Helena Chemical Company v. Porter et al

Filing 90

ORDER granting 89 Joint MOTION to Dismiss all claims against deft Justin Porter with prejudice; 86 MOTION to Extend Time is moot; defts Danny Porter, Sarah Porter, and Porter Farms have up to and including 14 days from the entry of this Order to answer the second amended complaint; 87 MOTION by Stephen L. Gershner and Benjamin A Kent to Withdraw as counsel of record for defts Danny W Porter, Sarah Porter, and Porter Farms is GRANTED; attorneys Gershner and Kent are directed to mail a copy of this Order and the second amended complaint to separate defts, via certified mail, return receipt requested, and to file an affidavit of mailing with the Court. Signed by Judge Susan Webber Wright on 1/5/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

HELENA CHEMICAL COMPANY
doing business as HELENA FINANCE
Plaintiff
V.
DANNY W. PORTER; SARAH
PORTER, JUSTIN PORTER, and
PORTER FARMS, a partnership

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NO: 4:10CV01193 SWW

Defendants
ORDER
Before the Court are (1) Plaintiff’s and Defendant Justin Porter’s joint motion to dismiss
with prejudice all claims against Defendant Justin Porter (docket entry #89); (2) defense
counsel’s second motion to be relieved as attorney of record for Defendants Danny W. Porter,
Sarah Porter, and Porter Farms (docket entry #87) and Plaintiff’s response stating no opposition
(docket entry #88); and (3) Defendants’ motion for an extension of time up to and including
January 13, 2011, in which to answer or otherwise respond to the second amended complaint
(docket entry #86). After careful consideration, the motion to dismiss claims against Defendant
Justin Porter will be granted, the motion to withdraw as counsel will be granted pursuant to the
conditions stated in this order, and the deadline for responding to the second amended complaint
will be extended up to and including fourteen (14) days following the entry date of this order.
Joint Motion to Dismiss Claims as to Justin Porter
Plaintiff and Defendant Justin Porter report that they have settled, and they jointly move
to dismiss the complaint, with prejudice, as to Defendant Justin Porter.

The motion will be

granted. Plaintiff reserves all claims against Defendants Danny Porter, Sarah Porter, and Porter
Farms.
Second Motion to be Relieved as Counsel for Separate Defendants
By order entered December 2, 2011, the Court denied defense counsel’s first motion to
be relieved as counsel for Defendants Danny Porter, Sarah Porter, and Porter Farms because it
was not clear whether the separate defendants had received reasonable notice of the motion to
withdraw. Now before the Court is counsel’s second motion to withdraw, along with proof that
counsel attempted to notify the separate defendants of the motion to withdraw via letters sent by
certified mail, return receipt required. Defense counsel reports that the separate defendants
have not responded to the letters and that the separate defendants cannot be reached by
telephone. According to counsel, the only known telephone number for the separate defendants
has been disconnected or is no longer in service.
The Court finds that the motion to withdraw should be granted. However, defense
counsel is directed to mail a copy of this order and the second amended complaint to the
separate defendants, via certified mail, return receipt requested, and to file an affidavit of mailing
with the Court.
Defendants Danny Porter, Sarah Porter, and Porter Farms have up to and including
fourteen (14) days from the entry date of this order in which to answer or otherwise respond to
the second amended complaint.
If Defendants Danny Porter, Sarah Porter, and Porter Farms have retained new counsel,
counsel should enter an appearance in this case immediately.
If Defendants Danny Porter, Sarah Porter, and Porter Farms the choose to proceed

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without counsel (pro se) they are obligated to comply with the Federal Rules of Civil Procedure
and the Local Rules of this Court,1 including Local Rule 5.5(c)(2), which provides as follows:
It is the duty of any party not represented by counsel to promptly notify the Clerk
and the other parties to the proceedings of any change in his or her address, to
monitor the progress of the case, and to prosecute or defend the action diligently. A
party appearing for himself/herself shall sign his/her pleadings and state his/her
address, zip code, and telephone number. If any communication from the Court to
a pro se plaintiff is not responded to within thirty (30) days, the case may be
dismissed without prejudice. Any party proceeding pro se shall be expected to be
familiar with and follow the Federal Rules of Civil Procedure.
Motion to Extend Time for Answer
Along with the motion to withdraw, defense counsel filed a motion to extend the time to
file an answer or otherwise respond to the second amended complaint. As stated above,
Defendants Danny Porter, Sarah Porter, and Porter Farms have up to and including fourteen (14)
days from the entry date of this order in which to file an answer or otherwise respond to the
second amended complaint. Accordingly, the motion to extend time is moot.
IT IS THEREFORE ORDERED that the joint motion to dismiss claims against
Defendant Justin Porter (docket entry #89) is GRANTED. All claims against Defendant Justin
Porter are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the second motion to withdraw as counsel (docket
entry #87) is GRANTED. Attorneys Stephen L. Gershner and Benjamin A. Kent are terminated
as attorneys for Defendants Danny Porter, Sarah Porter, and Porter Farms. Attorneys Gershner
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The Federal Rules of Civil Procedure are available in many libraries and bookstores and
the Local Rules can be obtained from the District Clerk for the Eastern District of Arkansas.
Additionally, the Local Rules and the Federal Rules of Civil Procedure are available on the
Court’s website: www.are.uscourts.gov. To access the Federal Rules of Civil Procedure via
the Court’s website, go to “Links,” find the heading “Federal Links” and click on “Federal Rules
of Civil Procedure” below the heading. A direct link to “Local Rules” is provided on the home
page of the Court’s website.
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and Kent are directed to mail a copy of this order and the second amended complaint to the
separate defendants, via certified mail, return receipt requested, and to file an affidavit of mailing
with the Court.
IT IS FURTHER ORDERED that Defendants Danny Porter, Sarah Porter, and Porter
Farms have up to and including fourteen (14) days from the entry date of this order in which to
answer or otherwise respond to the second amended complaint.
If Defendants Danny Porter, Sarah Porter, and Porter Farms have retained new counsel,
he or she should enter an appearance in this case immediately.
IT IS SO ORDERED THIS 5TH DAY OF JANUARY, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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