Abraham v. Leigh et al

Filing 740

ORDER denying 737 Motion to Continue; denying 738 Motion re: 737 MOTION to Continue and Adjourn December 6 2022 Due to No Fly Order and Family Medical Emergency., 738 MOTION Terminate Plaintiff's Counsel Joshua Dou glass as Counsel of Record for Cause . Accordingly, Ms. Abraham's December 5, 2022 motions are DENIED. The parties shall be prepared for the one-day bench trial in this case on December 6, 2022. If Ms. Abraham wishes to appear virtua lly rather than in person, instructions to video participants will be sent via email in advance of the trial. The Clerk of Court is directed to terminate the pending motions at docket entries 737 and 738. SO ORDERED.. (Signed by Judge Katherine Polk Failla on 12/5/2022) (ks)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBYN ABRAHAM,
Plaintiff,
-v.ABBY LEIGH, in her Individual Capacity, as
Executrix of the Estate of Mitch Leigh, and as
Trustee for The Viola Fund and Abby Leigh Ltd.,

17 Civ. 5429 (KPF)
ORDER

Defendant.
KATHERINE POLK FAILLA, District Judge:
The Court is in receipt of two self-styled emergency motions from Plaintiff
and Counter-Claim Defendant Robyn Abraham, seeking adjournment of the
Court’s one-day bench trial in this case set for tomorrow, December 6, 2022.
(Dkt. #737, 738). 1 These motions follow Ms. Abraham’s letter of December 2,
2022, which letter was sent to the Court at 11:45 p.m., and which also
requested adjournment of the trial date and raising similar points. (Dkt. #735).
On December 3, 2022, the Court denied Ms. Abraham’s request for an
adjournment, and notified the parties by sending an Order to that effect via
email. For substantially the same reasons, the Court DENIES Ms. Abraham’s
latest motions to adjourn.

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The first of Ms. Abraham’s motions is a motion for adjournment, while the second is
both a motion to terminate her counsel of record, Joshua A. Douglass, Esq., and a
motion for adjournment. (Dkt. #737, 738). The Court has not yet heard from Mr.
Douglass, but recognizes the time-sensitivity of the two motions. Accordingly, it will
address the adjournment requests, and hold in abeyance the request for termination of
counsel.

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As noted time and time again, and as is evident from the docket in this
case, the Court has faced tremendous difficulties scheduling the one-day bench
trial in this case, due to Ms. Abraham. Indeed, on July 26, 2022, the Court
entered an Order, noting that in the prior two months alone, the Court had
adjourned two trial dates. (Dkt. #727). In that Order, the Court adjourned the
bench trial to September 9, 2022. (Id.). Just over one week before that new
trial date, attorney Joshua Douglass filed a notice of appearance on behalf of
Ms. Abraham (Dkt. #738), which appearance was then followed by a request
from Mr. Douglass to adjourn the September 9, 2022 trial date because Mr.
Douglass had only been recently retained and because of Ms. Abraham’s
proffered medical conditions. (Dkt. #729; see also Dkt. #731 (requesting the
same, in response to Counter-Claim Plaintiff’s opposition)). On September 2,
2022, the Court ordered the parties to meet and confer in response to Mr.
Douglass’s request (Dkt. #732), and then adjourned the trial to its current date
of December 6, 2022, by Order dated September 9, 2022 (Dkt. #734).
With particular respect to Ms. Abraham’s representations about her
health and a “no fly order,” it appears that Ms. Abraham was well-aware of her
medical status prior to December 2, 2022. Indeed, as noted above, the Court
previously adjourned this trial for the same reason months ago, and Ms.
Abraham could have made accommodations to allow for her appearance any
time during the ensuing months. Further, as the Court discussed in its Order
of December 3, 2022, the Court does not believe that a one-day bench trial will
substantially impair Ms. Abraham’s caretaking duties of her mother. If Ms.
2

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Abraham is indeed prohibited from flying to New York for this trial, the Court
will provide her the accommodation of appearing virtually (i.e., by Microsoft
Teams).
Ms. Abraham has also sought an adjournment based on alleged
misconduct and an inability to communicate with Mr. Douglass. As is clear
from the Court’s recitation of the recent procedural history of this case, Ms.
Abraham’s representations are at odds with the docket in this case. For
example, Ms. Abraham states that Mr. Douglass has “refused to prepare for
trial, refused to prepare any substantive work product since receiving Plaintiff’s
[f]ive [f]igure retainer last August, refused to communicate, refused to file any
substantive pleadings[,]” and so on. (Dkt. #738 at 2; see also id. at 10 (noting
that Mr. Douglass has failed to respond to over 150 communications since
August 2022)). However, Mr. Douglass was in communication with the Court
about Ms. Abraham’s case on August 31, 2022 (Dkt. #729), then again on
September 2, 2022 (Dkt. #731), and again on September 8, 2022 (Dkt. #733
(noting that “Ms. Abraham would not be prepared to fully engage on this in
November and would solely be permitted by doctors’ order to possibly testify
remotely” at that time (emphasis in original))). Thus, it appears that Mr.
Douglass and Ms. Abraham were in communication with one another at least
through early September.
In any event, even crediting Ms. Abraham’s allegations about lack of
communication and Mr. Douglass’s disciplinary issues, Ms. Abraham was
aware of these issues for weeks, if not months, before her eleventh-hour
3

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requests. Ms. Abraham notes that she has not been able to communicate with
Mr. Douglass since August (Dkt. #738 at 2), and sent him a letter by certified
mail on November 23, 2022, requesting that he “immediately notice the
Court … that [he is] unable to proceed on December 6, 2022” (id. at 18). Ms.
Abraham has once again proven beyond dilatory in communicating issues
related to the trial in this case to the Court, and only provided notice at the last
possible moment. Prior to Mr. Douglass’s appearance in this case, Ms.
Abraham was prepared to appear for trial pro se on multiple occasions. As
such, the Court sees no reason to delay trial again when Ms. Abraham is
capable of proceeding in her own capacity.
Accordingly, Ms. Abraham’s December 5, 2022 motions are DENIED.
The parties shall be prepared for the one-day bench trial in this case on
December 6, 2022. If Ms. Abraham wishes to appear virtually rather than in
person, instructions to video participants will be sent via email in advance of
the trial. The Clerk of Court is directed to terminate the pending motions at
docket entries 737 and 738.
SO ORDERED.
Dated: December 5, 2022
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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