United States District Court, D. Massachusetts
ELENA KURBATZKY, authorized agent of HARMONY HOUSE HEALTH CARE, LLC, Plaintiff,
DANIEL KRISTOLA, et al., Defendants.
MEMORANDUM AND ORDER
Gail Dein, U.S. Magistrate Judge.
reasons set forth below, Harmony Home Health Care LLC must
retain counsel and pay the filing fee. If Elena Kurbatzky
desires to proceed with this litigation, an amended complaint
must be filed and will be subject to preliminary screening
pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A.
Elena Kurbatzky, proceeding pro se, filed a
complaint on behalf of a home healthcare provider,
challenging the government's actions in terminating the
company as a Medicare provider and seeking to recoup alleged
Medicare overpayments. (Docket No. 1). Named as defendants
are the United Centers for Medicare and Medicaid Services
(“CMS”) and three CMS administrators.
Id. at ¶ I(B) (the defendants). Although the
case caption identifies the plaintiff as “Elena
Kurbatzky, authorized agent of Harmony Home Health Care LLC,
” the final section of the complaint identifies the
plaintiff as “Harmony Home Health Care LLC”
followed by “Elena Kurbatzky, authorized agent.”
Id. at ¶ V(A).
can be gleaned from the complaint and accompanying exhibits,
Kurbatzky brings this action on behalf Harmony Home Health
Care, LLC, a company that is alleged to be a limited
liability company incorporated under the laws of the
Commonwealth of Massachusetts with its principal place of
business in Massachusetts. Id. at ¶
II(B)(1)(b). The complaint alleges that Harmony Home Health
Care LLC “was unreasonably terminated in Medicare (as
Medicare provider) on 8/31/2017 [and] unreasonably initially
terminated by MassHealth and unreasonably suspended
payments.” Id. at ¶ III (statement of
claim). For relief, the complaint seeks reinstatement of
Harmony Home Health Care LLC “1) as Mass. Health
Provider; 2) as Medicare Provider; 3) release money suspended
by National Government Services, Inc., [and] 4) pay loss[, ]
due to non-professional termination[, in the amount of] $1,
200, 000.” Id. at ¶ IV (relief).
the complaint, Kurbatzky filed a motion for leave to proceed
in forma pauperis accompanied by an inmate
transaction report (Docket No. 2). This action was assigned
pursuant to the Court's Program for Random Assignment of
Civil Cases to Magistrate Judges.
initial matter, it appears that this case cannot proceed as
filed because the plaintiff is a limited liability company.
Absent a showing that Kurbatzky is a licensed attorney able
to practice before this court, she cannot proceed on behalf
of Harmony Home Health Care LLC, nor can the company proceed
in forma pauperis. Corporations are unable to appear
pro se, and the Court will not recognize the
appearance of a firm or corporation unless it is accompanied
by the appearance of at least one attorney. District of
Massachusetts Local Rule 83.5.5(c) (providing that “[a]
corporation, partnership, limited liability company, trust,
estate, or other entity that is not an individual may not
appear pro se.”); Rowland v. California
Men's Colony, Unit II Men's Advisory Council,
506 U.S. 194, 199-206 (1993) (recognizing the majority rule
that prohibits corporations, partnerships and associations
from appearing in federal court “otherwise than through
a licensed attorney, ” and linking the right to proceed
in forma pauperis to this limitation, concluding that an
association of prison inmates did not qualify as a
“person” under 28 U.S.C. § 1915, 42 U.S.C.
§ 1983); Instituto de Educacion Universal Corp. v.
United States Dep't of Educ., 209 F.3d 18 (1st Cir.
2000) (distinguishing rule that corporation must be
represented by counsel by holding that corporate officer may
sign notice of appeal, so long as counsel is retained
promptly to prosecute the appeal); Volumetric Imaging,
Inc. v. Teledyne, Inc., 194 F.R.D. 373, 375 (D. Mass.
2000) (“Corporations, despite their pervasive role in
our modem society, are not human beings. Although we are
prone to regard them as living entities, they are only
creatures of the state subject to government regulation and
control. One of the time-hallowed restrictions on
corporations has been that, in court proceedings, they must
be represented by a licensed attorney. There is nothing
unfair, illegal or unconstitutional in this
Elena Kurbatzky seeks to bring suit on behalf of Harmony Home
Health Care LLC. However, Kurbatzky may act pro se
only on her own behalf, and she may not represent the
interests of Harmony Home Health Care LLC because she is not
alleged to be a duly-licensed attorney. See 28
U.S.C. § 1654 (appearance personally or by counsel);
District of Massachusetts Local Rule 83.5.5(b) (providing
that “[a]n individual appearing pro se may not
represent any other party and may not authorize any other
individual who is not a member of the bar in this district to
appear on his or her behalf.).
Harmony Home Health Care LLC intends to proceed in this
action, it must retain counsel and pay the filing fee. To the
extent Elena Kurbatzky wishes to proceed on her own behalf,
she will be granted an opportunity to file an amended
complaint. Because she is in custody, Kurbatzky is advised
that prisoner plaintiffs are not entitled to a complete
waiver of the filing fee. If she proceeds on her own behalf,
and her motion to proceed in forma pauperis is
granted, the Court will direct the appropriate prison
official to withdraw an initial partial payment from the
plaintiff's account, followed by payments on a monthly
basis until the entire $350.00 filing fee is paid in full.
See 28 U.S.C. § 1915(b)(1)-(2). Even if the
action is dismissed upon a preliminary screening,
see 28 U.S.C. §§ 1915(e)(2), 1915A, the
plaintiff remains obligated to pay the filing fee, see
McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir.
(1) if Kurbatzky wishes to proceed with this action, she must
file an amended complaint within 21 days of the date of ...