Judge King Defaults Wachovia for Blowing Deadline -- Time to Take REALLY Deep Breath.

Mere hours after Judge Gold's excellent FBA speech on mindfulness, Judge King reminded counsel -- including heavyweights at Hunton & Williams and Birmingham's Maynard Cooper & Gale, that it's probably a good idea to double or triple calendar dates to respond to an amended complaint -- even if someone else is supposed to be handling it.

Why, you might ask?

All the Judge did was sua sponte enter a default against Wachovia for failing to respond to the Amended Complaint in an auction rate securities action!

The next day, after much deep breathing exercises I am sure (ed. note -- and possibly a call to the carrier), Birmingham lawyer Carl S. Burkhalter took one for the team (he also referenced his secretary and departed associate):

Defendant has not filed a timely answer to Plaintiff’s amended complaint. The reason for that failure, as explained below and in an accompanying declaration, is that the deadline date for answering Plaintiff’s amended complaint was not entered on the calendar of Carl S. Burkhalter, the undersigned attorney and primary defense counsel in this matter. The undersigned attorney depends on an associate and his secretary to docket deadline dates, but the associate in question (Ms. Prim Formby Escalona) left the firm in January 2011, whereas the undersigned’s secretary was unaware of the deadline and, thus, failed to make a calendar entry. Having said that, it is the undersigned’s duty to meet court-imposed deadlines. He accepts complete responsibility for this failure and he is profoundly sorry for the oversight.

Note to Carl -- your secretary does not get CM/ECF emails, you do.  Did you forward it to her?

Here's what he says happened:

Ordinarily, the February 17th deadline would have been docketed on the undersigned’s calendar by either or both of two persons: the associate on the file or Ms. Laura Juarez, the undersigned’s secretary. See Burkhalter Declaration. Unfortunately, these redundant systems failed in this instance, something that has never before happened in the undersigned’s twenty-year practice of law. The associate, Ms. Prim Formby Escalona, had left the firm in early January 2011 to become Chief Deputy for the Alabama Solicitor General. Id. In the undersigned’s federal court cases, any e-mail notices he receives are usually “auto-forwarded” to Ms. Juarez, who then makes the relevant deadline notation on the undersigned’s calendar. However, for some unknown reason, the “auto-forwarding” rule did not function in this instance, meaning that Ms. Juarez did not make a deadline entry on the undersigned’s calendar.

Oh boy.

Life happens, as they say.

Let's see what the plaintiff has to say about all this:

While Mr. Burkhalter’s efforts to take responsibility for Wachovia’s failure to timely comply with the Court’s Order appear sincere, they ignore the fact that two other current Wachovia lawyers were served with the Order and Amended Complaint. Thus, the Motion sets forth no good cause for their – or Wachovia’s – failure to timely respond. Moreover, the Motion fails to provide evidence in support of its purported defenses to STLA’s claims. Meanwhile, STLA is prejudiced by the delay. For these reasons, the Motion should be denied.

The Court has not yet ruled on the motion.

Who says being a litigator ain't stressful?

Judge Gold's Mindfulness Campaign is Already Working!

DeniedasAbsurd

Last week at the FBA luncheon Judge Gold delivered a tremendous message of mindfulness in the practice of law, and we're already starting to observe concrete, positive results.

For example, after I served a purely tactical 57.105 motion on opposing counsel the other day, the lawyer called me blabbering on as usual about my "bad faith."

Rather than getting into a shouting match about professionalism I simply asked "how does my motion make you feel?" and we suddenly had a really nice dialogue about organic yogurt and green tea.

So I think David Pollack's skepticism is unwarranted.

Also, per Dennis Kainen's question, I see judges are likewise starting to jump aboard the mindfulness bandwagon.

Here's a recent order from Magistrate Judge Brown that denies a motion for clarification "AS ABSURD":

The Court finds this motion totally disingenuous. One need not be a lawyer to understand that all responses to all discovery propounded by plaintiffs as of [December 21, 2010] shall be delivered on or before Monday, January 31, 2011 (emphasis added), means all responses to all discovery propounded as of the date of said order. While defendants suggest that they "seek clarification" - no clarification is needed. Perhaps it might be worth pondering ... what part of "all" do you not understand? But - it doesn't end there.

Defendants - in an attempt to somehow confuse the obvious - suggest that because they weren't seeking an extension in the motion for document production they weren't sure if this order pertained to same. There are two problems with that absurd argument: (1) the deadline given to defendants was already an "extension" since it was more than thirty (30) days from the date of  the order - much less from the date the discovery was propounded; and (2) if the confused defendants didn't understand this, and they didn't (by their own admission) ever seek an extension for the document production - why did they wait until almost one month after that deadline to file this motion?

The deadline for completion of discovery is in May, 2011. Therefore, and the Court being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:

1. This motion for extension is GRANTED. The motion for clarification is DENIED AS ABSURD.

This seems harsh I agree, but think how much worse this Order could have been!!

Things Inside My Head.

 Here's a quick snapshot of what's inside me noggin this morning, in no particular order:

1.  I plan to ask for a kosher meal at today's FBA luncheon.

2.  It's almost worse that Con Law Perfesser Obama legitimized Gitmo, indefinite detention, and military tribunals than it is that "rancher" George W. Bush instituted these Constitutional aberrations in the first place.

3.  Could Johnny Storm really be dead?

4.  I totally agree with Andrei Codrescu on NPR the other day about defacing my new e-book with some "crowdsourced" idiocracy contest regarding highlights:

And this thing on my Kindle is supposed to be new. And then I discovered that the horror doesn't stop with the unwelcomed presence of another reader who's defaced my new book. But it deepens with something called view popular highlights, which will tell you how many morons have underlined before so that not only you do not own the new book you paid for, the entire experience of reading is shattered by the presence of a mob that agitates inside your text like strangers in a train station.

 5.  Dan Le Batard may finally have to blame someone I've never seen him identify before as being responsible for anything negative, ever -- the players.

6.  Wes Parsons was only hoping to lose the latest citrus canker trial by $3 million, but instead lost by $12 million (plus fees and substantial interest), but what's $10 or so million between friends:

"I was hoping for the amount of compensation already paid, which was around $3 million."

Question -- wasn't there a defense on liability too?

7.  This post is starting to resemble Greg Cote.

(Note -- no offense, but I have met Greg Cote).

FBA 30th Anniversary Reception Tonight!

I'm spending all day getting ready for the big FBA reception tonight (David has photos here).

For me that means the usual -- face painting, signed Brett Barfield jersey, mani/pedi at the Hyatt.

I'm also trying to come up with something funny to say about Egypt.

This is going to be HUGE!