Gilberti v. Welling et al

Filing 18

ORDER: Plaintiff's Renewed Motion for Judgment on the Pleadings 9 is denied. Defendants' Motions for Sanction for Professional Misconduct 15 17 are denied. Signed by Judge James S. Moody, Jr on 10/28/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NANCY GILBERTI,
Plaintiff,
v.

Case No: 8:13-cv-821-T-30EAJ

NANCY WELLING and
DAVID WELLING,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Plaintiff's Renewed Motion for
Judgment on the Pleadings (Dkt. #9) and Defendants' Response in Opposition to Motion
(Dkt. #16), Defendants’ Motions for Sanctions for Professional Misconduct (Dkts. #15
and #17). Upon review and consideration, it is the Court’s conclusion that Plaintiff's
Renewed Motion for Judgment on the Pleadings should be denied. Further, Defendants’
Motions for Sanctions should be denied.
The Defendants correctly argue out in their response that since Plaintiff Nancy
Gilberti died on August 15, 2013, and Plaintiff’s attorney filed the Motion on September
24, 2013 the attorney should not have filed the Motion. The death of a client terminates
the relationship between the attorney and the client, therefore an attorney no longer has
authority to act on behalf of the client after her death. Cheramie v. Orgeron, 434 F.2d

721, 725 (5th Cir.1970).1 Therefore, the attorney had no authority to file the Motion on
behalf of Nancy Gilberti, and it is therefore denied.
Defendants filed two Motions for Sanctions against attorney Paul Fawkes, based
on his delay in informing the Defendants of Plaintiff’s death until October 8, 2013.
Defendants accuse Mr. Fawkes of “conducting a bullying, hurry up offense” and making
it appear as if Defendants would not cooperate with case management. Further, they
request sanctions because he filed the Renewed Motion for Judgment on the Pleadings a
month after the Plaintiff’s death. Although Defendants are pro se, they are still bound by
the Federal Rules of Civil Procedure and the Local Rules of the Middle District of
Florida.
The Defendants did not comply with Local Rule 3.01(a) in that they did not
include any case law in support of their request for sanctions. They also failed to comply
with Rule 3.01(g) in that they did not include a statement that they conferred with
opposing counsel before filing the motions and whether opposing counsel agreed with the
relief requested. To the extent that Defendants move for sanctions under Rule 11 of the
Federal Rules of Civil Procedure, the Defendants failed to serve the Motion to counsel
requesting withdrawal of the Renewed Motion for Judgment on the Pleadings before
filing the Motions for Sanctions with the Court. See Fed. R. Civ. P. 11. Therefore, the
Court denies Defendants’ Motions for Sanctions.

1

The Eleventh Circuit Court of Appeals adopted as binding precedent all prior decisions
of the former Fifth Circuit Court of Appeals issued prior to October 1, 1981. Bonner v. City of
Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).

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It is therefore ORDERED AND ADJUDGED that:
1.

Plaintiff's Renewed Motion for Judgment on the Pleadings (Dkt. #9) is
denied.

2.

Defendants’ Motions for Sanction for Professional Misconduct (Dkt. #15
and #17) are denied.

DONE and ORDERED in Tampa, Florida, this 28th day of October, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2013\13-cv-821 judgment on pleadings.docx

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