United States District Court, E.D. New York
OPINION & ORDER
R. ROSS UNITED STATES DISTRICT JUDGE
Consolidated Distributors, Inc., initiated its appeal of a
bankruptcy court judgment against it on March 2, 2017,
purportedly proceeding pro se. Notice of Appeal, ECF
No. 1. However, appellant is an artificial entity
that cannot proceed pro se in federal court.
See, e.g., Rowland v. California Men's
Colony, 506 U.S. 194, 201-02 (1993) (“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.”); Shapiro, Bernstein & Co.
v. Continental Record Co., 386 F.2d 426, 427 (2d
Cir.1967) (per curiam) (stating that “it is
settled law that a corporation cannot appear other than by
its attorney”); In re Roma Grp., Inc., 153
B.R. 18, 20-21 (S.D.N.Y. 1993) (explaining that “[o]ne
adopting a corporate form must accept the consequences which
go with it. These include the duty to be amenable to
litigation without the inconvenience caused to courts and
adversaries by the necessity to deal in such litigation with
representatives of the corporation unfamiliar with legal
court ordered appellant to cure this deficit and appear by
counsel on March 7, 2017, and again on April 4, 2017. Order
(Mar. 7, 2017); Order (April 4, 2017) (warning that
“[f]ailure to do so may result in its appeal being
dismissed”). Appellant has had no communication with
the court since filing its notice of appeal, nor has it
complied with Federal Rule of Bankruptcy Procedure 8009,
which requires parties appealing bankruptcy orders to file
with the bankruptcy clerk designations of items to be
included in the appellant record. See Notice of
Docketing Record on Appeal to District Court, In re
Consolidated Distributors Inc., No. 1-13-40350-nhl
(Bankr. E.D.N.Y. Mar. 2, 2017), ECF No. 196; Notice (Mar. 2,
2017); Fed.R.Bankr.P. 8009. According to the bankruptcy
court's docket, appellant was represented by two
attorneys in bankruptcy court.
failure by the corporate plaintiff to obtain counsel in this
case constitutes a failure to prosecute. Cf. Finkel v.
Universal Elec. Corp., 970 F.Supp.2d 108, 120 (E.D.N.Y.
2013) (“The failure by the corporate defendant to
obtain counsel in this case constitutes a failure to
defend”); Carlone v. Lion & the Bull Films,
Inc., 861 F.Supp.2d 312, 319 (S.D.N.Y. 2012) (entering
default judgment against corporation that failed to appear by
counsel). This court may, in its discretion, dismiss a case
sua sponte for failure to prosecute. Link v.
Wabash R. Co., 370 U.S. 626, 632-33 (1962). In
exercising that discretion, a court must consider:
1) the duration of plaintiff's failures or
non-compliance; 2) whether plaintiff had notice that such
conduct would result in dismissal; 3) whether prejudice to
the defendant is likely to result; 4) . . . [the court's]
interest in managing its docket [as balanced] against
plaintiff's interest in receiving an opportunity to be
heard; and 5) . . . the efficacy of a sanction less draconian
Baffa v. Donaldson, Lufkin & Jenrette Secs.
Corp., 222 F.3d 52, 63 (2d Cir. 2000).
of these factors support dismissal. First, plaintiff had
notice that failure to appear by counsel may result in
dismissal. See Order (April 4, 2017). Second, the
rules of bankruptcy procedure allow appellant to request a
stay of the judgment against it at any time while the appeal
is pending. See Fed.R.Bankr.P. 8007(a)(2). This
prevents the bankruptcy court's judgment from becoming
final and prejudices appellant's creditors that are owed
money under the judgment. Third, there is no sanction less
draconian than dismissal of this appeal that will allow the
bankruptcy court's judgment to become final upon
expiration of the time limit to appeal.
the court recognizes that only a few months have passed since
appellant's notice of appeal. Therefore, this appeal is
dismissed without prejudice to reopening it in the event that
appellant secures counsel before its time to appeal under the
Federal Rules of Bankruptcy Procedure expires. See Cheung
v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59,
62 (2d Cir. 1990) (instructing district court that if
plaintiff, who could not proceed pro se,
“does not retain counsel and if the district court
declines to appoint counsel, the complaint should be
dismissed without prejudice”); Weaver v. State of
N.Y. 7. F.Supp.2d 234, 237 (W.D.N.Y. 1998) (dismissing
corporate plaintiff's action without prejudice where it
failed to appear through counsel.). The Clerk of Court is
directed to enter judgment for appellee and close the case.
 Record citations refer to the case
captioned above unless otherwise ...