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Williams v. Johanns

October 30, 2007

ROBERT WILLIAMS, ET AL., PLAINTIFFS,
v.
MIKE JOHANNS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Presently before the Court are two Motions filed by Plaintiff's counsel, Mr. James Myart, requesting a stay or a continuance of all proceedings in this case. Defendants strenuously oppose both Motions. After considering the Parties' submissions, the history of the case, and all publicly available information, the Court shall GRANT Plaintiff's [159] Motion for a 45-day stay and DENY Plaintiff's [169] Motion for a stay until December 20, 2007, for the reasons that follow.

I. BACKGROUND

This case has a long and tortured history that the Court shall not repeat in full. For present purposes, a description of the two Orders issued by Magistrate Judge John M. Facciola immediately preceding the filing of the instant motions provides the necessary context.*fn1

The first Order was issued by Magistrate Judge Facciola on July 26, 2007. See [140] Order and [141] Memorandum Opinion dated July 26 (the "July 26 Order"). This Order denied Mr. Myart's request for reconsideration of sanctions that Magistrate Judge Facciola had imposed as a result of Mr. Myart's "openly and repeatedly violat[ing] specific directives of this Court."

Id. at 8. The Order also denied Mr. Myart's leave to file witness lists. Id. This Court directed the parties to file any objections to the July 28 Order no later than August 14, 2007. See [144] Order dated August 6, 2007. Mr. Myart filed a motion for a 30-day extension on August 11, 2007, and again on August 12, 2007. See [147] Motion for Extension of Time to File objections dated August 11, 2007; [148] Amended Motion for Extension of Time to File objections dated August 12, 2007. Mr. Myart argued, in part, that he had insufficient time to obtain transcripts of certain hearings held before Magistrate Judge Facciola. See Amended Motion ¶ 19 ("Plaintiffs do not have all the transcripts for all the hearings in this matter. They must order the transcripts and will do so on the next business day from the filing hereof"). On August 15, 2007, Mr. Myart filed a notice with the Court indicating that he had ordered transcripts to seven hearings held before Magistrate Judge Facciola. See [149] Notice to the Court dated August 15, 2007 ¶ 1, 2 ("Counsel has ordered the transcripts of [seven hearings held] before the Honorable John Facciola" from the "Office Manager, Pro-Typist"). The notice further indicated that "Plaintiff's Counsel was informed that it would take 'thirty (30) days from the date that Pro-Typist received the CD before the transcripts would be delivered to counsel's office in San Antonio, Texas.'" Id. ¶ 3.

On August 16, 2007, this Court issued an Order granting Mr. Myart an extension. See [151] Order dated August 16, 2007. Although Mr. Myart had only requested a 30-day extension, the Court found that Mr. Myart's statement concerning a 30-day delivery time for the ordered transcripts implied that Mr. Myart's proposed order would not give him sufficient time to add any details from the ordered transcripts prior to the date his objections were due. Id. at 5. The Court also noted that Mr. Myart apparently waited until August 15, 2007, to order the transcripts he deemed necessary to file objections when he knew the objections were to be filed by August 14, 2007. Id. Based on this timetable and Mr. Myart's statement that "'[t]his is the first and last request for time enlargement on the issues before the Court,'" see [148] Amended Motion for Extension of Time ¶ 27, the Court granted Mr. Myart an even longer extension than he requested, ordering objections to be filed by September 28, 2007. Id. at 6. The Court advised Mr. Myart that it would "not grant any further extensions of time to Plaintiffs to file their Objections or any motion to seal, particularly in light of this generous extension." Id. at 7.

The second Order relevant to the instant Motions was issued by Magistrate Judge Facciola on September 4, 2007. See [155] Order and [156] Memorandum Opinion dated September 4, 2007 (the "September 4 Order"). This Order granted in part and denied in part Plaintiffs' Motion to compel answers to interrogatories and for sanctions and denied Plaintiffs' request to extend the deadline for discovery. See [156] Memo. Op. at 10. Mr. Myart filed a motion to extend the time to file objections to the September 4 Order on the day objections were due, September 14, 2007. See [157] Motion for Enlargement of Time dated September 14, 2007. The basis for Mr. Myart's request was his busy trial calendar. Id. ¶¶ 4-6 (Plaintiffs are in need of additional time to file said brief due to Counsel's trial schedule"). Mr. Myart also indicated that he was preparing pleadings for the objections to the July 26 Order, but "has not yet received the requested trial transcripts to prepare such pleadings." Id. ¶ 7. Notwithstanding the continued delays, this Court granted Mr. Myart's Motion and allowed him to file objections to the September 4 Order by October 14, 2007. See Minute Order dated September 17, 2007.

The circumstances surrounding the July 26 Order and September 4 Order provide the context for Mr. Myart's subsequent filings. On September 27, 2007, the day before Mr. Myart's objections to the July 26 Order were due to be filed, Mr. Myart filed the instant [159] Motion for Continuance or in the Alternative Stay Pending Counsel's Release from Medical Care and Request for Expedited Ruling on September 27, 2007. In this Motion, Mr. Myart reports that he has suffered a "major medical crisis," Pls.' Mot. ¶ 1, and attaches a note from his physician, Dr. Leo K. Edwards, Jr., ordering Mr. Myart "not to work at all for at least the next thirty (30) days." Id. Ex. A. In support of his Motion, Mr. Myart references the now-longstanding issue of his failure to receive transcripts necessary for filing his objections. Id. ¶ 14 ("[Counsel] has not yet received one single transcript of the Court's hearings in which to prepare his recusal motion or objections to the magistrate's orders . . ."). Based on these circumstances, Mr. Myart requests a "continuance of all matters pending before the Court for at least the (sic) forty (sic) (45) days or until Counsel notices the Court of his release from medical care." Pls.' Mot. at 6. Defendants filed an [161] Opposition to Mr. Myart's Motion on September 28, 2007. Defendants argue that Mr. Myart has a history of "untruthfulness and deceit" and, in the absence of additional information concerning the status of his health, "circumstances clearly undermine any presumption of good faith that might otherwise attach to counsel's motion for continuance or stay." Defs.' Opp'n to Pls.' Mot. at 4.

Before the Court issued a ruling on that Motion, Mr. Myart filed a [169] Second Motion for Continuance or in the Alternative Stay Pending Counsel's Release from Medical Care and Request for Expedited Ruling on October 24, 2007. This Motion is based on Mr. Myart's physician having extended his "strict medical leave through November 30, 2007." Pls.' Mot. ¶ 2. Mr. Myart requests until December 20, 2007, to file his objections. Id. ¶ 3. Defendants filed an [170] Opposition to Mr. Myart's second Motion on October 24, 2007, arguing that counsel "is not so injured or ill as to be unable to litigate these cases."*fn2 Defs.' Opp'n to Pls.' Mot. at 2.

II. DISCUSSION

A. Availability of Transcripts

Mr. Myart's instant Motions, like his previous requests for extensions, indicate that he has not received transcripts of proceedings he claims are necessary to any filing of objections to the Magistrate Judge's Orders. Mr. Myart reported to the Court on August 15, 2006, that he had ordered these transcripts. See [149] Pls.' Notice ¶ 1, 2 ("transcripts have been ordered this day from . . . [the] Office Manager, Pro-Typist"). As of September 27, 2007, the date of the instant Motion, Mr. Myart indicated that "he has not yet received one single transcript of the Court's hearings in which to prepare his recusal motion or objections to the magistrate's orders herein. Counsel will attempt, even ill, to ascertain why this is the case." Pls.' [159] Mot. ¶ 14.

In light of the delays that have continued to plague the availability of the transcripts, the Court spoke with the Office Manager to ascertain why Mr. Myart had not been sent the transcripts he requested. The Office Manager informed the Court that Mr. Myart never ordered any transcripts. While it appears that Mr. Myart called to inquire about ordering transcripts, he said he would call back another day to place an order. He apparently never called back. The Office Manager also informed the Court that transcripts are never prepared without first having obtained an order from a customer backed by a credit card or check. ...


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