United States of America v. Wise, et al

Filing 56

ORDER denying 55 MOTION for Leave to Appear Telephonically or Video Conference by Special Appearance of Counsel for Defendants - Signed by District Judge Louise Wood Flanagan on 8/26/2015. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:14-CV-844-FL

UNITED STATES OF AMERICA,
Plaintiff,
v.
DOROTHY M. WISE AND EDDIE F.
WISE,
Defendants.
____________________________
DOROTHY M. WISE and EDDIE F.
WISE,
Counter Claimants,
v.
TOM VILSACK, in his official capacity
as Secretary for the United States
Department of Agriculture; MIKE
HUSKEY, individually and in his
official capacity; PAULA F.
NICHOLLS, individually and in her
official capacity; JUAN GARCIA,
individually and in his official capacity;
DEBBIE HOUSTON, individually and
in her official capacity; CYNTHIA
KERNODDLE, individually and in her
official capacity; and AARON
MARTIN, individually and in his
official capacity.
Counter Defendants.

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ORDER

In this action for money judgment and foreclosure, initiated by complaint filed November
19, 2014, on the heels of one defendants brought in 2013, seeking to enjoin foreclosure,1 there are
a plethora of motions now pending on which hearing was set August 19, 2015, to occur September
14, 2015.2
BACKGROUND
Ceaselessly, defendants have sought to delay progress of this case. Defendants filed a motion
to stay December 9, 2014, (DE 7), which plaintiff characterized as “part of a pattern of Defendants
using litigation to delay foreclosure and the collection of their defaulted 1996-99 farm loans, for
which they have voluntarily repaid approximately $9,000 over the last 15 years and currently owe
approximately $590,000. Resp. p. 1 (DE 8). The court’s denial of that motion was followed by
defendants’ request for reconsideration, (DE 10), which was denied, and a separate motion to stay
(DE 19). More time, too, was sought to respond to plaintiff’s motion for summary judgment (DE
25). The latter two motions were referred to the magistrate judge for hearing while the court stayed
the case of its own initiative. The court notes defendants failed to attend that hearing.
The magistrate judge denied the motion to stay and motion for extension of time, setting a
deadline for any response by defendants to the government’s motion. This promptly was followed

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That case, Eddie Wise and Dorothy Monroe-Wise v. United States Department of Agriculture, James
Davenport, Mike Huskey, Aaron Martin, Juan M. Garcia, Tom Vilsack, Pala F. Nicholls, Debbie Houston, Cynthia I.
Kernoddle, and Joe Leonard, 4:13-cv-234 (EDNC), assigned to another judge, also was maintained pro se. The court
dismissed the action by order entered October 24, 2014, noting among other things “Plaintiffs’ litigation theme before
this Court has been to delay by any means possible.” (DE 42, p. 7).
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Motions for hearing include: 1) plaintiff’s motion to dismiss counterclaim for failure to state a claim or in the
alternative, for summary judgment on counterclaim; 2) plaintiff’s motion for summary judgment on foreclosure and sale;
3) defendants’ asserted response to complaint or in the alternative, motion for summary judgment; 4) defendants’ motion
to dismiss or in the alternative, motion for summary judgment sounding as response to plaintiff’s motion; and 4) most
recently, defendants’ motion to transfer venue.

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by defendants’ motion to reset another hearing time and to allow limited discovery (DE 29).
Reference is made to the court’s order entered April 21, 2015, for its address of same:
While it is difficult to believe that defendants did not receive notice of hearing, where
no mail was returned to the clerk’s office, the defendants’ correct address was used,
and these defendants have a history of employing delaying tactics, the court
AMENDS the magistrate’s order, (DE 28), and positions the case [on a schedule
promoting address of plaintiffs’ motion to dismiss, provision of answer, and a
discovery proposal].

Apr. 21, 2015 order (DE 30). Defendants’ response to complaint that followed included another
motion to stay. (DE 32). That request was denied in June 29, 2015, text order wherein the court
also denied for reasons given proposed discovery by defendants and lifted stay.
On August 21, 2015, defendants filed motion deemed an emergency one, seeking the court
to reschedule hearing to permit a lengthier period of time to prepare, in light of stated desire to
conduct discovery, subpoena a witness, and hire an attorney. This motion summarily was denied.
Four days later, defendants filed the instant motion, which references persistent medical conditions
not previously mentioned, as basis now for delay. In the alternative, defendants seek the court to
permit an unidentified lawyer from Texas to appear via telephone or be video conference, because
of stated short notice.
COURT’S DISCUSSION
Defendants are experienced litigators. They also have had abundant time to secure counsel
compliant also with this court’s Local Civil Rules sought here to be skirted. At time the instant
motion was filed hearing was nearly three weeks’ away, providing ample time for local counsel to
be secured and travel arrangement made by Texas based counsel.

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Opportunities earlier were promoted for the court’s consideration of any necessary discovery,
met by defendants’ failure to attend hearing and then by their outsized proposal, (DE 33), despite its
characterization as a motion for limited discovery, for conduct of voluminous discovery about
matters not at issue and/or matters not compliant with this court’s orders and the Federal Rules of
Civil Procedure.
While not diminishing any health issues, defendants’ stance in litigation mitigates against
allowance of what sounds as yet one more effort to delay disposition of the case.
CONCLUSION
Motion seeking delay of hearing and permission for an unnamed Texas-based attorney to
make special appearance and represent defendants’ interests via telephone or by video-conference
(DE 55) is DENIED.
SO ORDERED, this the 26th day of August, 2015.

LOUISE W. FLANAGAN
United States District Court Judge

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