JHB Investments et al v. Washington County et al

Filing 24

ORDER signed by Judge Pamela Pepper on 4/3/2018. 22 Unopposed MOTION for attorney withdrawal GRANTED. Attorney Aaron A. DeKosky and Padway & Padway's representation of plaintiffs WITHDRAWN. Status Conference set for 4/24/2018 at 11:00 AM befor e Judge Pamela Pepper. Parties may appear in person or by phone; any party wishing to appear by phone may do so by calling the court's conference line at 888-557-8511 and using access code 4893665#. Mr. Bagley must appear at the hearing; JHB Investments must be represented by a lawyer. If plaintiffs do not appear, case will be dismissed for lack of prosecution under Civil L.R. 41 (E.D. Wis.). (cc: all counsel, via email to John Bagley)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JHB INVESTMENTS LLC and
JOHN H. BAGLEY,

Case No. 17-cv-27-pp

Plaintiffs,
v.
CITY OF WEST BEND,
GWENN SOLDNER
TJ JUSTICE, and
KURTIS McMAHON,
Defendants.
______________________________________________________________________________
ORDER GRANTING UNOPPOSED MOTION TO WITHDRAW BY ATTORNEY
AARON DEKOSKY/PADWAY & PADWAY, LTD. (DKT. NO. 22) AND
REQUIRING PLAINTIFFS TO APPEAR BY COUNSEL AT HEARING ON APRIL
24, 2018 AT11:00 A.M. OR FACE DISMISSAL FOR FAILURE TO
PROSECUTE
______________________________________________________________________________
On January 5, 2017, the defendants removed this case from Washington
County Circuit Court to the federal court for the Eastern District of Wisconsin.
Dkt. No. 1. The plaintiffs did not move for remand.
On February 17, 2017, the court received a letter from Attorney Aaron
DeKosky of Padway & Padway, Ltd., indicating that the plaintiffs had hired him
to represent them. Dkt. No. 10.
After Attorney DeKosky came on board, the parties stipulated to the
dismissal of some of the defendants, the plaintiffs filed an amended complaint,
and the four above-named defendants answered that complaint. The court
conducted the Rule 16 scheduling conference on October 5, 2017, and issued
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an order setting a deadline of April 30, 2018 for the close of discovery and a
dispositive motions deadline of May 16, 2018. Dkt. No. 21.
On December 29, 2017—days before the deadline the court had set for
the plaintiffs to disclose the identities of their expert witnesses—Attorney
DeKosky filed an unopposed motion to withdraw from representing the
plaintiffs. Dkt. No. 22. The motion stated nothing further than that counsel
had good cause for withdrawing, and that the plaintiffs did not object. Id.
Despite the fact that the plaintiffs had no objection to the motion, the
court had concerns. Plaintiff JHB Investments, LLC is a limited liability
corporation. Under Wisconsin law, a corporate entity, such as an LLC, must be
represented by a lawyer in any court proceedings. Individual defendant John
Bagley has the right to represent himself, if he chooses to do so, but he cannot,
by law, represent JHB Investments, LLC. The court wanted to make sure
plaintiff Bagley understood this before granting Attorney DeKosky’s motion to
withdraw. So the court scheduled a hearing for February 5, 2018, and ordered
that plaintiff John Bagley be present in person at the hearing. The court issued
the notice for that hearing on January 23, 2018—almost two weeks before the
scheduled hearing date.
At the appointed date and time, Attorney DeKoskey appeared, as did
Attorney Martell (representing the defendants). Dkt. No. 23. Contrary to the
court’s order, however, plaintiff John Bagley did not appear, nor did he contact
the court to say that he could not come, or that he would be late. Attorney
DeKosky indicated, without going into much detail, that he had had difficulty
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communicating with plaintiff Bagley. He did say that he had talked with
plaintiff Bagley in the recent past, and had told him about the hearing. Defense
counsel informed the court that he had complied with his discovery obligations,
and that he hoped that the case could continue moving forward. The court
stated that it would reach out to plaintiff Bagley, and then would schedule
another hearing once it had talked with Bagley about timing.
The court since has attempted to reach plaintiff Bagley, to schedule a
hearing for a date he might be able to attend. First, the court’s staff emailed
Bagley. He did not respond. Next, the court’s staff called Bagley, who indicated
that he had gotten the email, and that he had forwarded it to someone. When
asked about dates for a hearing, plaintiff Bagley indicated that he was not in
his office, and asked the court’s staff to call him back later that afternoon.
When staff called later that afternoon, Bagley said he was in his car and could
not discuss dates. He asked staff to call him at 9:00 the next morning. Staff did
so, and the phone went to voice-mail; staff left a message asking Bagley to call
back to discuss the hearing dates. Mr. Bagley did not call back.
Given that the court is having difficulty communicating with Bagley, just
as his counsel has had difficulty, the court will grant counsel’s motion to
withdraw. Counsel should not be required to remain on a case where the client
is not cooperative.
John Bagley and JHB Investments brought this case. If they wish to
pursue it, they must follow the court’s rules, and must follow the law. The
court has scheduled a hearing for April 24, 2018 at 11:00 a.m. in Room 208 of
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the federal courthouse at 517 East Wisconsin Avenue in Milwaukee. The
plaintiffs must appear at that hearing if they wish to pursue this case further.
Plaintiff John Bagley may represent himself, if he chooses to do so, but he
must appear at the hearing regardless. JHB Investments must appear at the
hearing represented by a lawyer. John Bagley may not appear for JHB
Investments on April 24.
Any party wishing to appear by telephone at the April 24 hearing may do
so by calling the court’s conference line at 1-888-557-8511 and dialing access
code 4893665#.
The court GRANTS the motion of Attorney Aaron DeKosky/Padway &
Padway, Inc. to withdraw from representing the plaintiffs. Dkt. No. 22. The
court ORDERS that all parties shall appear at the hearing scheduled for April
24, 2018 at 11:00 a.m.; while John Bagley may appear on his own behalf, the
court ORDERS that JHB Investments, LLC must appear by counsel.
If the plaintiffs do not appear, either by phone or in person, at the
April 24, 2018 hearing, the court will dismiss this case for lack of
prosecution under Civil L.R. 41 (E.D. Wis.).
Dated in Milwaukee, Wisconsin this 3rd day of April, 2018.
BY THE COURT:
__________________________________
HON. PAMELA PEPPER
United States District Judge

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