Camellia Air 2, LLC v. Helispec, LLC et al

Filing 36

MEMORANDUM OPINION AND ORDER directing as follows: (1) the trial of this cause and all remaining deadlines set in the Uniform Scheduling Order are continued generally; (2) counsel for plf and the intervenor are directed to provide notice to the Court no later than 8/9/10 of any dates on which counsel is not available for trial between 11/1/2010 and 1/31/11; (3) by no later than 8/6/2010 any new counsel for Helispec shall file notices of appearance, as further set out in order; (4) the 26 MOTIO N for Summary Judgment is DENIED with leave to refile said motion or a different dispositive motion after the entry of the new Uniform Scheduling Order in this case; (5) Counsel for Plaintiff and the Intervenor shall file a notice with the Court indi cating the total amount billed or to be billed to his client for the preparing the Motion for Summary Judgment 26 , including but not limited to the number of billable hours attributable to each attorney and their customary hourly rate, by no later than August 6, 2010; (6) due to the pattern of inexcusable conduct and repeated failure to comply with orders of this Court in this case, the Court finds that Alverson be SANCTIONED pursuant to this Court's authority under FRCP 16(f), as further set out in order; ORDERING that Alverson shall pay to Allred & Allred, PC the sum provided to the Court pursuant to Paragraph 5 above on or before 8/13/10, as further set out in order; (7) upon complete compliance with the requirements of Paragraphs 3 and 6 of this memorandum opinion and order, the Court will likely grant the Amended motion to withdraw and motion to continue deadline for filing for summary judgment response, but that motion remains pending at this time; (8) all counsel and part ies are ADMONISHED to consider seriously attempting to resolve this case by mediation as soon as possible to avoid further legal expenses and damages, as further set out in order; (9) All counsel of records are REQUIRED to provide a copy of this Memo randum Opinion and Order to their clients by no later than August 5, 2010. Signed by Hon. Chief Judge Mark E. Fuller on 8/4/10. (Attachments: # 1 civil appeals checklist). Furnished to YG, HC & KG (terminates Pretrial Conference 09/29/2010; Non-Jury Trial 10/25/2010).(djy, )

Camellia Air 2, LLC v. Helispec, LLC et al

Doc. 36

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION C A M E L L IA AIR 2, LLC, P L A IN T IF F , R A Y M O N L. ROTON, IN T E R V E N O R -P L A IN T IF F , v. H E L IS P E C , LLC and HELISPEC, INC., D EFEN D A N TS. ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 2:09-cv-665-MEF (W O )

M E M O R A N D U M OPINION AND ORDER O n July 16, 2009, Plaintiff Camellia Air 2, LLC ("Plaintiff") filed suit against H e lis p e c , LLC and Helispec, Inc. (collectively "Helispec") alleging claims pursuant to 26 U .S .C . § 6221, et seq., the Tax, Equity and Fiscal Responsibility Act of 1982 ("TEFRA"). Plaintiff sough declaratory and injunctive relief, damages, including attorney's fees and the c o s ts of this action. On August 3, 2009, Helispec answered the Complaint. In so doing, it w a s represented by William Alverson ("Alverson"). The Court prompted the parties to submit a Report of Parties Planning Meeting p u rs u a n t to Federal Rule of Civil Procedure 26(f). After receiving this report and pursuant to Federal Rule of Civil Procedure 16, the Court issued a Uniform Scheduling Order (Doc. # 12), which set trial and other key deadlines for this case. Accordingly, as of October 5, 2 0 0 9 , the parties were on notice that: discovery was to be completed by no later than August

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30, 2010; dispositive motions were to be filed by no later than July 1, 2010; and this case was to be tried on October 25, 2010. On March 31, 2010, one of the members of Plaintiff R a ym o n d L. Roton ("the Intervenor"), sought leave to intervene as an additional plaintiff. Helispec did not object and the leave to intervene was granted. On July 1, 2010, Plaintiff filed a timely motion for summary judgment (Doc. # 26) s u p p o rte d by a brief and certain exhibits (Doc. # 27). Consistent with its normal practice, the C o u rt entered an Order setting a deadline of July 20, 2010, for Helispec's response to the m o tio n for summary judgment. Alverson filed no response or opposition to Plaintiff's m o tio n . Instead on July 19, 2010, Alverson filed a motion seeking to withdraw as counsel f o r Plaintiff because the "case involves tax matters and [Alverson] is no proficient in that a re a of the law and has been unable to work towards a resolution of the case." (Doc. # 29). Noting that his clients, which by law cannot appear without counsel in a legal action, would n e e d additional time to obtain new counsel, Alverson urged a delay of an unspecified d u ra tio n . Id. The Court denied the motion on July 20 2010. Fewer than four hours after the Court's denial of his first motion to withdraw, A lv e rs o n filed another motion. Alverson again urged the Court to allow him to withdraw b e c a u s e he lacked expertise in tax matters such as those implicated by this suit. See Doc. # 31. Alverson also indicated that he and his clients have begun to view the case differently a n d that replacement counsel would be needed to represent Helispec's interests in this matter. Additionally, he specifically asked the Court to continue the July 20, 2010 deadline for

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Helispec's response to summary judgment. Id. Counsel for Plaintiff and the Intervenor filed th e ir objection to any continuance which would cause the case to be continued from its O c to b e r 25, 2010 trial setting. On August 3, 2010, the Court convened a hearing on Alverson's second motion to w ith d ra w and the objection thereto. At this hearing, Alverson represented that Helispec had s e c u re d the services of one of more attorneys to represent the Helispec entities in this case. Furthermore, he argued that the delay created by his withdrawal from this action would be b rie f . Counsel for Plaintiff and the Intervenor noted that Alverson lacked good cause for w ith d ra w in g at this late date and cautioned that further delay could further damage his c lie n ts . Additionally, he urged inquired about the availability of mediation for this case. Having considered all of the foregoing, it is hereby ORDERED as follows: 1 . The trial of this cause and all remaining deadlines set in the Uniform Scheduling O rd e r are CONTINUED GENERALLY. 2. Counsel for Plaintiff and the Intervenor are DIRECTED to provide notice to the C o u rt by no later than August 9, 2010 of any dates on which counsel is not available for trial b e tw e e n November 1, 2010 and January 31, 2011. 3. By no later than August 6, 2010, any new counsel for Helispec shall file notices o f appearance. Additionally, Helispec's new counsel are DIRECTED to provide notice to th e Court by no later than August 9, 2010 of any dates on which counsel is not available for tria l between November 1, 2010 and January 31, 2011.

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4. The Motion for Summary Judgment (Doc. # 26) is DENIED with leave to refile s a id motion or a different dispositive motion after the entry of the new Uniform Scheduling O rd e r in this case. 5. Counsel for Plaintiff and the Intervenor shall file a notice with the Court indicating th e total amount billed or to be billed to his client for the preparing the Motion for Summary J u d g m e n t (Doc. # 26), including but not limited to the number of billable hours attributable to each attorney and their customary hourly rate, by no later than August 6, 2010. 6. Due to the pattern of inexcusable conduct and repeated failure to comply with o r d e r s of this Court in this case, the Court finds that hereby ORDERS that Alverson be S A N C T IO N E D pursuant to this Court's authority under Federal Rule of Civil Procedure 1 6 (f ). The factual predicate for the imposition of sanctions is simple. Alverson has re p e a te d ly failed to comply with the orders of this Court, in particular its scheduling orders, a n d his failure to comply with these orders is without substantial justification. It is

O R D E R E D that Alverson shall pay to Allred & Allred, P.C. the sum provided to the Court p u rs u a n t to Paragraph 5 above on or before August 13, 2010. It is further ORDERED that im m e d ia te ly upon payment of this amount, Alverson shall file with this Court a written c e rtif ic a tio n signed pursuant to Federal Rule of Civil Procedure 11 indicating that he has paid th e fine. A copy of the receipt for payment of the fine shall be attached as an exhibit to this c e rtif ic a tio n . It is further ORDERED that Alverson shall pay this fine himself and shall not s e e k to recover it as an expense from his clients. Failure to comply with any aspect of

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this Order or any other Order by this Court may result in the imposition of further s a n c tio n s . 7 . Upon complete compliance with the requirements of Paragraphs 3 and 6 of this M e m o ra n d u m Opinion and Order, the Court will likely grant the Amended Motion to W ith d ra w and Motion to Continue Deadline for Filing for Summary Judgment Response, but th a t motion remains pending at this time. 8. All counsel and parties are ADMONISHED to consider seriously attempting to r e s o lv e this case by mediation as soon as possible to avoid further legal expenses and d a m a g e s . The Court reminds all involved that the Court offers a program of mediation w ith o u t charge which involves the Court's very able and experienced Magistrate Judges. 9. All counsel of records are REQUIRED to provide a copy of this Memorandum O p in io n and Order to their clients by no later than August 5, 2010. DONE this the 4th day of August, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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