Reverend Michael Jon Kell v. David J. Smith

Case: 17-15696 Date Filed: 07/18/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-15696
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-04374-RWS

REVEREND MICHAEL JON KELL,
THE FIRST MELIORITE CHURCH,
THE FIRST MELIORITE CHURCH OF CURACAO,
Self-Representing As A Matter Of Constitutional State
Law As Noncorporate Nonstatutory Entities,

Plaintiffs-Appellants,

versus

DAVID J. SMITH,
Clerk of the U.S. Appellate 11th Circuit, Atlanta,

Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Georgia
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(July 18, 2018)
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Before TJOFLAT, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

Michael Kell, the First Meliorite Church, and the First Meliorite Church of

Curacao (“Plaintiffs”), proceeding pro se, appeal the District Court’s non-final

order directing the Churches to obtain counsel, or risk dismissal of their complaint

in equity under 28 U.S.C. § 1651 against David Smith, the Clerk of this Court.

The District Court ordered the Churches to obtain counsel because artificial entities

are not permitted to represent themselves in federal court. Plaintiffs contend that

the Churches are permitted to represent themselves because Georgia law applies in

the present case and allows unincorporated churches to self-represent. They

further argue that federal law also permits unincorporated entities to represent

themselves. Next, they aver that Kell, as the Churches’ pastor, can represent

himself and the Churches. Finally, they argue that the order requiring the

Churches to obtain counsel violated various constitutional rights. For the

foregoing reasons, we affirm.

I.

We begin with jurisdiction. We have an obligation to review sua sponte

whether we have jurisdiction to entertain an appeal. Thomas v. Blue Cross & Blue

Shield Ass’n, 594 F.3d 814, 818 (11th Cir. 2010).

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An otherwise non-final order may be deemed appealable under the

“collateral order doctrine.” Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048,

1052 (11th Cir. 2008). The collateral order doctrine provides that “an order is

appealable if it (1) conclusively determines the disputed question; (2) resolves an

important issue completely separate from the merits of the action; and (3) is

effectively unreviewable on appeal from a final judgment.” Id. We have held that

orders denying pro se status fit squarely within the scope of the collateral order

doctrine and, thus, are immediately reviewable for appeal because such orders are

separate from the underlying claim and the “harm in erroneously denying a party

leave to proceed pro se . . . cannot be repaired after a judgment on the merits.”

Devine v. Indian River Cty. Sch. Bd., 121 F.3d 576, 579–80 (11th Cir. 1997),

overruled in part on other grounds, Winkelman ex rel. Winkelman v. Parma City

Sch. Dist., 550 U.S. 516, 127 S. Ct. 1994 (2007).

In this appeal, Plaintiffs challenge the District Court’s order instructing the

Churches to obtain counsel. This falls within the collateral order doctrine.

Accordingly, we have jurisdiction over the present appeal.

II.

Next, we address whether federal law or Georgia law applies. The district

courts have original jurisdiction of civil actions arising under the laws of the

United States. 28 U.S.C. § 1331. In civil actions in federal court, state law applies

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to any issue not governed by federal law. 28 U.S.C. § 1652; Mid-Continent Cas.

Co. v. Am. Pride Bldg. Co., LLC, 601 F.3d 1143, 1148 (11th Cir. 2010). Where

jurisdiction is founded on diversity and no federal question is involved, we must

apply substantive state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct.

817, 822 (1938). Federal Rule of Civil Procedure 17(b) indicates that state law

controls the capacity of parties to sue or be sued, but does not address their right to

self-represent. Fed. R. Civ. P. 17(b).

Here, federal law controls because the Plaintiffs brought their complaint in

equity seeking a writ pursuant to 28 U.S.C. § 1651, a federal statute. This gave the

District Court federal-question jurisdiction. Moreover, Rule 17(b) did not require

the court to apply state law regarding the Churches’ right to self-representation.

That Rule only addresses parties’ capacities to sue or be sued, not their capacity to

accept or decline representation.1 Thus, the District Court did not err by applying

federal law.

III.

Having established that federal law governs the matter, we now turn to the

Churches’ self-representation rights under that law. Parties are permitted by

statute to plead and conduct their cases personally or by counsel as the rules of the

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Moreover, their complaint could not have been based on diversity jurisdiction because
they indicated that they were not seeking damages and did not show that they were citizens of a
different state than Smith.
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federal courts permit. 28 U.S.C. § 1654. The Supreme Court has noted that, in

general, the lower courts have uniformly read § 1654 to disallow corporations,

partnerships, or associations from appearing in federal court except through a

licensed attorney. Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council,

506 U.S. 194, 202, 113 S. Ct. 716, 721 (1993). This Court is among those that

have read the statute that way: we have noted that § 1654 “appears to provide a

personal right that does not extend to the representation of the interests of others.”

Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008) (emphasis added). We

have also recognized the well-established rule that a corporation is an artificial

entity that cannot appear pro se and must be represented by counsel. Palazzo v.

Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985). This is so even when the

person seeking to represent the corporation is its president and major shareholder.

Id.; see also Nat’l Indep. Theater Exhibitors, Inc. v. Buena Vista Distrib. Co., 748

F.2d 602, 609 (11th Cir. 1984) (reasoning that, by requiring a licensed attorney

who can be sanctioned for his conduct to represent corporations, the rule protects

“the court and the public from unscrupulous and irresponsible behavior”).

The local rules for the Northern District of Georgia are consistent with

§ 1654. They indicate that when an attorney seeks to withdraw from

representation of a corporation, he or she must notify the client that a corporation

may only be represented in court by an attorney and that a corporate officer may

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not represent the corporation unless the officer is also an attorney licensed to

practice law in Georgia. N.D. Ga. L.R. 83.1E.(2)(b)(I).

Here, the District Court did not abuse its discretion in ordering the Churches

to obtain counsel. Under federal law, the Churches were not entitled to represent

themselves because the federal statute conferring the right to self-representation is

limited by federal courts’ local rules and the Northern District of Georgia’s rules

prohibit corporate entities from representing themselves, a limitation that applies to

all artificial entities, not just ones that have incorporated by statute. Likewise, Kell

could not represent the Churches because he is not a licensed attorney.

Accordingly, the District Court did not abuse its discretion by requiring the

Churches to obtain counsel.

IV.

This leaves only Plaintiffs’ federal constitutional claims. The Due Process

and Equal Protection Clauses of the Fourteenth Amendment prohibit states from

depriving any person of life, liberty, or property, without due process of law, and

denying to any person within their jurisdiction equal protection of the laws. U.S.

Const. amend. XIV, § 1. The Due Process Clause of the Fifth Amendment

prohibits the federal government from depriving any person of life, liberty, or

property without due process of law. U.S. Const. amend. V. The Due Process

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Clause of the Fifth Amendment also has an equal protection component that

applies to the federal government. United States v. Scrushy, 721 F.3d 1288, 1305

(11th Cir. 2013).

Substantive due process protects fundamental rights—those that are

“implicit in the concept of ordered liberty.” McKinney v. Pate, 20 F.3d 1550, 1556

(11th Cir. 1994). However, where a right is created only by state law, it is not

subject to substantive due process protection. Id.

Pro se filings are held to a less stringent standard than those drafted by

attorneys and thus are liberally construed. Tannenbaum v. United States, 148 F.3d

1262, 1263 (11th Cir. 1998). However, where a pro se litigant fails to raise a legal

claim on appeal, the claim is abandoned, and we will not review it. Timson, 518

F.3d at 874. Where an appellant makes only passing reference to an issue or raises

it in a perfunctory manner, without providing supporting arguments or authority,

that claim is considered abandoned and need not be addressed on appeal. Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).

Although Plaintiffs reference the separation of church and state and

violations of their rights to equal protection, we need not review the issues because

they offer no supporting arguments and thereby abandon such claims. Plaintiffs

also have not established that they suffered any violation of their Fourteenth

Amendment due process rights because their assertions are based on the District

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Court’s order, not on the conduct of any state actor. Construed to assert due

process claims under the Fifth Amendment, their arguments still fail. First, the

Plaintiffs make no argument to establish that they were denied procedural due

process in the present proceedings. Second, in arguing that the Churches possess

the fundamental right to represent themselves, they cite only Georgia law, which

cannot create a substantive due process right under the federal Constitution.

Accordingly, we affirm the District Court’s order directing the Churches to

obtain counsel.

AFFIRMED.

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