himself. See, e.g., Robinson v. Ashland Inc., No. 1:24-CV-97, 2024 WL 5158429, at *8 (E.D. Tex. Dec. 18, 2024) (collecting cases and holding that “Plaintiffs, even as sole owners of their LLC, lack standing to assert claims individually where the cause of action belongs to the company.”). “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. Case 3:26-cv-00124 Document 10 Filed 05/04/26 in TXSD Page 2 of 3
3 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 May 2026. ______________________________ ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE 4th Case 3:26-cv-00124 Document 10 Filed 05/04/26 in TXSD Page 3 of 3
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