Deptula v. Rosen

Background

All parties were represented by counsel. The court addressed repeated problems with compliance with its orders.

Defendants Jonathan Rosen and Ceramica de Espana, who had not been served with process, filed an initial motion to dismiss that they called a motion to dismiss the case as frivolous. Judge Analisa Torres denied that motion and allowed defendants to file one motion under Rule 12 of the Federal Rules of Civil Procedure by October 8, 2020. Defendants then filed a motion on September 24 and an expanded motion on September 25 without withdrawing the first filing. The expanded motion relied largely on 230 pages of printed text messages that defendants’ counsel had not authenticated. The court had already placed briefing on that motion on hold while it considered attorney Jean Philippe G. Bruno’s request to withdraw.

On October 5, defendants filed a letter without requesting permission first. The letter sought permission to file another revised dismissal motion or otherwise supported the pending motion. The court stated that Judge Torres’s order had limited defendants to one dismissal motion and that the October 2 order had placed briefing on the pending motion on hold.

Plaintiff’s lawyer also failed to comply with the October 2 order. He filed proof of service without stating when plaintiff was served, filed his withdrawal request after the deadline, and did not provide the required sworn statement, declaration, or other admissible evidence supporting withdrawal. He also publicly filed material describing attorney-client communications instead of filing a redacted public version and an unredacted sealed version. The court further stated that a retainer agreement could not restrict the client’s right to decide whether to settle and that counsel’s reference to “Fed. R. Civ. Pro. 74” was misleading because no such current rule applied and counsel had not yet been relieved.

Rulings and directives

The court ordered the following:

- To the extent defendants’ October 5 letter was a supplemental brief supporting the September 25 dismissal motion, the court disregarded it because it violated the October 2 order. - To the extent the letter sought permission to file another dismissal motion, the court denied the application. - The superseded September 24 dismissal motion at Docket No. 27 was deemed withdrawn. Defendants could withdraw the September 25 motion at Docket No. 29, but could not continue multiplying the proceedings while the withdrawal request was pending. - Attorney Bruno’s October 15 filing at Docket No. 38 was ordered placed under electronic seal and made available only to the filing party and the court. Defendants were ordered to destroy all copies and not use the filing or its contents. - Plaintiff was given until October 22, 2020, to respond to the withdrawal request. The October 23 telephone conference remained scheduled, and both plaintiff and attorney Bruno were required to attend. - Attorney Bruno was ordered to immediately serve the order on plaintiff and promptly file proof of service. - The Clerk was directed to close Docket Nos. 27, 37, and 38.

This order addressed filing practices, counsel’s withdrawal request, confidentiality, and scheduling. It did not decide the merits of plaintiff’s underlying claims or the pending dismissal motion.