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Rosedale Attractions & Shows, Inc. v. Long

United States District Court, D. Maryland, Southern Division

August 15, 2019

ROSEDALE ATTRACTIONS & SHOWS INC., Plaintiff,
v.
HEIDI LONG et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Defendant 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 be granted.

         FACTUAL BACKGROUND

         The 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 proprietor. Id.

         Ms. 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.

         Defendants' motion has been fully briefed. See ECF Nos. 13, 20-21. A hearing is unnecessary. See Loc. R. 105.6.

         DISCUSSION

         Ms. 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 organized; and
(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 ...


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