ANZ USA, LLC et al v. Bush Hog, LLC et al

Filing 198

ORDER denying 194 Motion/Notice of Withdrawal of Attorney Speagle, at this time; denying 195 Motion to Strike; denying 196 Motion to Strike; granting 192 Motion for Leave to File Excess Pages, as set out and to be filed by 5/17/11; the request of Mr. Speagle and Mr. Zakaria for oral arguments will be address when the issues have been fully briefed by the parties. Signed by Magistrate Judge Katherine P. Nelson. on 5/6/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ANZ ADVANCED TECHNOLOGIES, LLC
d/b/a ANZ USA, LLC, et al.,
Plaintiffs,
v.
BUSH HOG, LLC, et al.,
Defendant.

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) CIVIL ACTION NO. 09-00228-KD-N
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ORDER
On May 4, 2011, two matters were filed with the Court: (1) a request (doc. 194),
made pursuant to Local Rule 83.5(h) of this Court1, by Scott Michael Speagle and the
firm of Webster, Henry, Lyons, White, Bradwell and Black, P.C. for leave to withdraw as
counsel for the plaintiffs, ANZ International and ANZ USA (collectively “ANZ”); and
(2) Attorney Speagle’s motion (doc. 195) to either strike certain arguments in defendants’
reply brief (doc. 193) or permit him to file a Surreply Brief.2 On May 5, 2011, Attorney

1

Local Rule 83.5(h) provides:

(h) Duration of Representation. Unless disbarred or suspended, attorneys shall
be held at all times to represent the parties for whom they appear of record in the first
instance until, after formal motion and notice to such parties and to opposing counsel,
they are permitted to withdraw from such representation. The court may, however,
permit withdrawal without formal motion and notice, if other counsel has entered his or
her appearance for the party.
2

The arguments at issue relate to the defendants’ motion for sanctions (doc. 182) and
reply (doc. 192), which have now been referred to the undersigned for a recommendation.

M. Ali Zakaria filed a similar motion (doc. 196) to either strike certain argument’s in
defendants’ reply brief (doc. 193) or permit him to file a Surreply Brief.
Upon consideration of these matters, it is ORDERED as follows:
1.

The request of Attorney Speagle and his firm to withdraw (doc. 194) is

DENIED, at this time. This request, and its certificate of service, contains no indication
that Mr. Speagle or any other member of his firm have notified either his client or cocounsel, M. Ali Zakaria, regarding their intent to withdraw at this juncture.
Consequently, it appears that Mr. Speagle and his firm are relying on that portion of
Local Rule 83.5(h) which authorizes the court, in its discretion, to “permit withdrawal
without formal motion and notice, if other counsel has entered his or her appearance for
the party.” However, Mr. Zakaria has made it clear to the Court that his role has been
limited from the outset to one in the nature of a mere liaison between ANZ and its lead
counsel. Specifically, in response (doc. 129) to the Court’s Order of June 22, 2010 (doc.
127), Mr. Zakaria unequivocally stated that:
[My] role in this litigation has been limited to acting as the advisor to
Plaintiffs and explaining the nuances of the US legal system based on the
legal services provided by Robert Bradford and Royal Dumas, who have
acted as the lead counsels. [I] will not be taking the role of the lead counsel.
(Doc. 129 at 2). Mr. Zakaria reasserted this position recently in his opposition to
defendants’ motion for sanctions (doc. 191):
From the inception of this lawsuit, [I] relied on lead counsel Robert
Bradford of Hill, Hill & Carter, and then Scott Speagle of Webster & Henry
to draft and file all pleadings and motions with court, review discovery
requests from Defendants, prepare Plaintiff‟s discovery requests, request
documents from ANZ in order to prepare responses to Defendant‟s
requests for discovery, review documents and information submitted by

ANZ that was responsive to Defendant‟s discovery requests, review the
availability of such responsive documents and information, and then
prepare and file with the court appropriate objections, responses and briefs
to discovery disputes.
[I] assisted the lead counsels with client communications and
explained to ANZ the nuances of the U.S. laws and justice system. This
limited role of the undersigned however does not mean that at any time the
undersigned counsel believed that ANZ principals had altered documents or
had failed to provide computer hard drives to Defendants intentionally.
(Doc. 191 at 7, emphasis added). In view of his limited role throughout this litigation, it
is at best questionable that Mr. Zakaria has appeared for ANZ within the meaning of
Local Rule 83.5(h). Inasmuch as the ANZ corporations are considered artificial entities
which cannot appear in federal court pro se, the withdrawal of Mr. Speagle and his firm
would leave the plaintiffs essentially unrepresented. See e.g., Palazzo v. Gulf Oil Corp.,
764 F.2d 1381, 1385 (11th Cir. 1985)(“The rule is well established that a corporation is
an artificial entity that can act only through agents, cannot appear pro se, and must be
represented by counsel.”), cert. denied, 474 U.S. 1058 (1986); Streeter v. Office of
Douglas R. Burgess, LLC, 2008 WL 508456 (M.D. Ala. 2008) (holding while the
individual defendant could proceed pro se, the limited liability company was required to
have representation by counsel). Consequently, the request for withdrawal must be
denied.
2.

Mr. Speagle’s motion to strike (doc. 195) is DENIED. However, Mr.

Speagle’s alternative motion for leave to file a “Surreply” to defendants’ reply (doc. 192)
is GRANTED provided that such Surreply brief is limited to the alleged “arguments
raised for the first time in [defendants’] Reply” and is filed no later than May 17, 2011.

3.

Mr. Zakaria’s motion to strike (doc. 196) is DENIED. However, Mr.

Zakaria’s alternative motion for leave to file a “Surreply” to defendants’ reply (doc. 192)
is GRANTED provided that such Surreply brief is limited to the alleged “arguments
raised for the first time in [defendants’] Reply” and is filed no later than May 17, 2011.
4.

The request of Mr. Speagle and Mr. Zakaria for oral arguments will be

addressed when the issues have been fully briefed by the parties.
Done this 6th day of May, 2011.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE