Opinion
No. 94-11148 S, Adv. No. 96-1183 S
May 8, 2001
ORDER SETTING ASIDE ORDER TO SHOW CAUSE WHY ATTORNEY FOR PLAINTIFF SHOULD NOT BE SANCTIONED
This matter came before the Court on June 25, 2001 , to consider an Order to Show Cause why Attorney for Plaintiff Should Not be Sanctioned (OSC) issued May 8, 2001 . (Doc. 17.) Plaintiffs attorney appeared personally and through her counsel Robert J. Maguire. Robert Beck also appeared for the Creditors Trust.
The complaint was originally filed for plaintiff Reeves by Ms. Behles as part of Behles-Giddens P. A. By the time the OSC was issued, Ms. Behles was part of J. D. Behles Associates, a Commercial Law Firm, P. C. For purposes of this order, references to Plaintiffs Counsel or Counsel will refer to either firm and/or to Ms. Behles as may be appropriate.
In addition to the OSC, the Court also considered Plaintiffs Counsels Motion to Set An Order to Show Cause (doc. 18) and the Amended Response to Motion to Set Aside Order to Show Cause (doc. 23), also filed by Counsel. This ruling disposes of both the motion and the amended response, which the Court has treated as an amended motion. The Court has reviewed both the relevant portions of the file and the transcript of the hearing of January 25, 2001 , at which the Court ordered Ms. Behles to submit a form of dismissal of the case. (The transcript is filed on the left side of the paper file in this adversary proceeding.)
The Court finds as follows: On January 25, 2001 , the Court ordered Ms. Behles to file a Rule 41 motion to dismiss this adversary proceeding, as agreed by all the parties. On January 26, 2001 , Ms. Behles did file a voluntary dismissal, but she filed it in the appeal to the United States District Court of the order confirming the plan in the underlying case (No. CIV 97-1594 BB/JHG), so that it did not appear in and had no effect on this adversary proceeding. Nor was this Court aware of the filing of the notice of dismissal in the United States District Court appeal. As is customary with this Court, on March 26, 2001 the Court noticed a presentment hearing (doc. 15), to take place on April 18, 2001 , when the Court did not receive a form of dismissal as ordered within a reasonable time, sending the notice to Counsel and the Office of the United States Trustee, since Counsel was the only person who was supposed to do something in connection with the case. Counsel then failed to appear for the hearing on April 18, 2001 , explaining afterward, among other things, that she did not believe she needed to appear given that she thought (mistakenly, as it turned out) that she had submitted the required order. In an unsolicited but very helpful Response of Robert O. Beck to Motion to Set Aside an Order to Show Cause, filed May 30, 2001 (doc. 21), Mr. Beck pointed out to everyone the erroneous filing, thereby explaining the source of the start of the problem.
At the hearing on the OSC, this Court considered the facts as disclosed by the record and the questions posed by Mr. Maguire. The Court further finds that filing the notice of dismissal in the wrong proceeding and in the wrong court failed to comply with this Courts order to file the notice of dismissal in this adversary proceeding, that the erroneous filing caused the needless expenditure of resources by Counsel (or perhaps her clients), Mr. Beck (or perhaps his client) and the Court, and that Counsel has offered no reasonable excuse for the failure to appear at the April 18 hearing, which was noticed up two months after Counsel had filed her notice of dismissal (in the wrong matter), thus putting Counsel on notice to investigate and determine what the problem was.
Nevertheless, accepting that Counsel intended no disrespect to the Court, and giving Counsel the benefit of the doubt that she somehow thought that there was no need to appear for the April 18 hearing or contact the Court to determine whether it was necessary to appear, the Court has determined not to assess any sanctions for failure to appear at the April 18 hearing. Nevertheless, as the Court explained to the parties at the hearing on June 25, Counsel is warned to deal with the issues of filing and appearances more carefully in the future. IT IS THEREFORE ORDERED that the Order to Show Cause why Attorney for Plaintiff Should Not be Sanctioned, issued May 8, 2001 , is set aside.