Opinion
Civil Action No. DKC 2002-2680
May 13, 2004
MEMORANDUM OPINION
Presently pending and ready for resolution in this breach of contract case are the motions by Intelsat USA License Corp. (1) to replace COMSAT Corporation as Plaintiff in this case, and (2) for approval of a consent judgment against Defendant. The issues have been briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the court will grant the motion to substitute and will deny the motion to approve the consent judgment at this time.
I. Background
On August 14, 2002, COMSAT Corporation filed a complaint against Defendant Melbourne International Communications Limited for breach of contract. On November 11, 2002, Defendant filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Southern District of Florida. This court subsequently ordered this case administratively closed without prejudice to the right of Plaintiff to reopen the case for good cause shown. On January 10, 2003, the bankruptcy court entered an order dismissing Defendant's bankruptcy case. On June 5, 2003, COMSAT filed a motion to reopen this case, which the court granted.
During the course of the above proceedings, on or about November 25, 2002, Intelsat acquired certain assets of COMSAT, including the rights and claims of COMSAT against Defendant. Intelsat now has moved, pursuant to Fed.R.Civ.P. 25(c), to replace COMSAT as Plaintiff in this action. In addition, Intelsat seeks approval of a consent judgment in favor of Intelsat against Defendant, arising from the breach of contract at issue.
II. Analysis
Rule 25(c) provides, in pertinent part, that in the event of a transfer of interest, the district court may "upon motion direct the person to whom the interest is transferred to be substituted in the action." Fed.R.Civ.P. 25(c). The decision to order substitution is a matter within the sound discretion of the court. See 7C Charles A. Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure § 1958 (2d ed. 1986) ("The court, if it sees fit, may allow the transferee to be substituted for the transferor"). Where an entity receives a transfer of pertinent interest after the commencement of litigation, substitution of that entity into the action — as Intelsat seeks here — by the district court is appropriate under Rule 25(c). See Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 427 (1991).
In the instant case, Intelsat asserts that because of its acquisition of certain assets from COMSAT, including the rights and claims against Defendant, Intelsat is the "real party in interest" to prosecute this action under Rule 17(a). Both COMSAT and Intelsat are represented by the same counsel and presumably COMSAT consents to the substitution. Defendant, which is a corporation, has never appeared in this action through counsel, but apparently a copy of the motion was sent to the corporation and to a person identified as the Liquidating Trustee. No opposition has been received to the motion to replace COMSAT as plaintiff in this case. Accordingly, the court will grant the motion to substitute Intelsat as Plaintiff in this action. See Electronized Chems. Corp. v. Rad-Mat, Inc., 288 F. Supp. 781, 783 (D.Md. 1968).
There is, as noted above, also a motion for an order approving consent judgment against Melbourne International Communications Limited, which purports to be signed by an attorney for the Receiver, David Cimo. However, pursuant to the procedures adopted by the court for electronic filing, the purported signature is not effective. The document was filed electronically using the log-in and password of Mr. Englander, counsel for COMSAT and Intelsat, and thus the /s/ with the typed name constitutes his signature. Mr. Cimo is not counsel of record in this case and his purported signature is not in an acceptable form.
Pursuant to the procedures manual, when the signature of someone other than counsel of record is needed, Section III.E.4 applies:
4. Non-Attorneys
Documents which are required to be signed by persons who are not counsel of record in a particular case (verified pleadings, affidavits, etc.), may be submitted in electronic format in any of the following ways so long as counsel has and maintains a signed copy.
a. If the document is less than 15 pages, it can be scanned and then filed electronically.
b. An electronic version of the document bearing a "/s/" can be filed along with a statement by counsel that he or she has a signed copy, as in the following example./S/*
Polly Plaintiff
* Counsel hereby certifies that he or she has a signed copy of the foregoing document available for inspection at any time by the court or a party to this action.
c. An electronic version of the document bearing a "/s/" can be filed with a scanned copy of the signature page as an attachment./S/*
Polly Plaintiff
* A copy of the signature page bearing an original signature is attached hereto.
If Mr. Cimo were admitted to the bar of this court and entered his appearance in this case, then Mr. Englander would have different means to establish that a paper was signed by him pursuant to Section III.E.2. of the manual:
2. Documents Requiring Signatures of Multiple Attorneys
Pleadings and papers which are normally signed by more than one attorney, regardless of whether the attorneys represent the same party or different parties may be handled in any of the following ways.
First, the attorney whose login and password are being used to file the document may obtain approval from any other attorney to state that the other attorney has authorized him or her to sign the document on his or her behalf. Such approval may be indicated as in the following example:/s/ /s/
Sally Solicitor, Esq. John M. Barrister, Esq. (Signed by John M. Barrister with permission of Sally Solicitor)
In such circumstances, the attorney whose login and password is used to file the document is responsible for maintaining a record of when and how permission was obtained to sign the other attorney's name in case any questions arise.
Second, the attorney whose login and password are being used to file the document may obtain and maintain in his or her records a paper copy of the document signed by the other attorney. Possession of such a signed copy may be indicated as in the following example:/s/ /s/
Sally Solicitor, Esq. John M. Barrister, Esq. (Signed copy of document bearing signature of Sally Solicitor is being maintained in office of John M. Barrister)
In such circumstances, the attorney whose login and password are used to file the document is responsible for maintaining the signed copy of the document until all appeals have been exhausted or the time for seeking appellate review has expired.
Third, the attorney whose login and password are being used to file the document may obtain original signatures from all attorneys who are filing the document, scan the signature page only and file it as an attachment to the document. In this situation, the electronic version should bear language similar to the following:/s/* /s/*
Sally Solicitor, Esq. John M. Barrister, Esq.
* A copy of the signature page bearing original signatures is attached hereto as Attachment 1. In such circumstances, the attorney whose login and password are being used to file the document is responsible for maintaining the signed copy of the document until all appeals have been exhausted or the time for seeking appellate review has expired.
Due to the signature deficiencies articulated above, the motion for approval of the consent judgment will be denied. A separate Order will follow.