PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION OF THE COURT’S APRIL 13, 2007 ORDER
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 07-CIV-60072 COOKE/BROWN
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GLENN DRAGO, on behalf of himself and )
all others similarly situated, )
)
Plaintiff, )
)
)
v. ))
PETER VUCICEVICH, STEVE SULJA, )
ANDREW DeVRIES, and SULJA BROTHERS )
BUILDING SUPPLIES Ltd., )
)
)
Defendants. )
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION OF THE COURT’S APRIL 13, 2007 ORDER
Plaintiffs respectfully submit this memorandum of law in opposition to “Defendants’ Motion to Reconsider Order Directing Filing of Responsive Pleading and Memorandum in Support,” filed May 11, 2007.
Defendants’ motion should be denied for the following reasons:
1. Defendants’ Motion for Reconsideration is Untimely.
Defendants seek reconsideration of an Order entered on April 13, 2007. See DE # 12. Defendants should have moved for reconsideration within 10 days under Rule 59(b), Fed. R. Civ. P. Defendants had until no later than April 30, 2007 to seek reconsideration. Even if the Court were to apply the more liberal Rule 60, that rule still requires that motion for relief from a judgment or order be filed within a “reasonable time.” See Rule 60(b), Fed. R. Civ. P. More than a reasonable time has passed.
Defendants waited one month after the Court’s order directing an answer by May 1, and thirteen days after defaulting. The fact is that defense counsel withdrew from representing his clients, as discussed below and in plaintiff’s opposition to Attorney Markle’s motion for pro hac vice admission. See DE # 23.
2. Defense counsel voluntarily withdrew on April 26, 2007 because defendants refused to communicate with him, not because: “the Court left minimal time to digest the Complaint and prepare the appropriate motions ....” (Def. Mot. at 2). Defense counsel wrote to plaintiff’s counsel on April 26, 2007 advising that he had withdrawn from the case because his clients would not communicate with him.
Attorney Markle wrote:
This letter is to inform your firm that the undersigned will no longer be representing the above captioned parties.
Unfortunately, the aforementioned parties refused to communicate with me relative to the issues in the above mentioned matter, thereby making it impossible for me to adequately represent their interests.
Further, you are herein advised that I did not accept service for Mr. DeVries and therefore to the best of my knowledge he has not been served in the lawsuit and consequently is not properly in the case.
I regret the inconvenience the foregoing has caused your firm but as you can see if a client will not or refuses to communicate with his attorney the only alternative I have would be to refuse to represent such clients.
(See April 26, 2007 letter from Richard W. Markle to Kenneth J. Vianale, annexed hereto as Exhibit A) (emphasis added).
Accordingly, Markle has not shown any good cause permitting him to ignore Court deadlines. Indeed, the above-quoted letter shows a lack of candor with the Court on this motion.
3. Defense counsel’s challenge to the Court’s in personam jurisdiction is frivolous.
Defense counsel claims that his as yet unfiled motion for dismissal for lack of in personam jurisdiction is critical because if “an Answer is compelled at this time, it would prejudicially result in subjecting Canadian citizens to the personal jurisdiction of the Florida Court ...” (Def. Mot. At 3). To begin with, defense counsel originally asked the Court for more time to file an Answer for defendants. See “Unopposed Motion for Extension of Time to File an Answer,” DE # 10 at 1 (“The additional time is necessary to complete preparation of the answer.”). Second, defendants ignore the controlling statutes and case law under the Securities Exchange Act of 1934 (the “1934 Act”).
Defendants were sued under Sections 10(b) and 20(a) of the 1934 Act, which provides for worldwide service of process. The only relevant question under the 1934 Act is whether the defendant has minimum contacts with the United States, not the state where the action is pending, such as Florida.
See SEC v. Carillo, 115 F.3d 1540, 1543-44 (11th Cir. 1997).
CONCLUSION
The Motion for Reconsideration of the Court’s April 13, 2007 Order should be denied.
Dated: May 14, 2007
Respectfully submitted,
VIANALE & VIANALE LLP
By: s/ Kenneth J. Vianale
Kenneth J. Vianale
Florida Bar No. 0169668
Julie Prag Vianale
Florida Bar No. 0184977
2499 Glades Road, Suite 112
Boca Raton, FL 33431
Telephone: (561) 392-4750
Facsimile: (561) 392-4775
kvianale@vianalelaw.com
DAVID R. CHASE, P.A.
1700 East Las Olas Boulevard
Penthouse 2
Fort Lauderdale, FL 33301
Phone: (954) 920-7779
Fax: (954) 923-5622
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I filed the foregoing on May 14, 2007 using the Court’s CMECF
system, which will send a copy to the following parties:
Allan Michael Lerner
amlrwp@aol.com lernerlawclerk@aol.com;alassistant@aol.com
Richard W. Markle
I further certify that a true and correct copy of the foregoing was furnished via U.S. Mail,
this 14th day of May, 2007, to the parties listed below:
Richard W. Markle
P.O. Box 541182
Houston, Texas 77254
s/ Julie Prag Vianale
Fla. Bar No. 0184977
2499 Glades Road, Suite 112
Boca Raton, FL 33431
Telephone: (561) 392-4750
Facsimile: (561) 392-4775
jvianale@vianalelaw.com |
