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MERCU-RAY INDUS. v. BRISTOL-MYERS CO.

June 25, 1974

MERCU-RAY INDUSTRIES, INC., JAMES SCOTT KREAGER, Plaintiffs,
v.
BRISTOL-MYERS COMPANY, CLAIROL, INC., MICHAEL SCHWARTZ, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM AND ORDER

 KEVIN THOMAS DUFFY, D.J.

 The complaint in this case alleges that violations of the federal antitrust laws, 15 U.S.C. §§ 1, 2 & 15, prevented the corporate plaintiff from exploiting its patented sign device and prevented the individual plaintiff, as officer and sole stockholder of the corporate plaintiff, from obtaining the profits and use thereof. This case is related to two other cases which have recently been affirmed by the Second Circuit on a consolidated appeal. Kreager v. General Elec. Co., 497 F.2d 468 (2d Cir. 1974). In one of those consolidated cases (68 Civ. 944) a jury trial had resulted in a verdict for the defendants and I dismissed the other (73 Civ. 2863) as barred by res judicata.

 In the present case the defendants moved to dismiss on the grounds that the corporate plaintiff was not represented by counsel and that the individual plaintiff failed to state a cause of action. When on the argument of this dismissal motion the corporate plaintiff was represented by counsel, that portion of the motion was denied and the individual plaintiff was granted leave to replead his causes of action. An amended complaint was thereafter served and filed but the plaintiff corporation's counsel has withdrawn from the case in an acrimonious dispute with the individual plaintiff.

 The defendants again move to dismiss the complaint because the corporate plaintiff is not represented by counsel and the repleaded complaint still fails to set out claims upon which the individual plaintiff can recover.

 The law is absolutely clear that a corporation cannot appear pro se in federal court. In re Highley, 459 F.2d 554 (9th Cir. 1972); United States v. 9.19 Acres of Land, Marquette Co., Mich., 416 F.2d 1244, 1245 (6th Cir. 1969); Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir. 1967). The individual plaintiff has attempted to obviate the fact that his corporation is not represented by counsel by assigning all rights in the corporate causes of action to himself and then pressing those claims pro se. In order to effectuate this plan the individual plaintiff has made a motion to change the title of the action from Mercu-Ray Industries, Inc., plaintiff, to James Scott Kreager, plaintiff.

 Kreager had made a similar motion before the Second Circuit when the two cases referred to above were pending on appeal and that motion was granted for the purpose of allowing him to argue the appeal pro se. Kreager now argues that the Second Circuit order of November 7, 1973, granting the motion, controls this case and that I have no choice but to approve the change in title. Defendants, however, argue that the November 7, 1973 order has no precedential value because it was granted only for the purposes of the appeal and only in the absence of any opposition. The relevant portion of the disputed order provides:

 
It is hereby ordered that the motion made herein by James Scott Kreager pro se to amend the party appellant in this action and change the title to James Scott Kreager v. General Electric Company et al, be and it hereby is granted pursuant to Fed. R. App. P. 43, without prejudice to appellees' rights to contest the validity or effectiveness of the alleged assignment. . . . (emphasis added)

 Though the Court of Appeals by the above italicized language specifically preserved the right of the appellees to contest both the validity and effectiveness of the assignment, none of the appellees did contest it "for reasons of their own". Affidavit of E. Inselbuch, p. 2 (Nov. 20, 1973). In light of the Second Circuit's explicit reservation of the appellees' right to contest the assignment and in light of the appellees' failure to accept this invitation, I find that the order of November 7, 1973, permitting Kreager to change the title and appear pro se in the appellate court on a related case, was not a determination on the merits and is therefore not controlling in this case where the defendants do contest the "effectiveness" of the assignment.

 The "validity" of the assignment, i.e., the following of proper corporate procedures and the giving of consideration, is not challenged by the defendants and, therefore, for the purpose of these motions I will assume that the assignment was properly executed. Further, the law is settled that a treble damage antitrust claim can be assigned. D'Ippolito v. Cities Service Co., 374 F.2d 643, 647 (2d Cir. 1967); Hicks v. Bekins Moving & Storage Co., 87 F.2d 583, 585 (9th Cir. 1937); United Copper Securities Co. v. Amalgamated Copper Co., 232 F. 574, 577-78 (2d Cir. 1916); Isidor Weinstein Investment Co. v. Hearst Corp., 303 F. Supp. 646, 649 (N.D.Cal. 1969).

 The facts and law set forth above present the following question: Should a corporation be permitted to thwart the public policy of not allowing it to appear pro se by the procedural technicality of an assignment of the claim to its sole stockholder?

 Though federal law is controlling in this antitrust suit, Isidor Weinstein Investment Co. v. Hearst Corp., supra, at 648-49, no federal case directly on point could be found nor was any cited by the parties. However, dicta in an opinion of the United States Court of Appeals for the District of Columbia does address this question. On grounds of policy, but without citation, the court there stated:

 
"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 . . . ."

 Heiskell v. Mozie, 65 App. D.C. 255, 82 F.2d 861, 863 (D.C. Cir. 1936). Since the facts in Heiskell showed an agency and not an assignment and, further, since the agent in Heiskell was not the real party in interest, the case could be distinguished. Its dicta is, ...


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