United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Heidi Long owns and operates a business under the name
“Penn Wood Shows.” 3d Am. Compl. ¶¶
4-5, ECF No. 22-1. The plaintiff in this breach-of-contract
suit has named both Ms. Long and her business as defendants.
Ms. Long has moved to dismiss “Penn Wood Shows”
as a defendant, arguing that, as a sole proprietorship, it is
not subject to suit. Mot. to Dismiss, ECF No. 13. I am
persuaded that Ms. Long is correct. Her motion therefore will
plaintiff in this suit, Rosedale Attractions & Shows,
Inc., provides entertainment and food for fairs, festivals,
and other events. See 3d Am. Compl. ¶ 3.
Defendants are in the carnival business. See Id.
¶¶ 4-5. The Third Amendment Complaint asserts that
Penn Wood Shows “is, on information and belief, a sole
proprietorship, ” and that Ms. Long is its sole
Long's motion for partial dismissal contends that, as a
matter of law, there is no distinction between a sole
proprietorship and its owner. See Mot. to Dismiss
¶ 2. It argues, accordingly, that “the allegations
against Penn Wood Shows as a separate legal entity should be
stricken and dismissed.” Id. ¶ 4.
Plaintiff says it does not disagree “with the premise
that there is a ‘complete identity of a business entity
with the proprietor himself.'” Opp'n 1, ECF No.
20 (quoting Bushey v. N. Assurance Co. of Am., 766
A.2d 598, 603 (Md. 2001)). It argues, nevertheless, that it
is up to the plaintiff to decide whether to sue a sole
proprietorship, its owner, or both. See Id. at 1-2.
Plaintiff further seeks the benefit of discovery to verify
whether Penn Woods Shows is, in fact, a sole proprietorship.
Id. at 2.
motion has been fully briefed. See ECF Nos. 13,
20-21. A hearing is unnecessary. See Loc. R. 105.6.
Long takes the position that Penn Wood Shows, as a sole
proprietorship, “does not have the capacity to be a
party.” Reply 3, ECF No. 21. Under Rule 17(b) of the
Federal Rules of Civil Procedure, “[c]apacity to sue or
be sued is determined as follows:
(1) for an individual who is not acting in a representative
capacity, by the law of the individual's domicile;
(2) for a corporation, by the law under which it was
(3) for all other parties, by the law of the state where the
court is located, except that:
(A) a partnership or other unincorporated association with no
such capacity under that state's law may sue or be sued
in its common name to enforce a substantive right existing
under the United States Constitution or laws; and
(B) 28 U.S.C. §§ 754 and 959(a) govern the capacity
of a receiver appointed by a United States court to sue or be
sued in a United States court.
Fed. R. Civ. P. 17(b). Penn Wood Shows is neither an
individual nor a partnership. Therefore, under subsection
(b)(3), the issue is governed by Maryland law. See
Brantley v. Kuntz, 98 F.Supp.3d 884, 886 n.1 (W.D. Tex.
2015); Adams Wrecker Serv. v. City of Blanchard, No.
13-126-D, 2013 WL 5726022, at *1 n.2 (W.D. Okla. Oct. 21,
2013); Carter v. King, No. 12-2288-VEH, 2013 WL
4045286, at *2 (N.D. Ala. Aug. 8, 2013); Carter ...