IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOHN DOE 1, as parent and natural guardian

of PLAINTIFF C, his minor child; JOHN DOE 2,

as parent and natural guardian of PLAINTIFF D,

his minor child; JANE DOE 1, as parent and natural 

guardian of PLAINTIFF B and PLAINTIFF M, her

minor children; JANE DOE 2, as parent and natural 

guardian of PLAINTIFF J, her minor child; 

JANE DOE 3, as parent and natural guardian of 

PLAINTIFF S, her minor child; and PLAINTIFF L, 

Plaintiffs,

vs. CASE NO. 5:03CV260/RS

JOSEPH R. FRANCIS; MRA HOLDING LLC,

a California limited liability company; MANTRA

FILMS, INC., an Oklahoma corporation

(d/b/a “Girls Gone Wild”); AERO FALCONS, LLC,

a Delaware limited liability company; MARK D.

SCHMITZ; and RYAN DAVID SIMKIN,

Defendants.

___________________________________________/

ORDER ON MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 

THE AMENDED COMPLAINT OR FOR MORE DEFINITE STATEMENT OF

DEFENDANTS JOSEPH R. FRANCIS, MRA HOLDING LLC, MANTRA FILMS, INC.,

AND AERO FALCONS, LLC

Before the Court is the Memorandum in Support of Motion to Dismiss the

Amended Complaint or for More Definite Statement of Defendants Joseph R. Francis,

MRA Holding LLC, Mantra Films, Inc., and Aero Falcons, LLC (Doc. 176.). The

Memorandum is denied because it fails to comply with Federal Rule of Civil Procedure

7(b)(1), 28 U.S.C. § 1654, and Florida law. 

Fed. R. Civ. P. 7(b)(1) states that “[a]n application to the court for an order shall

be by motion . . .” Defendant Francis filed a document entitled, in relevant part,

“Memorandum In Support of Motion to Dismiss” (Doc. 176.) The memorandum was

unaccompanied by the motion that is required by Rule 7(b)(1). Failure to file the motion

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that is required by Rule 7(b)(1) is grounds for denying a party’s request. See Long v.

Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (upholding trial court’s denial of the plaintiff’s

request for leave to amend a complaint because the request was made by

memorandum rather than by motion as required by Fed. R. Civ. P. 7(b)(1)). Because

the federal and local rules clearly distinguish memoranda from motions, see Fed. R.

Civ. P. 7(b) (requiring that “[a]n application to the court for an order shall be by motion”)

and Local Rule 7.1(A) (requiring the moving party to “serve and file with every motion in

a civil or criminal proceeding a memorandum”), the Court is unable to assess the merits

of the Memorandum when such fundamental noncompliance with the rules is apparent. 

In addition, because the “Memorandum In Support of Motion to Dismiss” implies that

such a motion exists but has not been filed with the Court, the Court hesitates to

prematurely assess the merits of the Memorandum when it has been provided with an

incomplete set of documents. 

In addition to Defendant Francis’s failure to comply with Fed. R. Civ. P. 7(b)(1),

Defendant Francis has also failed to comply with 28 U.S.C. § 1654. Section 1654,

which governs appearances in federal court, states that “[i]n 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.” Courts, including the Eleventh Circuit, have consistently interpreted § 1654 to

apply only to individuals and have required that corporations and other artificial business

entities be represented by licensed counsel. “The rule is well established that a

corporation is an artificial entity that can act only through agents, cannot appear pro se,

and must be represented by counsel.” Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385

(11th Cir. 1985) (discussing cases and authority in support of the rule prohibiting

representation of business entities by pro se, non-attorney litigants); see also Richter v.

Higdon Homes, Inc., 544 So. 2d 300, 300 (Fla. 1st DCA 1989); Szteinbaum v. Kaes

inversiones Valores, C.A., 476 So. 2d 247, 248 (Fla. 3rd DCA 1985). Here, the

Memorandum requests dismissal of all counts contained in the Amended Complaint. 

However, the Amended Complaint contains allegations against not only the individual

Defendants but also against Defendants MRA Holding LLC, Mantra Films, Inc., and

Aero Falcons, LLC. Defendant Francis filed the Memorandum on behalf of himself and

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on behalf of Defendant business entities. Defendant Francis has thus attempted to

represent Defendant business entities in this action. Defendant Francis, however, has

not provided evidence that he is an attorney. No counsel of record for Defendant

business entities is currently on file with this Court. Accordingly, any motion or

memorandum filed by Defendant Francis on behalf of Defendant business entities is

prohibited.

CONCLUSION

1. The Memorandum in Support of Motion to Dismiss the Amended Complaint or for

More Definite Statement of Defendants Joseph R. Francis, MRA Holding LLC, Mantra

Films, Inc., and Aero Falcons, LLC (Doc. 176) is denied. 

2. Defendant Francis shall take no further action in these proceedings to represent

Defendant business entities. 

ORDERED on July 13, 2006.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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