United States v. Derrik Hagerman ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2670
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ERRIK H AGERMAN and W ABASH E NVIRONMENTAL
T ECHNOLOGIES, LLC,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 06-0139-CR-02—David F. Hamilton, Chief Judge.
S UBMITTED S EPTEMBER 5, 2008—D ECIDED S EPTEMBER 26, 2008
Before B AUER, C UDAHY, and P OSNER, Circuit Judges.
P OSNER, Circuit Judge. The defendants were convicted
of criminal violations of the Clean Water Act, and Wabash
was ordered to pay $250,000 in restitution to a federal
Superfund account and was placed on probation (18 U.S.C.
§ 3563) for five years. Corporate probation has been
called “a flexible vehicle for imposing a wide range of
sanctions having the common feature of continued judi-
cial control over aspects of corporate conduct.” Richard
2 No. 08-2670
Gruner, “To Let the Punishment Fit the Organization:
Sanctioning Corporate Offenders Through Corporate
Probation,” 16 Am. J. Crim. L. 1, 3 (1988); see also id. at 4-6.
The government, contending that Wabash had violated
the conditions of probation by refusing to begin paying
the restitution (and a $4,000 special assessment), that had
been ordered, petitioned the district court for relief,
as authorized by 18 U.S.C. § 3563(c). The court dismissed
the petition after the government and Wabash resolved
their differences by Wabash’s agreeing to start paying
restitution and to furnish specified information con-
cerning the company’s finances. Nevertheless, Wabash
has filed an appeal to this court from the order of dis-
missal, as has its codefendant, Hagerman.
Hagerman’s appeal must be dismissed because he
was not a party to the probation-violation proceeding and
no order naming him was entered. Wabash’s appeal must
also be dismissed, apart from doubts that Wabash was
aggrieved by the dismissal of the probation-violation
proceeding. Wabash has no lawyer in this court (it
was represented in the district court by a lawyer who
has since withdrawn). Hagerman, who is not a lawyer,
claims the right to represent Wabash because he “is not
only a major stockholder [presumably he means ‘member,’
since Wabash is an LLC, not a corporation] but is [also the]
current President of [Wabash].” And it was Hagerman
who filed this appeal on behalf of Wabash as well as
himself. He complains about the deal that Wabash
struck with the government, making this like an appeal by
a party that agrees to a settlement but later thinks better
of his decision and tries to get the appellate court to
rescind it.
No. 08-2670 3
A corporation is not permitted to litigate in a federal
court unless it is represented by a lawyer licensed to
practice in that court. Rowland v. California Men’s Colony,
506 U.S. 194, 202 (1993); Scandia Down Corp. v. Euroquilt,
Inc., 772 F.2d 1423, 1427 (7th Cir. 1985). A limited liability
company is not a corporation, but it is like one in being
distinct from a natural person. “Limited liability companies
are a ‘relatively new business structure allowed by state
statute,’ having some features of corporations and some
features of partnerships . . . . For example, ‘similar to a
corporation, owners have limited personal liability for
the debts and actions of the LLC’ . . . . ‘Other features
of LLCs are more like a partnership, providing manage-
ment flexibility’, . . . and in some cases affording ‘the
benefit of pass-through taxation.’ ” McNamee v. Department
of the Treasury, 488 F.3d 100, 107 (2d Cir. 2007) (citations
omitted).
We have not had occasion to rule on whether, like a
corporation, an LLC can litigate only if represented by a
lawyer. We can find only one appellate decision directly
on point: Lattanzio v. COMTA, 481 F.3d 137 (2d Cir. 2007)
(per curiam), held that an LLC can sue only if represented
by a lawyer, even if as in that case (and possibly in
this one, though when Wabash was created eight years
ago it had two other members) the LLC has only one
member. The same result, as noted in Lattanzio, has been
reached in cases involving one-man corporations, not only
our Scandia Down case but also United States v. High Country
Broadcasting Co., 3 F.3d 1244 (9th Cir. 1993) (per curiam);
National Independent Theatre Exhibitors, Inc. v. Buena Vista
Distribution Co., 748 F.2d 602, 609-10 (11th Cir. 1984), and
4 No. 08-2670
Capital Group, Inc. v. Gaston & Snow, 768 F. Supp. 264 (E.D.
Wis. 1991). A sole proprietorship may litigate pro se, RZS
Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 354 n. 4
(4th Cir. 2007); Lattanzio v. COMTA, supra, 481 F.3d at 140;
Lowery v. Hoffman, 188 F.R.D. 651, 653-54 (M.D.Ala. 1999),
because it has no legal identity separate from the propri-
etor himself. But a partnership may not, Lattanzio v.
COMTA, supra, 481 F.3d at 139-40; Eagle Associates v. Bank
of Montreal, 926 F.2d 1305, 1309-10 (2d Cir. 1991); New
Hampshire v. Settle, 523 A.2d 124, 129 (N.H. 1987); First
Amendment Foundation v. Village of Brookfield, 575 F. Supp.
1207 (N.D. Ill. 1983); contra, United States v. Reeves, 431 F.2d
1187 (9th Cir. 1970) (pungently criticized in the Settle case);
and as we said, an LLC is a cross between a corporation
and a partnership.
An individual is permitted by 28 U.S.C. § 1654 to
proceed pro se in a civil case in federal court because
he might be unable to afford a lawyer, or a lawyer’s fee
might be too high relative to the stakes in the case to
make litigation worthwhile other than on a pro se basis.
Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992) (“most
litigants who sue without a lawyer do so because they
cannot afford one”); DiAngelo v. Illinois Dept. of Public Aid,
891 F.2d 1260, 1264 (7th Cir. 1989) (concurring opinion)
(“there will always be cases where the stakes are so low,
the plaintiff so reprehensible, or the cause so unpopular
that . . . the case will proceed without the participation of
counsel”). There are many small corporations and corpora-
tion substitutes such as limited liability companies. But
the right to conduct business in a form that confers privi-
leges, such as the limited personal liability of the owners
No. 08-2670 5
for tort or contract claims against the business, carries
with it obligations one of which is to hire a lawyer if you
want to sue or defend on behalf of the entity. Pro se
litigation is a burden on the judiciary, e.g., Lattanzio v.
COMTA, supra, 481 F.3d at 139; Capital Group, Inc. v. Gaston
& Snow, supra, 768 F. Supp. at 265, and the burden is not
to be borne when the litigant has chosen to do business
in entity form. He must take the burdens with the
benefits. Lattanzio v. COMTA, supra, 481 F.3d at 140. From
that standpoint there is no difference between a corpora-
tion and a limited liability company, or indeed between
either and a partnership, which although it does not
provide its owners with limited liability confers other
privileges, relating primarily to ease of formation and
dissolution. That is why the privilege of pro se repre-
sentation is, as we noted, denied to partnerships too.
The appeals are
D ISMISSED.
9-26-08