IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02277-PAB-MJW

JACK DANIEL’S PROPERTIES, INC., a Delaware corporation,

Plaintiff,

v.

BEVERAGE RESOURCES INTERNATIONAL, INC., a Colorado corporation,

JAKK’D HOLDINGS, LLC, a Colorado limited liability company, and

JACK BARRECA, an individual,

Defendants.

ORDER

This matter is before the Court on the Unopposed Motion to Vacate June 4, 2012

Order [Docket No. 52] filed by plaintiff Jack Daniel’s Properties, Inc. (“JDPI”). In the

motion, JDPI requests that the Court vacate the Entry of Default [Docket No. 51]

entered against defendant Jakk’d Holdings, LLC. Docket No. 52 at 2.

On November 14, 2011, Magistrate Judge Michael J. Watanabe issued an Order

allowing counsel for defendant Jakk’d Holdings, LLC (“Jakk’d”) to withdraw [Docket No.

25]. On the same day, the magistrate judge ordered Jakk’d to show cause why default

should not enter for its failure to retain new counsel [Docket No. 26]. On December 16,

2011, JDPI filed a motion for entry of default against Jakk’d pursuant to Rule 55(a)

[Docket No. 34]. Because Jakk’d failed to respond to the Order to Show Cause, the

magistrate judge recommended that the Clerk of Court enter a default against Jakk’d. 

See Docket No. 37. The Court accepted the Recommendation [Docket No. 50] and

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directed the clerk of the court to enter default. On June 4, 2012, default entered

against Jakk’d [Docket No. 51]. 

In the present motion, JDPI states that it filed a Joint Motion for Entry of Final

Judgment [Docket No. 49] with defendants Beverage Resources International, Inc. and

Jack Barreca. Docket No. 52 at 2. JDPI claims that, although Jakk’d is currently in

default, Mr. Barreca, as an officer of Jakk’d, has indicated that he does not oppose

vacating the entry of default. Id. at 1. JDPI therefore requests that the Court vacate the

entry of default against Jakk’d and, instead, grant the joint motion for entry of final

judgment. Id. 

As a general matter, “a corporation or other business entity can only appear in

court through an attorney and not through a non-attorney corporate officer appearing

pro se.” Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556 (10th Cir. 2001) (citation

omitted). Courts have interpreted the rule to mean that limited liability companies

cannot prosecute cases without representation from an attorney, even if they only have

one member. United States v. Hagerman, 545 F.3d 579, 581 (7th Cir. 2008); accord

Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir. 2007) (finding that “a limited liability

company also may appear in federal court only through a licensed attorney.”); see also

Roscoe v. United States, 134 F. App’x 226, 227 (10th Cir. 2005) (“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. As the courts have recognized, the rationale for

that rule applies equally to all artificial entities.”) (citation omitted). 

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In this case, the magistrate judge recommended the entry of default against

Jakk’d because of its failure to retain counsel. Mr. Barreca, even as a director of

Jakk’d, cannot represent the interests of Jakk’d in this litigation. Wahatoyas, 253 F.3d

at 556. Without representation, Jakk’d cannot properly appear before this Court and

cannot be bound by an order issued pursuant to its “consent,” as opposed to an order

issued pursuant to a default judgment. Therefore, the Court will deny JDPI’s motion to

vacate default. 

Based on the foregoing, it is 

ORDERED that plaintiff’s Unopposed Motion to Vacate Order dated June 4,

2012 (Doc. No. 50) [Docket No. 52] is DENIED. It is further

ORDERED that any motion for default judgment pursuant to Fed. R. Civ. P.

55(b) shall be filed on or before September 17, 2012. The motion shall be served upon

defendant Jakk’d Holdings, LLC by mailing a copy, along with this Order, to the address

listed on the docket.

DATED September 7, 2012.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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