Ceglia v. Zuckerberg et al

Filing 595

RESPONSE to Motion re 579 MOTION to Withdraw as Attorney NOTICE OF MOTION filed by Facebook, Inc., Mark Elliot Zuckerberg. (Attachments: # 1 Certificate of Service)(Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
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Civil Action No. 1:10-cv-00569RJA

DEFENDANTS’ RESPONSE TO THE MOTION TO WITHDRAW
BY CEGLIA’S COUNSEL DEAN BOLAND

Thomas H. Dupree, Jr.
Erik R. Zimmerman
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]
November 14, 2012

Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

MEMORANDUM
On October 26, 2012, Plaintiff Paul Ceglia was arrested by federal agents on felony fraud
counts. Doc. No. 589-1. Three days later, Ceglia’s lawyer Dean Boland told the New York
Times, “If I thought this was a fraud, I would have bailed out two seconds later.” Southwell
Decl., Ex. A. The next morning, Boland moved to withdraw as counsel of record. Doc. No. 579.
Boland seeks to be the tenth law firm to abandon its representation of Ceglia in this case.
In support of his motion, Boland submitted two documents: (1) an “in camera
communication” describing the “personal reasons” that purportedly justify Boland’s request to
withdraw (the “Communication”) and (2) a publicly filed memorandum in which Boland denies
that his request has anything “to do with any belief” that Ceglia is committing fraud (Doc. No.
580).
I.

Defendants Do Not Oppose Boland’s Request to Withdraw, Provided That
Withdrawal Does Not Delay Dismissal Of Ceglia’s Fraudulent Lawsuit.
Two factors guide this Court’s determination of a motion to withdraw: “the reasons for

withdrawal and the impact of the withdrawal on the timing of the proceeding.” Sang Lan v. AOL
Time Warner, Inc., No. 11-cv-02870 (LBS)(JCF), 2011 WL 5170311, at *1 (S.D.N.Y. Oct. 31,
2011). “[D]istrict courts have typically considered whether the prosecution of the suit is likely to
be disrupted by the withdrawal of counsel.” Whiting v. Lacara, 187 F.3d 317, 320 (2d Cir.
1999).
Given Ceglia’s extensive history of litigation misconduct, and the timing of Boland’s
motion, Defendants are concerned that Ceglia and his lawyers may be attempting to obstruct this
Court’s processes or to gain tactical advantage in Ceglia’s criminal case. There is absolutely no
reason, however, that Boland’s departure should delay dismissal of this fraudulent lawsuit.

Defendants’ pending Motion to Dismiss (Doc. No. 319) is fully briefed and ripe for decision.1
Furthermore, Paul Argentieri has served as Ceglia’s counsel of record from the beginning of this
case—indeed, Argentieri defended Ceglia in a prior civil lawsuit brought by the New York State
Attorney General, prepared Ceglia’s original Verified Complaint (Doc. No. 1-4), and was
entrusted with access to the safety deposit box in which the forged Work for Hire Document
presented to Defendants’ experts was stored.
Accordingly, Defendants do not oppose Boland’s motion, provided that his withdrawal
does not give Ceglia a pretext to further obstruct this Court’s processes or to delay the Court’s
determination of Defendants’ Motion to Dismiss. Should the Court conclude—following a
searching inquiry—that Boland’s request is justified, Defendants respectfully request that the
Court enter a conditional grant and state that such approval shall not be construed as authorizing
any further delay by Ceglia in conducting any aspect of this litigation. A conditional grant is
with precedent in this case: the Court’s June 5, 2012 Order granting Ceglia’s seventh, eighth, and
ninth former law firms’ withdrawal motion included such a condition. See Doc. No. 423
(cautioning Ceglia that any requests for enlargements of time based on the withdrawal would be
viewed with disfavor); see also Schine v. Crown, No. 89-cv-03421 (MJL), 1993 WL 127199, at
*1 (S.D.N.Y. Mar. 31, 1993).
Needless to say, Boland’s withdrawal would not excuse his participation in Ceglia’s
fraudulent scheme, which occurred after Defendants advised Boland of his heightened duty,
pursuant to Rule 11, to investigate the factual basis for continuing to prosecute this fraudulent
lawsuit. Defendants intend to hold accountable all those who aided in Ceglia’s fraud—including

1

The deadline for Ceglia’s Opposition to Defendants’ Motion for Judgment on the Pleadings (Doc. No. 321) is
November 19, 2012, and will thus be submitted before the scheduled November 27th hearing on Boland’s
withdrawal motion. See Doc. No. 565, 572.

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his attorneys and former attorneys—notwithstanding Defendants’ conditional consent to
Boland’s withdrawal.
II.

This Court Should Order Disclosure Of Boland’s Improper In Camera
Communication.
Boland’s self-serving in camera Communication violates the Local Rules of the Western

District of New York and is contrary to Second Circuit authority. This Court should therefore
order the Communication publicly docketed, or at least disclosed to Defendants, in advance of
the scheduled November 27, 2012 hearing on Boland’s motion. Doc. No. 582.
First, Boland’s in camera Communication violates the Local Rules. Boland has not made
the “substantial showing” necessary to restrict public access to Court documents, as required by
Local Rule 5.3(a). See also Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 (2d Cir. 2004)
(noting qualified constitutional and common rights of access to judicial documents).
Furthermore, by submitting in camera a statement of “personal reasons” while filing publicly a
self-serving memorandum—that he admits was for “the media” (Doc. No. 580 at 2)—Boland has
violated Local Rule 83.2(d)(1). That Rule, which governs attorney motions to withdraw, directs
an attorney to file a bare-bones Notice of Motion stating that he wishes to submit his reasons for
withdrawal in camera.2 It does not authorize the submission of explanatory memoranda that
purport to detail the reasons that are not implicated by the attorney’s withdrawal. In this way,
Boland improperly uses confidentiality as a sword and as a shield, selectively describing his
withdrawal to the public while cloaking the reasons underlying that withdrawal via in camera
submission.
Second, the law in this Circuit is clear: in camera submission of the reasons underlying
an attorney’s withdrawal is justified “where necessary to preserve the confidentiality of the
2

Boland’s Notice of Motion does not state that he wishes to submit his reasons for withdrawal in camera, in
violation of Rule 83.2(d)(1). See Doc. No. 579.

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attorney-client relationship between a party and its counsel.” Team Obsolete Ltd. V. A.H.R.M.A.
Ltd, 464 F.Supp.2d 164, 165 (E.D.N.Y. 2006); see also Diamond “D” Construction Corp. v.
New York State Dept. of Labor, No. 00-CV-335C(F), 2004 WL 1663992, at *1 (W.D.N.Y. July
23, 2004) (Foschio, J.) (unsealing documents filed in support of attorney’s motion to withdraw
because “no subjects of a confidential matter or work product, nor other information to which the
attorney-client privilege may apply, will be revealed if the documents do not remain under
seal”). Boland does not claim that his in camera Submission contains any client
communications, attorney work product, or other confidential information. To the contrary,
Boland states that the information contained in his Communication is “personal” and has not
been communicated to Ceglia, who at the time of Boland’s motion remained in federal custody.
Accordingly, Boland’s in camera submission appears not to have been “necessary” to safeguard
attorney-client confidences. Rather, its sole purpose appears to be to protect Boland’s reputation
with “the media.” Doc. No. 580 at 2.
Because Boland’s in camera Communication violated the Local Rules and is contrary to
Second Circuit authority, Defendants respectfully submit that the disclosure of that Submission
is appropriate. In order for Defendants to participate fully in the hearing on Boland’s motion,
Defendants ask this Court to order the Communication publicly docketed, or at least disclosed to
Defendants, no later than November 23, 2012.

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Dated:

New York, New York
November 14, 2012
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
Erik R. Zimmerman
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

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