D'Amico v. Target Huntington Manager ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ELEANOR CLAIRE D’AMICO, Case No.: 2:21-cv-00796-APG-NJK 4 Plaintiff Order Accepting Report and Recommendation, Overruling Objections, 5 v. Denying Motion for Attorney’s Fees, and Dismissing the Case 6 TARGET HUNTINGTON MANAGER, TARGET CORPORATION, and BRIAN [ECF Nos. 4, 7] 7 CORNELL, 8 Defendants 9 This is one of many cases filed by Hank Falstad purportedly acting as the attorney for 10 each individual plaintiff. In this case, Falstad contends he has been engaged by plaintiff Eleanor 11 D’Amico to make the defendants comply with the Americans with Disabilities Act (ADA) with 12 respect to their buildings and sites. The complaint is signed by Falstad as “Architect for 13 Plaintiff.” ECF No. 1-1 at 22. It is not signed by D’Amico or an attorney representing D’Amico. 14 On May 7, 2021, Magistrate Judge Koppe ordered D’Amico to file an amended 15 complaint because (1) Falstad is not an attorney, so he cannot represent D’Amico in this court; 16 (2) the complaint was not signed by D’Amico or her attorney as required by Federal Rule of 17 Civil Procedure 11(a); and (3) neither D’Amico nor Falstad paid the filing fee or applied for 18 leave to proceed in forma pauperis. ECF No. 3 at 29-30. Judge Koppe also ordered that the 19 amended complaint must be signed by D’Amico or her attorney and she must pay the filing fee 20 or file an application for leave to proceed in forma pauperis by June 7, 2021. Id. at 30. 21 D’Amico did not file an amended complaint, pay the filing fee, or file an in forma 22 pauperis application, so Judge Koppe recommended that I dismiss this case without prejudice for 23 failure to prosecute. ECF No. 4 at 28-29. D’Amico did not object, but Falstad did. Falstad’s 1 response largely consists of explaining who he is and what he hopes to achieve on behalf of 2 making building owners comply with the ADA. ECF No. 5. He also filed a supplemental 3 response in which he contends there should be a new special court to address whether a 4 particular property is ADA complaint. ECF No. 6. He contends no filing fee is required because 5 the plaintiff is reporting a case to the executive branch of government. Id. at 2. He does not 6 address the other points raised in Judge Koppe’s order. He also filed a motion for attorney’s 7 fees, labeled as “invoice,” in which he contends that he is entitled to attorney’s fees in the 8 amount of $6,000,000 as a prevailing party. ECF No. 7 at 1. 9 I review de novo Judge Koppe’s recommendation to dismiss this case. Fed. R. Civ. P. 10 72(b); 28 U.S.C. § 636(b)(1)(B); Local Rule IB 3-2(b). Falstad cannot represent D’Amico 11 because he is not an attorney. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) 12 (“It is well established that the privilege to represent oneself pro se provided by [28 U.S.C.] 13 § 1654 is personal to the litigant and does not extend to other parties or entities.”). Additionally, 14 D’Amico did not comply with Judge Koppe’s order to file an amended complaint signed by her 15 or her counsel as Rule 11(a) requires, nor did she pay the filing fee or seek in forma pauperis 16 status. Judge Koppe properly weighed the factors supporting dismissal based on D’Amico’s 17 failure to comply with the order and I adopt her analysis. See ECF No. 6 at 28-29. 18 Falstad’s argument that no filing fee is necessary because this is a complaint to the 19 executive branch is meritless. This is a lawsuit filed in federal court. And the defendants are 20 private individuals and a commercial enterprise. None of them is a member of the executive 21 branch. I therefore overrule Falstad’s objections and adopt Judge Koppe’s recommendation to 22 dismiss this case without prejudice. 23 ] I deny Falstad’s request for attorney’s fees. He is not an attorney nor has he or D’ Amico prevailed in this action. 3 I THEREFORE ORDER that Magistrate Judge Koppe’s report and recommendation (ECF No. 4) is accepted, interested party Hank Falstad’s motion for attorney’s fees (ECF No. 7) denied, and this case is dismissed without prejudice. 6 I FURTHER ORDER the clerk of court to close this case. 7 DATED this 19th day of August, 2021. g OIE. ANDREW P.GORDON 10 UNITED STATES DISTRICT JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23