Veltheim v. International Bodytalk Association, Inc. et al
Filing
69
ORDER: Plaintiff Christopher Veltheim's Motion for Reconsideration of the February 3, 2017, Order Awarding Counsel Fees and Costs, and for Leave for Plaintiff to File Opposition to the said Motion Nunc Pro Tunc (Doc. # 68 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 2/15/2017. (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 Motion for Reconsideration of the
February 3, 2017, Order Awarding Counsel Fees and Costs, and
for Leave for Plaintiff to File Opposition to the said Motion
Nunc Pro Tunc (Doc. # 68), which was filed on February 13,
2017.
A.
The Court denies the Motion for the reasons below.
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
contained
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 alleged 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 alleged
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.).
2
However, Plaintiff did not comply with the Court’s Order and
did not file a status report or any other document.
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).
However, the “emails” were, in fact,
Orders that demanded Plaintiff’s counsel’s compliance.
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
3.01(a) of the Middle District of Florida states: “In a motion
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
4
telephone based on a scheduling conflict. (Doc. # 22).
The
Motion violated Local Rule 3.01(g) because it did not contain
a certificate of conference with opposing counsel.
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).
Plaintiff’s
counsel remarked in the Motion: “I apologize to the Court for
the delay in filing this motion, as it was an oversight in my
office.” (Id. at 2).
In an effort to move the case forward,
the Court adopted Plaintiff’s suggested date of 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 as an unopposed motion.
(Doc. # 27).
The Court cancelled the Case Management Hearing
that was set for July 13, 2016, and closed the case.
Then, on July 14, 2016, Plaintiff filed an Unopposed
Motion to Vacate Dismissal Order, For Leave to File Opposition
5
Papers Out of Time, and for Leave to File an Amended Complaint
(Doc. # 29).
In the Motion, Plaintiff’s counsel indicated:
“as a result of excusable neglect, Plaintiff did not realize
that such a motion [to dismiss] had actually been filed and
therefore inadvertently failed to respond to the motion on a
timely basis.” (Id. at 2).
The Court granted the motion by
allowing Plaintiff to file an Amended Complaint, but noted
“Plaintiff’s counsel continues to violate the Local Rules and
continues to protract the case with his apparent inability to
monitor the docket.” (Doc. # 33 at 5-6).
warned
that
it
“does
not
condone
The Court also
Plaintiff’s
counsel’s
dilatory conduct and repeated failure to comply with the
Court’s Local Rules and instructions.” (Id. at 6).
E.
Summary Judgment Proceedings and Award of Fees and Costs
On August 5, 2016, Plaintiff filed a Second Amended
Complaint
with
leave
of
the
Court.
(Doc.
##
40-42).
Defendants filed a timely Motion for Summary Judgment on all
counts of the Second Amended Complaint. (Doc. # 51).
After
hearing from Plaintiff, the Court granted the Motion for
Summary Judgment on the Merits and directed that the Clerk
enter Judgment in favor of Defendants. (Doc. # 64).
On
January 5, 2017, the Clerk entered Judgment in favor of
Defendants. (Doc. # 65).
Defendants timely filed a Motion
6
for
Attorney’s
Fees
and
Non-Taxable
Costs
(Doc.
#
66).
Plaintiff had the opportunity under the Local Rules to file
a Response in Opposition to the Motion, but he failed to do
so.
Accordingly, on February 3, 2017, the Court granted the
Motion for Fees and Non-Taxable Costs as an unopposed Motion.
(Doc. # 67).
At
this
belated
juncture,
Plaintiff
seeks
the
opportunity to respond to the Motion for Fees and Costs.
Plaintiff
submits:
“On
January
19,
2017
and
continuing
thereafter for a period of two weeks, Plaintiff’s counsel
left
the
State
of
Florida
to
attend
to
legal
matters
throughout the country, first appearing in the State of
Maryland in a deposition, and then in New Jersey, and then in
two
significant
California.”
proceedings
(Doc.
#
68
in
at
Southern
2).
and
Northern
Apparently,
“through
inadvertence, during counsel’s absence, the filing of the
Motion
for
Attorneys’
Fees
and
Non-Taxable
Costs
was
overlooked by counsel’s office staff and was not brought to
the attention [of Plaintiff’s] counsel.” (Id.).
Plaintiff’s
counsel further indicates that “his tardiness is attributable
to inadvertence of counsel and by the circumstances relating
to
counsel’s
absence
from
the
7
jurisdiction
and
by
the
inability of the attorneys . . . to communicate with each
other in this instance.” (Id. at 3)(emphasis in original).
F.
Excusable Neglect not Demonstrated
A Court may grant an extension of time after a deadline
has expired “if the party failed to act because of excusable
neglect.” Fed. R. Civ. P. 6(b).
“Although inadvertence,
ignorance of the rules, or mistakes construing the rules do
not usually constitute ‘excusable neglect’ it is clear that
‘excusable neglect’ under Rule 6(b) is a somewhat elastic
concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.” Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
392 (1993).
The Court enumerated four factors to be used in
determining excusable neglect: “the danger of prejudice to
the [nonmovant], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the
movant, and whether the movant acted in good-faith.” Id. at
395.
Excusable
nature,
“taking
neglect
account
determinations
of
all
are
relevant
equitable
in
circumstances
surrounding the party’s omission.” Id.
Plaintiff’s counsel filed a 28-page submission, but did
not specifically address any of the four factors that the
8
Court considers in making an excusable neglect determination.
Rather, Plaintiff’s counsel argues that the fees and costs
awarded are excessive.
However, his arguments put the cart
before the horse. Plaintiff’s counsel has provided a vague
and wholly inadequate explanation for once again missing a
deadline in this case. “A party asserting excusable neglect
must first provide candid and forthcoming details about the
pertinent
history
or,
simply
stated,
must
explain
what
happened.” Demint v. Nationsbank of Fla., N.A., 208 F.R.D.
639, 643 (M.D. Fla. 2002). Plaintiff’s assertion that he
missed the deadline to respond due to his travel outside of
the state of Florida and his staff’s failure to bring the
matter to his attention does not provide the level of detail
required for this Court to make a finding of excusable
neglect,
especially
in
light
of
Plaintiff’s
counsel’s
repeated failure to comply with Court Orders and deadlines.
The
Court
secretary’s
recognizes
failure
to
that,
on
calendar
a
occasion,
deadline
a
has
legal
been
determined to constitute excusable neglect. See e.g. Walter
v. Blue Cross & Blue Shield United, 181 F.3d 1198, 1202 (11th
Cir. 1999)(describing “the failure of a former secretary of
Walter’s attorney to record the applicable deadline” as an
“innocent
oversight”
justifying
9
a
finding
of
excusable
neglect).
However, the facts in Walter were not marked by a
pattern of delay and shifting of responsibility and blame to
legal staff, as has occurred in the present case.
Likewise, Plaintiff’s counsel has not professed that he
acted in good faith. But, even if counsel had made such an
assertion, the Court would be hard-pressed to find good faith
here, based on Plaintiff’s unabated and flagrant disregard
for the Court’s rules and procedures.
In addition, the Court
recognizes that delay in question is not lengthy.
However,
this case has been resolved on the merits and is now closed.
As such, the interest of finality counsels against reopening
any portion of the proceedings.
On balance, and considering the record as a whole, the
Court finds that the equities do not militate in favor of
reopening the matter of fees and non-taxable costs and,
accordingly,
the
Court
will
not
authorize
Plaintiff
to
belatedly tender a response to Defendants’ Motion.1
Accordingly, it is
1
While Christopher Veltheim may have been harmed by his
counsel’s inability to meet deadlines in this case, the
Eleventh Circuit has noted that clients voluntarily choose
their attorneys and are to be held accountable for the acts
or omissions of their chosen attorneys. Young v. Palm Bay,
358 F.3d 859, 864 (11th Cir. 2004)(citing Pioneer Inv. Serv.
Co., 507 U.S. at 396-97).
10
ORDERED, ADJUDGED, and DECREED:
Plaintiff
Reconsideration
Christopher
of
the
Veltheim’s
February
3,
2017,
Motion
Order
for
Awarding
Counsel Fees and Costs, and for Leave for Plaintiff to File
Opposition to the said Motion Nunc Pro Tunc (Doc. # 68) is
DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
15th day of February, 2017.
11
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