Veltheim v. International Bodytalk Association, Inc. et al

Filing 33

ORDER: Plaintiff Christopher Veltheim's Unopposed Motion to Vacate Dismissal Order, for Leave to File Opposition Papers Out of Time, and for Leave to File an Amended Complaint (Doc. # 29 ) is GRANTED. The Court's Order granting the Mo tion to Dismiss (Doc. # 27 ) is VACATED. The Clerk is directed to re-open the case. Plaintiff is authorized to file his proposed Amended Complaint on or before July 20, 2016, which moots the Motion to Dismiss. (Doc. # 16 ). The Court will issue a Case Management and Scheduling Order in accordance with its normal procedures. Signed by Judge Virginia M. Hernandez Covington on 7/15/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTOPHER VELTHEIM,
Plaintiff,
v.

Case No. 8:16-cv-298-T-33JSS

INTERNATIONAL BODYTALK
ASSOCATION, INC., et al.
Defendants.
_____________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Christopher Veltheim’s Unopposed Motion to Vacate Dismissal
Order, for Leave to File Opposition Papers Out of Time, and
for Leave to File an Amended Complaint (Doc. # 29), which was
filed on July 14, 2016.

The Court grants the Motion as

outlined below.
A.

The Complaint and the Court’s Jurisdiction
On

February

8,

2016,

Christopher

Veltheim,

who

is

represented by Mark S. Guralnick, Esq., initiated this action
by

filing

his

Complaint

against

International

Bodytalk

Association, Inc., John Veltheim, and Ester Veltheim. (Doc.
#

1).

The

Involuntary

Complaint

Dissolution

contains
and

the

Liquidation

following
of

counts:

International

Bodytalk Association (Count I), Equitable Accounting and
Dissolution of International Bodytalk Association (Count II),
Breach of Fiduciary Duty (Count III), Declaratory Relief
(Count IV), Libel, Slander, and Slander Per Se (Count V) and
Attorney’s Fees (Count VI).
this

case

citizenship.

is

predicated

The Court’s jurisdiction over
upon

complete

diversity

of

The Complaint alleges that Plaintiff is a

citizen of Australia, that Defendant International Bodytalk
Association is a Florida corporation with its principal place
of business in Sarasota, Florida, and that the individual
Defendants, John Veltheim and Esther Veltheim are citizens of
Florida. (Doc. # 1 at ¶¶ 3-6).

The Complaint also alleges

that the amount in controversy exceeds $75,000. (Id. at ¶ 1).
B.

The First Case Closure
On March 8, 2016, the Court issued an Order directing

Plaintiff to file a status report regarding service of process
by March 11, 2016. (Doc. # 5).
to the Court’s Order.

Plaintiff failed to respond

Accordingly, on March 14, 2016, the

Court filed a second Order once again directing Plaintiff to
file the required status report regarding service of process.
(Doc. # 6). The Court commented: “The Court is left to wonder
if the plaintiff still desires to prosecute this case.” (Id.).
However, Plaintiff did not comply with the Court’s Order and

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did not file a status report or any other document for that
matter.
On March 18, 2016, with no status report having been
filed by Plaintiff, and with no indication on the docket that
Plaintiff intended to prosecute the action, the Court filed
an Order dismissing the case without prejudice for failure to
prosecute. (Doc. # 7).

However, on May 12, 2016, after the

case had already been closed, Plaintiff filed a Motion to
Reinstate the Complaint, for an Enlargement of Time to Perfect
Service, for Leave to Serve Defendants by Private Process
Server and for Other Relief. (Doc. # 9).

Plaintiff filed a

separate Memorandum in support of the Motion (Doc. # 10) and
a separate affidavit in support of the Motion. (Doc. # 11).
Plaintiff asserted that the action should be reopened because
Plaintiff’s counsel did not receive various emails from the
Court. (Doc. # 9 at 2).
On May 16, 2016, the Court entered an Order granting the
Motion by reopening the case, but remarking that Plaintiff’s
counsel “did not actively monitor the docket” and failed to
comply

with

multiple

Local

Rules

and

Administrative

Procedures in effect in the Middle District of Florida. (Doc.
# 12).

The Court took the time to highlight that Local Rule

3.01(a) of the Middle District of Florida states: “In a motion

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or other application for an order, the movant shall include
a

concise

statement

of

the

precise

relief

requested,

a

statement of the basis for the request, and a memorandum of
legal authority in support of the request, all of which the
movant shall include in a single document not more than
twenty-five

pages.”

(Doc.

#

12

at

6)(citing

Local

Rule

3.01(a), M.D. Fla.). The Court explained that it was a
violation of the Local Rules to “devote[] three filings to
addressing the same relief.” (Id.).
C.

The Case Management Proceedings
The case was reopened on May 16, 2016. And, on June 2,

2016, the Court filed a Notice setting a Case Management
Hearing

for

June

29,

2016.

(Doc.

#

15).

That

Notice

explained: “Lead Counsel must appear in person at the Case
Management Hearing.” (Id.).

Thereafter, on June 21, 2016,

Defendants timely responded to the Complaint by filing a
Motion to Dismiss. (Doc. # 16).

In addition, in preparation

for the Case Management Hearing, Defendants’ counsel filed
the Case Management Report on June 22, 2016. (Doc. # 19).
On the eve of the Case Management Hearing, Plaintiff’s
counsel filed a procedurally defective and untimely Motion
requesting leave to appear at the Case Management Hearing by
telephone based on a scheduling conflict. (Doc. # 22).

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The

Court noted that it would consider moving the Case Management
Hearing to July 1, 2016, but requested further information
from Plaintiff’s counsel. (Doc. # 23).

On June 27, 2016,

Plaintiff’s counsel filed a Motion to Continue the Case
Management Hearing, explaining that yet another scheduling
conflict prevented him from being available for the Court’s
suggested date of July 1, 2016. (Doc. # 24).
move

the

case

forward,

the

Court

In an effort to

adopted

Plaintiff’s

suggested date for July 13, 2016, for the Case Management
Hearing. (Doc. # 25).
D.

The Second Case Closure
Thereafter, on July 11, 2016, the Court, having received

no response in opposition to Defendants’ Motion to Dismiss,
granted Defendants’ Motion to Dismiss. (Doc. # 27). The Court
cancelled the Case Management Hearing that was set for July
13, 2016, and closed the case.
At this juncture, Plaintiff has filed another round of
procedurally defective documents requesting that the Court
once again reopen the case.

The Court gives Plaintiff’s

counsel credit for admitting that it was his own error that
caused him to miss the deadline to respond to the Motion to
Dismiss.

However, the Court notes that Plaintiff’s counsel

continues to violate the Local Rules and continues to protract

5 

the case with his apparent inability to monitor the docket.
Although the Court’s Order dated May 16, 2016, explained that
requests for relief from the Court should be contained in a
single

document,

not

to

exceed

25

pages

(Doc.

#

12),

Plaintiff’s counsel’s request to open the case encompasses
multiple docket entries (Doc. ## 29-32) and spans 45 pages.
The

Court

does

not

condone

Plaintiff’s

counsel’s

dilatory conduct and repeated failure to comply with the
Court’s

Local

Rules

and

instructions.

However,

in

the

interest of fairness, and because opposing counsel agrees to
the relief, the Court grants the Motion.

The Court’s Order

granting the Motion to Dismiss (Doc. # 27) is vacated. The
Court re-opens the case for a second time, and will allow
Plaintiff to file his proposed Amended Complaint (Doc. # 291) on or before July 20, 2016.

The Motion to Dismiss is

denied as moot based on the Court’s directive herein that
Plaintiff file an Amended Complaint.
The Court declines to reschedule the Case Management
Hearing.

The

Court

will

issue

a

Case

Management

and

Scheduling Order in accordance with its normal procedures.
The Court notes that the parties have selected a certified
mediator, Bruce Blitman, Esq., as their mediator in the Case
Management Report. (Doc. # 19-1 at 2).

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However, based on the

circumstances of this case, the Court is taking a very active
role

in

managing

this

case

and

determines

that

it

is

appropriate to appoint Peter Grilli, Esq. as the mediator in
an

effort

to

move

this

case

forward

toward

its

final

resolution.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Christopher Veltheim’s Unopposed Motion to
Vacate Dismissal Order, for Leave to File Opposition
Papers Out of Time, and for Leave to File an Amended
Complaint (Doc. # 29) is GRANTED.

(2)

The Court’s Order granting the Motion to Dismiss (Doc.
# 27) is VACATED.

(3)

The Clerk is directed to re-open the case.

(4)

Plaintiff is authorized to file his proposed Amended
Complaint on or before July 20, 2016, which moots the
Motion to Dismiss. (Doc. # 16).

(5)

The Court will issue a Case Management and Scheduling
Order in accordance with its normal procedures.
DONE and ORDERED in Chambers in Tampa, Florida, this

15th day of July, 2016.

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