United States of America v. Bogart et al

Filing 70

ORDER: Telephone conference held on 11/28/2012. As an initial matter it appears that certified mail send to Mr. and Mrs. Bogart is being returned as undeliverable. However, they advised that they are receiving regular mail. The Clerk will send Mr. an d Mrs. Bogart and Mr. Jerry Speer further orders and other notices in this case by regular mail and email only. Mr. Speer, the Trustee, was allowed to remain on the telephone conference call and the Clerk should send a copy of this order to Mr. Jerry Speer, 5290 Highway 147, Steward, TN 37175. At this point the Clerk will enter Mr. Speer as only an interested party. The Magistrate Judge is of the firm opinion that Mr. Speer may not file any formal pleadings on behalf of Southern Country Ranch. F ailure to obtain counsel could result in a default against the trust. The Government should respond to the pending motion to dismiss 66 within the time provided in the Local Rules. The Bogarts requested a copy of the recording of this telephone con ference and the Magistrate Judge will provide with this order a audio CD of the telephone conference and the Clerk is directed to send a copy to Mr. Speer, counsel for the Government, and to Mr. Bogart. Signed by Magistrate Judge Joe Brown on 11/29/12. (xc:Pro se party and Mr. Speer by regular mail only.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)

Plaintiff
v.
DUSTIN B. BOGART, et al.,
Defendants

No. 3:12-0179
Judge Sharp/Brown

O R D E R
A lengthy telephone conference was held with the parties
in this matter on November 28, 2012.

As an initial matter it

appears that certified mail send to Mr. and Mrs. Bogart is being
returned as undeliverable.
receiving regular mail.

However, they advised that they are

The Clerk will send Mr. and Mrs. Bogart

and Mr. Jerry Speer further orders and other notices in this case
by regular mail and email only.
Mr. Jerry Speer, who is the trustee for Southern Country
Ranch, participated in the telephone conference.

Mr. Speer has

received the complaint in this case and the Government advised that
they would file proof of service on Southern Country Ranch within
the next few days.
The Magistrate Judge advised Mr. Speer that, in his
opinion, the Southern Country Ranch was not a living, breathing
entity, and as such could not be represented by anyone who was not
an attorney.

See, Bank of New York v. Miller, 923 M.E.2d 651 (Ohio

2009), which held that a trustee in a foreclosure action was

engaging in the unauthorized practice of law by filing responsive
pleadings and briefs on behalf of the trust.

Tubalcain Trust v.

Cornerstone Construction, Inc., 1994 WL 232228 Ohio App. 10 Dist.
May 26, 1994, which upheld the dismissal of a trust complaint
because the trust was required to obtain counsel to represent it.
One of the trustees could not represent the trust. The Sixth
Circuit has held that a Plaintiff cannot represent their minor
child as a pro se party, and

can only represent themselves.

Shepherd v. Wellman, 313 F.3d 963 (6th Cir. 2002); see also, Terrell
Demolition v. City of Cincinnati, 786 F.2d 1166 (6th Cir. 1986).
Mr. Speer, the Trustee, was allowed to remain on the
telephone conference call and the Clerk should send a copy of this
order to Mr. Jerry Speer, 5290 Highway 147, Steward, TN 37175.

At

this point the Clerk will enter Mr. Speer as only an interested
party,

telephone

aol.com.

number

931-721-2775,

email:

ParadiseRanchTN@

Even though the Magistrate Judge allowed Mr. Speer to

participate in the telephone call and he will be listed as an
interested party, the Magistrate Judge is of the firm opinion that
Mr. Speer may not file any formal pleadings on behalf of Southern
Country Ranch. Failure to obtain counsel could result in a default
against the trust.
The Government should respond to the pending motion to
dismiss (Docket Entry 66) within the time provided in the Local
Rules.
2

The Magistrate Judge did discuss with the parties his
concern that this motion appeared to be simply a rehash of the
previous motion to dismiss (Docket Entry 35), which has been ruled
on by Judge Sharp.

While it is true that the Court’s jurisdiction

can be questioned at any point, this does not mean that a decision
of the District Court may be relitigated in the District Court,
absent new grounds or facts.
The Magistrate Judge briefly discussed with the parties
the possibility of a settlement in the matter.

The Defendants

should be aware that given the structure of the tax division,
responses to questions may easily take up to 30 days.

It is also

the Magistrate Judge’s experience that in dealing with the tax
division, in a request for a settlement involving less than full
payment, the tax division will insist on receiving complete answers
to their requests for financial disclosure.
While the Magistrate Judge is certainly willing to allow
some time in the scheduling order for the parties to try to resolve
the matter, absent some indication that a settlement is likely, the
Magistrate Judge is unwilling to delay the scheduling order in this
case at the present time.
The Bogarts requested a copy of the recording of this
telephone conference and the Magistrate Judge will provide with
this order a audio CD of the telephone conference and the Clerk is
directed to send a copy to Mr. Speer, counsel for the Government,
and to Mr. Bogart.
3

Discovery

is

not

stayed

in

this

case

pending

the

resolution of the motion to dismiss.
It is so ORDERED.

/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

4