Selective Advisors Group, LLC et al v. Continental Casualty Company et al
| Selective Advisors Group, LLC |
| Continental Casualty Company and NLG, LLC |
| 1:2015cv20179 |
| January 16, 2015 |
| US District Court for the Southern District of Florida |
| Miami Office |
| Miami-Dade |
| Chris M McAliley |
| Chris M McAliley |
| K Michael Moore |
| Contract: Recovery/Enforcement |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| None |
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| Civil Case Terminated. Closing Case. (apy) |
| Filing 31 CERTIFICATE OF SERVICE by Selective Advisors Group, LLC re 30 Order on Motion to Withdraw as Attorney,,,,,,,,,,, (Cohen, Mark) |
Filing 30
PAPERLESS ORDER. THIS CAUSE came before the Court upon Mark D. Cohen's Motion to Withdraw as Counsel for Selective Advisors Group, LLC #29 . Mr. Cohen states that when he commenced this garnishment proceeding in Florida state court on behalf of Selective Advisors Group, LLC he could not have reasonably foreseen (prior to removal and a change of venue) that its ultimate destination would be a Pennsylvania bankruptcy court and states that if he had known that the matter would be litigated in that forum, he would have declined representation. Mr. Cohen further states that he lacks the resources to litigate this matter in Pennsylvania and further lacks the requisite knowledge of Pennsylvania law. Accordingly, he has recommended to his client that it procure Pennsylvania bankruptcy counsel and seeks permission from this court to withdraw as counsel. Mr. Cohen represents that Selective Advisors Group, LLC does not object to the granting of this Motion. UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED that Mark D. Cohen's Motion is GRANTED. Mark D. Cohen is permitted to withdraw as counsel for Selective Advisors Group, LLC. Selective Advisors Group, LLC is on notice that federal law requires that a corporation cannot appear in federal court pro se and must be represented by counsel. See 28 U.S.C. 1654; Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385-86 (11th Cir. 1985); Nat'l Indep. Theater Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 609 (11th Cir. 1985); Rowland v. California Men's Colony, Unit II Mens Advisory Council, 506 U.S. 194, 201-02 (1993) (It has been the law for the better part of two centuries... that a corporation may appear in the federal courts only through licensed counsel.). Selective Advisors Group, LLC failure to retain counsel of record may result in Selective Advisors Group, LLC being defaulted in this case. See Compania Interamericana Export-Import, S.A., v. Compania Dominicana de Aviacion, 88 F.3d 948, 951-52 (11th Cir.1996) (upholding a district courts decision to default a corporation for failure to obtain counsel); Kaplun v. Lipton, No. 0620327CIV, 2007 WL 707383, *3 (S.D. Fla. Mar. 5, 2007) (entering default judgment against a corporate defendant for failure to obtain counsel per court order); Ti v. Wallys Waterfront, Inc., No. 2:05cv551FtM29SPC, 2007 WL 678013, *2 (M.D. Fla. Mar. 5, 2007) (finding entry of default judgment appropriate after corporate defendant failed to obtain counsel as directed by court). Counsel is directed to forward a hardcopy of this Order by certified mail to Selective Advisors Group, LLC. Selective Advisors Group, LLC's deadline to obtain new counsel is 5/8/2015. Deadline to obtain new counsel 5/8/2015. Signed by Chief Judge K. Michael Moore on 4/23/2015. (apy)
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| Filing 29 MOTION to Withdraw as Attorney by Mark D. Cohen. by Selective Advisors Group, LLC. Responses due by 4/27/2015 (Cohen, Mark) |
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Filing 28
PAPERLESS ORDER. THIS CAUSE came before the Court upon Interested Party Christopher Kosachuk's Motion to Take Judicial Notice #27 . The Court first notes that Mr. Kosachuk is not a party to this case, and therefore, lacks standing to file a Motion. Second, this case has been transferred to the Eastern District of Pennsylvania and is no longer before this Court. See Paperless Order 26 . Third, Section 90.202 of the Florida Statutes, upon which Mr. Kosachuk relies, is a provision of Florida law rather than federal law. Accordingly, UPON CONSIDERATION of the Motion, pertinent portions of the record, and otherwise being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion #27 is DENIED. Signed by Chief Judge K. Michael Moore on 4/7/2015. (apy)
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| Filing 27 MOTION Take Judicial Notice by Interested Party Christopher Kosachuk. (ots) (Additional attachment(s) added on 4/3/2015: #1 Appendix) (ots). |
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Filing 26
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Motion to Change Venue #22 . Plaintiff filed a Response #24 and Defendant filed a Reply #25 . The Motion is now ripe for review. Defendant asserts that venue should be changed because the Bankruptcy court has original jurisdiction over the matters at issue here, and because a change in venue would promote judicial economy, prevent duplicative litigation, and avoid the possibility of inconsistent and incompatible decisions." Mot., at 2. Plaintiff maintains that the Motion is motivated by Defendant's "desire to shield the Term Sheet from disclosure," which reflects an obligation of Defendant's that is subject to Plaintiff's writ of garnishment. Pl.'s Resp., at 4. Accordingly, Plaintiff asserts the Motion should be denied. "A district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties." 28 U.S.C. 1412. "Courts within the Eleventh Circuit consider 28 U.S.C. 1412 to be the appropriate authority under which a federal court may transfer a proceeding related to a bankruptcy proceeding to the district in which the bankruptcy court sits." Chex Sys., Inc. v. DP Bureau, LLC, No. 8:10-cv-2465-T-33MAP, 2011 WL 5459683, at *2 n.1 (M.D. Fla. Nov. 10, 2011) (citations omitted). The determination whether to transfer venue under 28 U.S.C. 1412 requires the same analysis as under 28 U.S.C. 1404(a). Id. "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought...." 28 U.S.C. 1404(a). The purpose of section 1404(a) is to "avoid unnecessary inconvenience to the litigants, witnesses, and the public, and to conserve time, energy, and money." Cellularvision Tech. & Telecomms., L.P. v. Alltel Corp., 508 F. Supp. 2d 1186, 1189 (S.D. Fla. 2007) (citations omitted). Courts have broad discretion "to adjudicate motions for transfer according to an 'individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). Once a court finds an action could have been brought in the transferee forum, the court "must weigh various factors... to determine if a transfer to a more convenient forum is justified." Windmere Corp. v. Remington Prods., Inc., 617 F. Supp. 8, 10 (S.D. Fla. 1985). In assessing a motion to transfer under either 28 U.S.C. 1404(a) or 28 U.S.C. 1412, "the public and private factors to be considered include: (1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forums familiarity with the governing law; (8) the weight accorded a plaintiffs choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances." Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005). It is the movants burden to establish transfer is warranted. See Cent. Money Mortg. Co. [IMC], Inc. v. Holman, 122 F. Supp. 2d 1345, 1346 (M.D. Fla. 2000). This burden is high: a plaintiffs choice of forum "should not be disturbed unless it is clearly outweighed by other considerations." Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996). Nevertheless, "where the operative facts underlying the cause of action did not occur within the forum chosen by the Plaintiff, the choice of forum is entitled to less consideration." Windmere Corp., 617 F. Supp. at 10. Here, the Court finds that Defendant has met its burden in establishing that transfer is warranted. First, the Court finds that this action could have been brought in the Bankruptcy Court. The Bankruptcy Court has jurisdiction pursuant to 28 U.S.C. 1334, as this action is a civil proceeding arising in or related to cases under title 11. See 28 U.S.C. 1334(c)(1). Further, the public and private factors weigh in favor of transfer. The locus of the operative facts underlying this garnishment proceeding lies in the Eastern District of Pennsylvania. The heart of this dispute concerns the proper disposition of funds that are the subject of the Term Sheet, a document that was negotiated in Pennsylvania to resolve the underlying matters, which are pending in Pennsylvania. The majority of the relevant witnesses and the relevant documents and evidence are located in Pennsylvania. Additionally, the Bankruptcy Court has a significant and substantial interest in determining the relevant issues in this garnishment proceeding, which will impact the resolution of the federal sanctions proceeding. The interests of judicial economy therefore also favor transfer of this garnishment proceeding to the Bankruptcy Court. The garnishment proceeding before this Court is connected to matters and funds at issue in a federal sanctions proceeding that is pending before the Bankruptcy Court as a core proceeding. The funds that Plaintiff seeks to garnish have now been interpleaded into the registry of the Bankruptcy Court. Thus, this garnishment proceeding substantially overlaps and affects the very same issues in dispute in the federal sanctions proceeding. Accordingly, considering the totality of the circumstances, the Court finds the private and public factors weigh in favor of transfer. UPON CONSIDERATION of the Motion, Response, Reply, pertinent portions of the record, and otherwise being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion to Change Venue #22 is GRANTED. The Clerk of Court is instructed to TRANSFER this action to the United States Bankruptcy Court for the Eastern District of Pennsylvania. Signed by Chief Judge K. Michael Moore on 4/2/2015. (apy)
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| Filing 25 REPLY to Response to Motion re #22 MOTION to Change Venue filed by Continental Casualty Company. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6)(Lemley, Charles) |
| Filing 24 RESPONSE in Opposition re #22 MOTION to Change Venue filed by Selective Advisors Group, LLC. Replies due by 4/6/2015. (Cohen, Mark) |
| Filing 23 CERTIFICATE OF SERVICE by Selective Advisors Group, LLC re 20 Order on Motion to Reopen Case,,,,,,, (Cohen, Mark) |
| Filing 22 MOTION to Change Venue by Continental Casualty Company. Responses due by 4/2/2015 (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Lemley, Charles) |
| Filing 21 SCHEDULING REPORT - Rule 26(f) by Selective Advisors Group, LLC (Cohen, Mark) |
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Filing 20
PAPERLESS ORDER. THIS CAUSE is before the Court upon Plaintiff's Amended Motion to Reopen Case #18 . On February 26, 2015, this Court entered a Paperless Order 16 dismissing the instant matter because the Parties failed to file a joint scheduling report. The Parties have now complied with this Court's Order 16 by filing a Joint Scheduling Report, see exhibit C to Amended Motion #18 . UPON CONSIDERATION of the Motion, Joint Scheduling Report, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Clerk shall REOPEN this case. All previously issued orders in this action remain in effect except those inconsistent with this Order. The Parties shall move this Court to reopen any previously filed Motions that were mooted when this case was closed. The Parties are also DIRECTED to file the Joint Scheduling Report as its own entry on the docket. Signed by Chief Judge K. Michael Moore on 3/13/2015. (apy)
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| Filing 19 NOTICE by Selective Advisors Group, LLC re #18 Amended MOTION to Reopen Case Notice of Filing (Cohen, Mark) |
| Filing 18 Amended MOTION to Reopen Case by Selective Advisors Group, LLC. (Cohen, Mark) |
| Filing 17 MOTION to Reopen Case by Selective Advisors Group, LLC. (Cohen, Mark) |
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Filing 16
PAPERLESS ORDER. THIS CAUSE came before the Court upon a sua sponte examination of the record. On January 21, 2015, this Court entered a Pretrial Order 3 requiring the Parties to file a joint scheduling report within ten (10) days of their joint scheduling conference, which was to be held within twenty (20) days of the date of that Order. The Order cautioned, "[f]ailure of counsel to file a joint scheduling report within the deadlines set forth above may result in dismissal, default, and the imposition of other sanctions including attorneys fees and costs." The deadline for filing a joint scheduling report has passed and no extension of time has been requested. Accordingly, based on the foregoing, it is ORDERED AND ADJUDGED that this action is DISMISSED WITHOUT PREJUDICE. The Clerk of the Court is instructed to CLOSE this case. The Parties may move to reopen this matter upon filing a joint scheduling report. Signed by Chief Judge K. Michael Moore on 2/26/2015. (apy)
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Filing 15
ORDER denying #8 Motion to Shorten Time. Signed by Magistrate Judge Chris M. McAliley on 2/20/2015. (nsy)
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| Filing 14 Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Telephonic Status Conference held on 2/20/2015. Mark Cohen for Plaintiff. Charles Lemley for Garnishee. Order to follow. (Digital 11:30:35.) (wc) |
| Filing 13 RESPONSE/REPLY to #11 Response in Opposition to Motion by Selective Advisors Group, LLC. (Cohen, Mark) |
| Filing 12 PAPERLESS NOTICE OF TELEPHONIC STATUS CONFERENCE. Please take notice that the Court will hold a telephonic status conference on February 20, 2015 at 11:30 A.M. on Plaintiffs Motion to Shorten Time in Which Garnishee Continental Casualty Company Has to Respond to Plaintiffs Request for Production [DE 8]. Counsel should use the following dial in information: Telephone number: 1-888-684-8852; Access code: 9675400; Security Code: 5890. Signed by Magistrate Judge Chris M. McAliley on 2/18/2015. (nsy) |
| Filing 11 RESPONSE in Opposition re #8 MOTION To Shorten Time To Respond To Request For Production filed by Continental Casualty Company. Replies due by 2/27/2015. (Attachments: #1 Exhibit A)(Lemley, Charles) |
| Filing 10 CERTIFICATE OF SERVICE by Selective Advisors Group, LLC re 9 Endorsed Order, Set/Reset Deadlines,, (Cohen, Mark) |
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Filing 9
PAPERLESS ORDER SETTING RESPONSE DEADLINE. Pending before the Court is Plaintiff's Motion to Shorten Time for Garnishee to Respond to Request for Production. [DE 8]. Garnishee Continental Casualty Company is ORDERED to file a response to the Motion, not exceeding three pages, no later than February 17, 2015. Signed by Magistrate Judge Chris M. McAliley on 2/11/2015. (nsy)
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| Filing 8 MOTION To Shorten Time To Respond To Request For Production by Selective Advisors Group, LLC. (Cohen, Mark) |
| Filing 7 RESPONSE/REPLY to #6 ANSWER to Complaint (Notice of Removal) by Selective Advisors Group, LLC. (Cohen, Mark) |
| Filing 6 Garnishee's ANSWER to Complaint re the Notice of Removal / Writ of Garnishment by Continental Casualty Company. (Lemley, Charles) |
| Filing 5 CERTIFICATE OF SERVICE by Continental Casualty Company re 3 Pretrial Order,,,,,,,,,,,,, 4 Order Referring Case to Judge,,, (Lemley, Charles) |
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Filing 4
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE CHRIS M. MCALILEY. PURSUANT to 28 U.S.C. 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, the above captioned Cause is referred to United States Magistrate Judge Chris M. McAliley to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. Any motion affecting deadlines set by the Court's Scheduling Order is excluded from this referral, unless specifically referred by separate Order. It is FURTHER ORDERED that the parties shall comply with Magistrate Judge Chris M. McAlileys discovery procedures, which can be found on the Southern District of Florida website, www.flsd.uscourts.gov, under the tab for Judge McAliley, in the drop down menu Judge Information. Signed by Chief Judge K. Michael Moore on 1/21/2015. (apy)
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Filing 3
PAPERLESS PRETRIAL ORDER. THIS ORDER has been entered upon the filing of a Notice of Removal. Counsel for the removing party is hereby ORDERED to forward a copy of this Order to all other parties. It is further ORDERED that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shall hold a scheduling conference within twenty (20) days of the date of this Order. Within ten (10) days of the scheduling conference, counsel shall file a Joint Scheduling Report. The report shall indicate the proposed month and year for the trial and the estimated number of days required for trial. The scheduling conference may be held via telephone. At the conference, the parties shall comply with the following agenda that the Court adopts from S.D. Fla. L.R. 16.1: (1) Documents (S.D. Fla. L.R. 16.1.B.1 and 2) - The parties shall determine the procedure for exchanging a copy of, or a description by category and location of, all documents and other evidence that is reasonably available and that a party expects to offer, or may offer, if the need arises. Fed. R. Civ. P. 26(a)(1)(B). (A) Documents include computations of the nature and extent of any category of damages claimed by the disclosing party unless the computations are privileged or otherwise protected from disclosure. Fed. R. Civ. P. 26(a)(1)(C). (B) Documents include insurance agreements which may be at issue with the satisfaction of the judgment. Fed. R. Civ. P. 26(a)(1)(D). (2) List of Witnesses - The parties shall exchange the name, address, and telephone number of each individual known to have knowledge of the facts supporting the material allegations of the pleading filed by the party. Fed. R. Civ. P. 26(a)(1)(A). The parties have a continuing obligation to disclose this information. (3) Discussions and Deadlines (S.D. Fla. L.R. 16.1.B.2) - The parties shall discuss the nature and basis of their claims and defenses and the possibility of a prompt settlement or resolution of the case. Failure to comply with this Order or to exchange the information listed above may result in sanctions and/or the exclusion of documents or witnesses at the time of trial. S.D. Fla. L.R. 16.1.I. Failure of counsel to file a joint scheduling report may result in remand or dismissal, default, and the imposition of other sanctions including attorney's fees and costs. The filing of a motion to dismiss, or other motion, does not toll the time for filing a joint scheduling report. Counsel for the non-removing party must file a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within thirty (30) days after the filing of the Notice of Removal. The parties are hereby on notice that this Court requires all filings to be formatted in 12 point Times New Roman font and double spaced, including any footnotes, with one-inch margins on all sides. Failure to follow these formatting guidelines may result in the filing being stricken, any opposing filing being granted by default, and the imposition of other sanctions, including attorney's fees and costs. Telephonic appearances are not permitted for any purpose. Upon reaching a settlement in this matter the parties are instructed to notify the Court by telephone and to file a Notice of Settlement within twenty-four (24) hours. Signed by Chief Judge K. Michael Moore on 1/21/2015. (apy)
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| Filing 2 Judge Assignment to Chief Judge K. Michael Moore (ail) |
| Filing 1 NOTICE OF REMOVAL (STATE COURT COMPLAINT) Filing fees $ 400.00 receipt number 113C-7396105, filed by Continental Casualty Company. (Attachments: #1 Civil Cover Sheet, #2 Exhibit A)(Lemley, Charles) NO ANSWER FILED (ail). |
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