Raintree Healthcare of Forsyth, LLC v. AA Holdings-Winston-Salem, LLC

Filing 14

ORDER taking under advisement 12 Motion for Reconsideration. Evidentiary Hearing is set for Wednesday, March 28, 2018 at 11:00am. Counsel for appellant shall assure compliance with the instructions contained in this Order concerning appearance of witnesses and production of materials at the hearing. Signed by District Judge Max O. Cogburn, Jr on 3/15/2018. (chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00654-MOC
RAINTREE HEALTHCARE OF FORSYTH,
LLC DOING BUSINESS ASINTEGRITY
ASSISTED LIVING,
Appellant,
Vs.

AA HOLDINGS-WINSTON-SALEM, LLC,

Appellee.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER TAKING MOTION
UNDER ADVISEMENT AND
SETTING EVIDENTIARY
HEARING

THIS MATTER is before the Court on appellant’s “Motion to Reconsider Dismissal of
Appellant’s Appeal Pursuant to Rule 60 of Federal Rules of Civil Procedure.” (#12). Appellee has
filed a Response (#13) and the time for filing a Reply has expired. For the reasons that follows,
the Court will schedule an evidentiary hearing.
FINDINGS AND CONCLUSIONS
In concluding that a hearing is necessary, the Court has given close consideration to the
affidavit of Ms. Reema Owens, which was submitted by appellant in support of its Motion to
Reconsider. There are a number of irregularities with her affidavit. First, it is atypical in this
Court’s experience for the alleged representative of the corporate client to be tasked with ordering
a transcript from the Official Court Transcriber. Second, there is no explanation as to why Ms.
Owens had to act as a conduit between the attorney lodging the appeal, Mr. Snyder, and another

-1-

attorney, Mr. Lewis, who is not of record in this appeal. Third, there is no explanation as to why
Mr. Snyder did not expect to be the recipient of the transcript and why he believed Ms. Owens or
Mr. Lewis may have received it. Fourth, there is no documentation to support the averment that
Mr. Lewis cancelled the transcript order in this matter on or before January 5, 2018. Certainly,
there would be correspondence and some sort of engagement agreement with the Official Court
Transcriber documenting the original order and the termination. Indeed, there is no “Transcript
Request” from an Official Court Transcriber in the bankruptcy docket between November 9, 2017,
and January 5, 2018, and it is this Court’s understanding that such is routinely done when a
transcriber is engaged. Further, the affidavit does not even name the transcriber engaged.
Generally, Ms. Owens avers that all communications were by phone or text, but no
documentation of those communications has been provided.

Further, no documentation is

provided that backs up the assertion that a transcript was mistakenly ordered from the Middle
District by Mr. Lewis at Ms. Owens instruction. While there are assertions concerning the
communications between Mr. Snyder, Ms. Owens, and Mr. Lewis, there is no averment in the
affidavit or assertion in the motion that anyone ever checked the publicly available bankruptcy
docket to see if a transcript had been ordered from an Official Court Transcriber.
Putting aside those matters, the Court’s main concern is not with the Mr. Snyder’s first
incorrect representation that the transcript “had not been received” when in fact it had not been
ordered. See Order (#7) dated January 8, 2018. Rather, the Court’s concern is with a statement
made two days after that Order when Mr. Snyder represented in the “Proposed Record on Appeal”
(#8-1) filed January 10, 2018, that the “transcript [was] ordered but not delivered in written form
at the time of this filing.” Id. at ¶ 3. That representation was also flatly incorrect as no transcript

-2-

had been ordered and no explanation has been offered in appellant’s motion or Ms. Owens’
affidavit as to good faith basis for that representation. Even if the Court were to fully credit Ms.
Owens averments, the affidavit indicates that counsel’s first post-January 8 inquiry to her was on
February 7, 2018, the date this Court dismissed the appeal. Had the electronic bankruptcy docket
been reviewed between January 8th when the Order was entered and 10th when the Proposed
Record on Appeal was filed, it would have revealed that no transcript had been ordered.
Ultimately, it appears that the transcript was not ordered until February 7, 2018, the same
day this Court dismissed the appeal and the same day Mr. Snyder made inquiry of Ms. Owens.
See Bankr. No. 17-31083 (W.D.N.C. Bankr. Ct.) “Request for Transcript for hearing on DATE:
9/19/2017 by Randel Raison. (cch) (Entered: 02/07/2018)” (Br. #124); Owens Aff. (#12-1) at ¶ 6.
That request came almost a month after the Court advised appellant of the incorrect assertion and
approximately 90 days after the appeal was filed.
As the supporting affidavit has raised more questions than it has answers, the Court is not
in the position to give appellant’s Motion for Reconsideration the full consideration it deserves
without an evidentiary hearing. The Court has, therefore, taken the motion under advisement and
will set the matter for hearing.
Counsel for appellant, his affiant Ms. Owens, and Attorney Robert Lewis are required to
appear at such evidentiary hearing and each be prepared to testify concerning their efforts in
ordering a transcript in this matter. Counsel for appellee shall also be present and may subpoena
any witness or submit any evidence appellee believes can shed some light on what has transpired.
Further, Counsel for appellant shall bring to the hearing copies of all email, texts, toll records, ESI,
letters, agreements, and contracts between his office (or anyone acting under his direction) that

-3-

bear on the issues herein discussed. Of particular interest to the Court is the documentation
supporting each order and each terminated transcript order.
Finally, appellant shall subpoena and pay the expenses of the Official Court Transcriber(s)
involved in such each order, misorder, or cancellation for appearance at the evidentiary hearing or
appellant shall secure and present at the hearing their affidavits detailing the contacts made in
regards to this matter.
***
In Court has read the attachments to appellee’s Response (#13) and is aware that appellant
was itself in bankruptcy in the Bankruptcy Court for the Middle District; that Mr. Lewis is counsel
for the debtor there; and that such action was dismissed by the bankruptcy court. In pursuing
reconsideration, there is little comfort to be found for appellant in the Middle District’s February
7, 2018, Order of Dismissal, as Judge Kahn noted serious concerns with the conduct of counsel
therein which bears striking similarities with actions in this appeal. See Appellee’s Ex. B (# 13-2).
Appellant and its counsel are advised that it is not too late to discuss resolution of these matters
with appellee’s counsel.

ORDER
IT IS, THEREFORE, ORDERED that appellant’s “Motion to Reconsider Dismissal of
Appellant’s Appeal Pursuant to Rule 60 of Federal Rules of Civil Procedure” (#12) is TAKEN
UNDER ADVISEMENT, and the Clerk of Court is instructed to Notice an Evidentiary Hearing
in this matter for Wednesday, March 28, 2018, at 11 a.m. in the United States Courthouse in
Charlotte, North Carolina. Counsel for appellant shall assure compliance with the instructions

-4-

contained in this Order concerning appearance of witnesses and production of materials at the
hearing.

Signed: March 15, 2018

-5-