United States of America v. Gorokhovsky et al

Filing 65

ORDER signed by Judge Pamela Pepper on 7/8/2019. 48 Order to show cause DISCHARGED. 57 Response to order to show cause CONSTRUED as motion to withdraw as attorney and GRANTED; Attorney Kyle E. Jesinski's representation of defendant Ocheretne r TERMINATED; Clerk of Court to add defendant Ocheretner's contact information from p. 2 of dkt. no. 57 to docket. 45 Plaintiff's motion for default judgment GRANTED as to Office of Lawyer Regulation and Leonard Kutchera; DENIED without prejudice as to Guthrie & Frey. (cc: all counsel, via mail to Larissa Ocheretner)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 18-cv-590-pp

VLADIMIR M. GOROKHOVSKY, et al.,
Defendants.
______________________________________________________________________________
ORDER CONSTRUING RESPONSE TO ORDER TO SHOW CAUSE AS
MOTION TO WITHDRAW (DKT. NO. 57), GRANTING MOTION TO
WITHDRAW (DKT. NO. 57), GRANTING PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT AS TO OFFICE OF LAWYER REGULATION AND
LEONARD J. KUTCHERA (DKT. NO. 45) AND DENYING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT AS TO GUTHRIE & FREY WATER
CONDITIONING, LLC (DKT. NO. 45)
______________________________________________________________________________
On July 19, 2018, counsel for defendant Larissa Ocheretner filed a
document titled “Stipulation and Consent for Withdrawal of Attorney.” Dkt. No.
25. The motion bore the caption and case number of a Chapter 7 bankruptcy
proceeding; the body of the motion indicated that the defendant stipulated to
the withdrawal. Id. Because it wasn’t clear whether the defendant had agreed
to counsel’s withdrawal in this district court case, Judge Duffin denied the
motion without prejudice. Dkt. No. 26. He explained that if the defendant
wished to move forward without counsel in this case, she could refile the
motion with the appropriate caption. Id. at 2. The defendant did not file a
second motion to withdraw prior to the February 20, 2019 scheduling
conference, and the attorney who had filed the July 2018 stipulation of
withdrawal did not appear at the conference. Dkt. No. 49.
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This court issued an order, requiring that attorney to show cause why
the court should not require him to appear in person and explain why he had
not withdrawn from representing the defendant in the district court case. Dkt.
No. 48. On March 19, 2019, the court received counsel’s response to the order
to show cause. Dkt. No. 57. He explained that in July 2018, he had begun a
new job with the State Public Defender; at that time, he’d represented
defendant Ocheretner both in an adversary proceeding in bankruptcy court
and in this case. Id. at 1. He indicated that after he accepted the job with the
public defender, he’d contacted defendant Ocheretner and told her she’d need
to find a new lawyer in both cases. Id. Counsel had the defendant execute the
stipulation for the bankruptcy proceeding; he says he assumed he’d also
drafted a stipulation for this case, but that he accidentally filed the bankruptcy
stipulation in this case. Id. He says that he had multiple conversations with the
defendant—in person and on the phone—in which he told her that she needed
to find a new lawyer both in the bankruptcy proceeding and in this case. Id. In
fact, he made referrals to the defendant for lawyers in both cases. Id. at 1-2.
After counsel learned about the order to show cause, he contacted defendant
Ocheretner, who indicated that she had talked with the lawyers counsel had
identified for her, but that she had not retained them. Id. at 2. Counsel
concluded by providing the court with defendant Ocheretner’s current contact
information. Id.
The court accepts counsel’s explanation, concludes that he has
discharged the order to show cause, construes his response as a motion to
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withdraw, and will grant that motion. That means that until some other lawyer
files a notice of appearance on behalf of defendant Ocheretner, she is
representing herself. While the court understands that defendant Ocheretner
may not have legal training or understand the legal process, she is nonetheless
responsible for appearing at court hearings and following the court’s rules and
the federal rules.
Meanwhile, the plaintiff has filed a motion for default judgment as to the
Office of Lawyer Regulation, Leonard Kutchera and Guthrie & Frey Water
Conditioning, LLC, asking the court to issue an order finding that none of these
defendants have any rights, claims or interest in “the real property subject of
the United States’ amended complaint in the above-captioned litigation or the
proceeds from any sale of the real property.” Dkt. No. 45. The Office of Lawyer
Regulation executed a waiver of service on May 7, 2018. Dkt. No. 12. The
plaintiff filed a return of service indicating that on June 14, 2018, a process
server left the summons and complaint with office manager Jean Klemmons of
Guthrie & Frey. Dkt. No. 20. Finally, the plaintiff filed a return of service
indicating that the process server served defendant Kutchera personally on
July 3, 2018. Dkt. No. 21. To date, none of the defendants have responded to
the complaint, and none have asserted any right or interest in the properties
listed in the complaint. The clerk of court entered default against the Officer of
Lawyer Regulation on June 27, 2018, against Guthrie & Frey on August 1,
2018 and against Kutchera on August 10, 2018.

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The court will grant the plaintiff’s motion for default judgment as to
defendants OLR and Kutchera.1 But the court cannot determine whether the
plaintiff properly served defendant Guthrie & Frey. The Wisconsin Department
of Financial Institutions’ web site indicates that the registered agent for
Guthrie & Frey is Robert K. Frey, 1125 Richards Road in Hartland, Wisconsin.
https://www.wdfi.org. Guthrie & Frey’s web site says that “Rob Frey” and his
wife Susan Frey run the company. https://www.guthriefreywater.com. The
court has no way of knowing whether service on office manager Jean
Klemmons constitutes service on “an officer, a managing or general agent, or
any other agent authorized by appointment or by law to receive service of
process,” as required by Fed. R. Civ. P. 4(h)(1)(B).
The court FINDS that Attorney Kyle Jesinski has discharged the court’s
order to show cause.
The court CONSTRUES Attorney Jesinski’s response to the order to show
cause as a motion to withdraw from representing defendant Ocheretner. Dkt.
The court notes that the government served the original complaint, filed on
April 16, 2018, on defendants OLR and Kutchera. On February 20, 2019—after
the clerk entered default—the government filed an amended complaint. Dkt.
No. 53. The amended complaint did not change any of the facts alleged in the
original complaint; it was different from the original only in that it sought to
reduce the tax debt against defendant Vladimir Gorokhovsky to a judgment,
something that the government could not have sought prior to the dismissal of
Gorokhovsky’s adversary proceeding contesting the non-dischargeability of the
debt. See Dkt. No. 49 at 1. The court does not know whether the government
has served these two defendants with the amended complaint, and technically
that amended complaint supersedes the original complaint that these
defendants failed to answer. But the fact remains that a year after the
government served them with the original complaint, these two defendants
have not asserted any claim or interest in the properties referenced in the
complaint and the amended complaint.
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No. 57. The court GRANTS Attorney Jesinki’s motion to withdraw from
representation of defendant Ocheretner. Dkt. No. 57.
The court ORDERS the clerk’s office to remove Attorney Jesinski as
counsel of record for defendant Ocheretner, and to add the contact information
for Ocheretner to the docket as provided on page 2 of Attorney Jesinski’s
response to the order to show cause. Id.
The GRANTS the plaintiff’s motion for default judgment as to the Office
of Lawyer Regulation and Leonard J. Kutchera. Dkt. No. 45. The court
ORDERS that defendants Office of Lawyer Regulation and Leonard Kutchera
have no rights, claims, or interests in the real properties identified in the
original and the amended complaints, specifically 10919 N. Hedgewood Lane,
Mequon, Wisconsin, and 4275 W. Cherrywood Lane, Brown Deer, Wisconsin,
or the proceeds from any sale of those properties.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion for
default judgment as to defendant Guthrie & Frey.
BY THE COURT:

_____________________________________
HON. PAMELA PEPPER
United States District Judge

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