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

Filing 220

Order adopting 217 REPORT AND RECOMMENDATIONS re 182 MOTION for Sanctions. The motion for sanctions is granted in part and denied in part as set out. Attorneys Speagle and Zakaria are to provide the court with proof of receipt as set out. Defendants request to prove expenses is granted and such proof is to be filed by 3/19/12. ANZ USA, et al. are to show cause by 4/2/12 why defendants' claim does not constitute a reasonable amount, as set out. The Court will TUS 4/3/12. Defendants' motion to voluntarily dismiss the counterclaim without prejudice is granted. Final judgment will be entered after determination of sanctions. Signed by Judge Kristi K. DuBose on 3/5/2012. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANZ ADVANCED TECHNOLOGIES, LLC )
d/b/a ANZ USA, LLC, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
BUSH HOG, LLC, and
)
HENRY CROWN AND COMPANY,
)
)
Defendants.
)

CIVIL ACTION NO. 09-00228-KD-N

ORDER
This action is before the Court on the Report and Recommendation of the Magistrate
Judge dated February 7, 2012 (doc. 217)1 and the Motion to Voluntarily Dismiss Counterclaim
without Prejudice filed by defendants Bush Hog, LLC and Henry Crown and Company (doc.
179).
Service of this Order
As an initial consideration, Scott Speagle and M. Ali Zakaria, counsel for plaintiffs, have
filed a motion to withdraw as counsel for plaintiffs ANZ Advanced Technologies, LLC d/b/a
ANZ USA, (ANZ USA) and ANZ International Manufacturing Private Limited (ANZ
International) (doc. 213, 215). The motions have not been granted. Thus, attorneys Speagle and
Zakaria are ORDERED to provide this Court, on or before Friday, March 16, 2012, with
proof of receipt of this Order by their respective clients ANZ USA and ANZ International.
Speagle and Zakaria are reminded that proof of receipt is not the same as notice that documents
have been mailed.2
1

On notice from defense counsel that Paul Carroll was not present at the motion hearing,
the Report and Recommendation is modified to remove Carroll from the list of attorneys who
attended on behalf of Bush Hog, LLC. (doc. 217, p. 1, ¶ 2).
2

Magistrate Judge Nelson ordered Speagle and Zakaria to provide verification “of the
(Continued)

Report and Recommendation
After due and proper consideration of all portions of this file deemed relevant to the issue
raised, and there having been no objections filed, the Report and Recommendation of the
Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated February 7, 2012 (doc. 217), is
ADOPTED as the opinion of this Court.
Accordingly, it is ORDERED as follows:
1.

Defendants’ motion for sanctions (doc. 182) is GRANTED in part and

DENIED in part as follows:
a.

The motion for sanctions is GRANTED as to plaintiffs ANZ

USA and ANZ International and their principals, Irfan Sheriff and Rakesh Vashee, jointly and
severally. Sanctions will be imposed against these defendants, jointly and severally, in an
amount to be determined by this Court and consistent with the Report and Recommendation.
b.

The motion for sanctions is DENIED to the extent defendants

seek sanctions against Scott Speagle and M. Ali Zakaria.
2.

Defendants’ request for leave to prove their reasonable expenses incurred

as a result of ANZ USA’s and ANZ International’s repeated failure to comply with the Orders of
this Court, is GRANTED and defendants shall file such proof on or before Monday, March 19,
2012.
3.

ANZ USA and ANZ International and their principals, Irfan Sheriff and

Rakesh Vashee, shall SHOW CAUSE, on or before Monday, April 2, 2012, why defendants’
claim does not constitute a reasonable amount for the costs and fees incurred as a result of their
failure to comply the Court’s Orders

efforts they employed to confirm that service of this Order and the Report and Recommendation
on their clients has been perfected” (doc. 218). In response, Speagle and Zakaria filed a joint
notice stating that they had “notified” the plaintiffs and their principals by sending the Order and
Report and Recommendation by FedEx and Certified Mail Return Receipt Requested (doc. 219).
However, Speagle and Zakaria did not provide proof of receipt, they only notified the Court that
the documents had been mailed.

2

4.

The Court will take the matter under submission on April 3, 2012 for the

Magistrate Judge to prepare a Report and Recommendation as to an appropriate sanction.
Motion to Voluntarily Dismiss Counterclaim without prejudice filed by defendants Bush
Hog, LLC and Henry Crown and Company (doc. 179)
This action is before the Court on defendants’ motion to voluntarily dismiss their
Counterclaim without prejudice with each party to bear their own costs and fees except for the
award of sanctions to be imposed against ANZ USA and ANZ International as addressed herein.
Defendants also move the Court to delay the entry of judgment until the amount of sanctions has
been determined.
Upon consideration of this motion and in light of the Magistrate Judge’s Report and
Recommendation adopted herein as the Order of this Court, defendants’ motion to voluntarily
dismiss the counterclaim without prejudice (doc. 179) is GRANTED.
Accordingly, defendants’ Counterclaim (doc. 70, ¶¶ 10-11) is hereby DISMISSED
without prejudice, with each side to bear its own costs and fees, with the exception of the
sanctions to be determined by this Court.
The Court retains jurisdiction to determine the sanctions to be imposed against the
plaintiffs, jointly and severally.
Final Judgment shall be entered by separate document as required by Rule 58 of the
Federal Rules of Civil Procedure after determination of the sanctions.
DONE this 5th day of March, 2012.

/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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