1

 Palazzo v. Gulf Oil Corp., 764 F. 2d 1381, 1386 (llth Cir.

1985)(“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 presented by counsel.”); Nat’l Indep. Theatre

Exhibitors, Inc. v. Buena Vista Distrib. Co., 748 F. 2d 602, 604

(llth Cir. 1984). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

PROGRESSIVE SPECIALITY :

INSURANCE COMPANY, :

 :

Plaintiff, :

 :

VS. : CIVIL ACTION NO. 08-00719-WS-B

 : 

E & K TRUCKING, INC., et al., :

 :

Defendants. : 

REPORT AND RECOMMENDATION

This case is before the Court due to Defendant E & K Trucking,

Inc.’s failure to obey an Order of this Court. In an Order dated

February 26, 2010, Defendant E & K Trucking, Inc. was advised that

corporations are prohibited from appearing in federal court without

counsel1. (Doc. 30). Accordingly, Defendant was granted leave until

March 22, 2010, in order to obtain counsel. Defendant was expressly

cautioned that failure to comply with the Court’s Order would result

in sanctions, including the entry of a default judgment. A review

of the case docket reflects that as of today’s date, Defendant E &

K Trucking, Inc. has not secured counsel. However, William Kidd, of

E & K Trucking, Inc., did submit a letter advising that E & K

Trucking, Inc. no longer exists, and that the company cannot afford

Case 1:08-cv-00719-WS-B Document 39 Filed 04/16/10 Page 1 of 5
2

counsel. (Doc. 35). 

The failure of a corporate entity to obtain counsel, in

violation of a court order or rule to do so, has repeatedly been

held to support default judgment, even absent violations of other

rules or orders. Am. Res. Ins. Co., Inc. v. The Evoleno Co., LLC.,

2008 U.S. Dist. LEXIS 86310 (S.D. Ala. Oct. 23, 2008)(citing

Employee Painters' Trust v. Ethan Enters., Inc., 480 F.3d 993, 998

(9th Cir. 2007); Grace v. Bank Leumi Trust Co., 443 F.3d 180, 192

(2nd Cir. 2006); Forsythe v. Hales, 255 F.3d 487, 490 (8th Cir.

2001)). See also Knight v. SCA Bus. Ctr., Inc., 2007 U.S. Dist.

LEXIS 50412 (N.D. Ga. Oct. 5, 2007)(granting a motion for default

judgment because an unrepresented corporate defendant had been

given adequate notice of the need for an attorney and sufficient

opportunity to obtain counsel). Moreover, in American Resources,

the Court observed that while a civil litigant has a constitutional

right to retain hired counsel, the right does not require the

government to provide lawyers for litigants in civil matters; thus,

“default judgment is proper even when the unrepresented artificial

entity asserts impecuniousness.” Am. Res. Ins. Co., Inc., 2008 U.S.

Dist. LEXIS 86310, at *7 n.2 (citing Tropicana Prods., Inc. v. Vero

Beach Groves, Inc., 1993 U.S. App. LEXIS 4914, 1993 WL 73693 at *1,

*5 (1st Cir. 1993)).

In this case, Defendant E & K Trucking, Inc. has failed to

comply with the Court’s directive to secure counsel, and based upon

Case 1:08-cv-00719-WS-B Document 39 Filed 04/16/10 Page 2 of 5
2

(See Docs. 26, 35).

3

The record reflects that while counsel for Plaintiff and

Defendant George Dail participated in the parties’ Planning

Meeting pursuant to the Court’s Preliminary Scheduling Order

(Doc. 32), no one appeared on behalf of Defendant E & K Trucking,

Inc. (Doc. 36)

4

The record reflects that on February 18, 2009, the Clerk

entered default against Defendants E& K Trucking, Inc. and

William Kidd (Doc. 12); however, the Clerk’s entry did not take

into account the fact that E & K had filed a Chapter 11

Bankruptcy Petition. In an Order dated August 26, 2009, U.S.

Bankruptcy Judge Margaret Mahoney granted Progressive’s motion

for relief from automatic stay so the action against E & K

Trucking could proceed. (Doc. 22, Ex. 1). 

its correspondence2 to the Court, it appears that Defendant is

operating under the assumption that financial hardship somehow

relieves it of the obligation to defend this action. Accordingly,

at this juncture, there is no reason be believe that any action, 

short of the entry of a default, will suffice3. Accordingly, the

undersigned RECOMMENDS that a default4 be entered against Defendant

E & K Trucking, Inc. 

The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 16th day of April, 2010.

 /s/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00719-WS-B Document 39 Filed 04/16/10 Page 3 of 5
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service

of this document, file specific written objections with the clerk

of court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar

an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988). The procedure for challenging the

findings and recommendations of the magistrate judge is set out

in more detail in SD ALA LR 72.4 (June 1, 1997), which provides,

in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” ....The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a

different disposition made. It is insufficient to

submit only a copy of the original brief submitted to

the magistrate judge, although a copy of the original

brief may be submitted or referred to and incorporated

into the brief in support of the objection. Failure to

submit a brief in support of the objection may be

deemed an abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

Case 1:08-cv-00719-WS-B Document 39 Filed 04/16/10 Page 4 of 5
5

3. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00719-WS-B Document 39 Filed 04/16/10 Page 5 of 5