Gagan, et al v. Sharar, et al

Filing 472

ORDER re Order to Show Cause Hearing scheduled for March 26, 2013 at 10:00 AM in Courtroom 606. Signed by Senior Judge Robert C Broomfield on 3/22/2013. (See Order for details.)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James L. Gagan,
c/o David G. Bray
Mariscal, Weeks, McIntyre
Friedlander, P.A.
2901 N. Central Ave.,
Suite 200
Phoenix, AZ 85012,

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Plaintiff/Judgment )
Creditor,
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vs.
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James A. Monroe
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12880 East Mercer Lane
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Scottsdale, AZ 85259,
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Defendant/Judgment Debtor, )
et al.
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No. CIV 99-1427-PHX-RCB

O R D E R

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Currently pending before the court is a

“Motion to

24 Withdraw as Counsel for Defendant Monroe” filed by his
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David H. Carmichael, on February 1, 2013 (Doc.

On February 11, 2013, this court ordered defendant

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“[a] response, if any,” to that

28 withdrawal motion by “no later than fourteen (14) days from

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the date of entry of this order[,]” i.e., by February 25,

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2013.

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To date, Mr. Monroe has not filed a response, timely or

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otherwise.

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See Ord. (Doc. 458) at 2:5-7 (emphasis in original).

In the meantime, on February 22, 2013, plaintiff Gagan

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filed a motion for an order to show cause (“OSC”),

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“request[ing] that this Court issue a rule requiring James

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Monroe to appear and show cause, if any, why he should not be

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held in contempt of this Court, and if found to be in

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contempt that the Court punish him by fine, the costs

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incurred by Plaintiff to pursue this matter and for any other

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relief the Court deems appropriate.”

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2:20-23.

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Monroe’s failure “to provide written discovery responses by

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February 18, 2013, in violation of this Court’s prior

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Orders.”

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February 27, 2013, this court granted plaintiff’s OSC,

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requiring Mr. Monroe to “appear before this Court on the 26th

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day of March, 2013 at 10:00 a.m. in Courtroom 606, Sandra Day

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O’Connor United States Courthouse, 401 West Washington,

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Phoenix, Arizona 85003[.]” Ord. (Doc. 466) at 1:23-25.

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Mot. (Doc. 464) at

The asserted basis for that motion was defendant

Id. at 2:14-15, ¶ 6 (citations omitted).

On

As demonstrated below, it is unclear from the record as

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presently constituted as to whether Mr. Monroe personally has

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had actual notice of any of the following: (1) his counsel’s

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motion to withdraw; (2) this court’s related filing order;

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(3) the motion for the OSC; and (4) this court’s order

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granting the OSC.

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LRCiv 83.3(b) governs attorney withdrawal, among other
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things.

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along with other information, to be provided in the

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attorney’s supporting “written application” for withdrawal.

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See LRCiv 83.3(b) (emphasis added).

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“Certification” indicates that

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address . . . is P.O. Box 5322, Scottsdale, AZ[] 85261[,]”

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but it does not, as LRCiv 83.3(b) mandates, provide Mr.

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Monroe’s “last known residence.”

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1:23-24.

The client’s “last known residence” is required,

Attorney Carmichael’s

Mr. Monroe’s “last known

See Cert. (Doc. 451-1) at

In any event, attorney Carmichael’s motion

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indicates that on February 1, 2013, a “COPY” of that motion,

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addressed to Mr. James Monroe at that P.O. Box address, was

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“deposited in the U.S. Mail[.]”

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See Mot. (Doc. 451) at 2.

As to this court’s order permitting Mr. Monroe to file a

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response to the withdrawal motion, the order itself

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explicitly indicated that a copy was to be provided to “James

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A. Monroe[,]” among others.

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Notice of Electronic Filing (“NEF”), originating in the

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office of the Clerk of the Court does not mention Mr. Monroe

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individually, however.

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Mr. Monroe’s current attorney of record, Mr. Carmichael, was

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electronically provided with a copy of the order.

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NEF at 2.

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Ord. (Doc. 458) at 2:20.

The

The NEF does indicate, though, that

Doc. 458

The NEF further states that notice of this court’s order

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was “sent by other means to those listed below if they are

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affected by this filing [.]” Id. (emphasis in original).

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Among those listed are Salt River Cablevision LLC and San

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Carlos Cablevision LLC, both “c/o James A[.] Monroe[,]”

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although two different addresses are provided – neither of
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which is Mr. Monroe’s purported P.O. Box mailing address. Of

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more import is the fact that copies of this court’s order

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mailed to those two entities, “c/o James A[.] Monroe[,]” were

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returned to this court as undeliverable.

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3.

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Doc. 460 at 2 and

In moving for an OSC, on February 22, 2013, plaintiff

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Gagan indicated that a copy of that motion was “placed . . .

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in the U.S. Mail, postage prepaid, first class[,]” and mailed

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to, among others,

“James A. Monroe 12880 East Mercer Lane

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Scottsdale, Arizona 85259[.]”

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The NEF indicates that Mr. Monroe’s attorney was

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electronically served with the motion for an OSC as well.

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Doc. 464 NEF at 1.

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plaintiff’s motion for an OSC was filed.

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Once again, Mr. Monroe’s attorney was electronically served

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with that Order.

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OSC Mot. (Doc. 464) at 4:4-7.

On February 27, 2013, the order granting
Ord. (Doc. 466).

Doc. 466 NEF at 1.

As stated at the outset, and as the foregoing shows, the

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record is unclear as to whether Mr. Monroe has had actual

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notice of: (1) his attorney’s motion to withdraw; (2) the

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court’s order permitting Mr. Monroe to file a response to

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that motion; (3) plaintiff Gagan’s motion for an OSC; and (4)

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this court’s order granting that OSC.

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prepared to address these actual notice concerns at the OSC,

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scheduled for March 26, 2012, at 10:00 a.m. in Courtroom 606

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of the Sandra Day O’Connor United States Courthouse, 401 West

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Washington Street, Phoenix, Arizona 85003.

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attorney David Carmichael, Mr. Monroe’s current counsel of

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record, should be prepared, to the extent possible, to advise
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Counsel should be

At a minimum,

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the court, with specificity, as to his personal knowledge of

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the facts and circumstances regarding Mr. Monroe’s actual

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knowledge of the four items listed above.

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minimum, plaintiff Gagan’s counsel, attorney David Bray, also

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should be prepared, to the extent possible, to advise the

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court, with specificity, as to his personal knowledge of the

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facts and circumstances surrounding actual notice to Mr.

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Monroe of the OSC motion and the OSC itself.

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DATED this 22nd day of March, 2013.

Similarly, at a

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Copies to counsel of record, James A. Monroe and Kimberly
Sullivan

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