UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JOHN DOE ) Plaintiff, ) v . ) Civil Action No . 1 :06-CV-01645 ) Judge Richard J . Leon LOUIS WOLF, ) COVERT ACTION PUBLICATIONS, INC . ) Defendants . ) PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION IN OPPOSITION TO DEFENDANTS' MOTION TO EXTEND TIME TO FILE A OPPOSITION TO PLAINTIFF'S MOTION TO PROCEED IN PSEUDONYM AND TO RESPOND TO PLAINIFF'S COMPLAINT FOR DAMAGES INTRODUCTION The defendant's Louis Wolf and Covert Publications, Inc . were served via certified mail at or about 11 :00 a .m . Septembe r 29, 2006 . The Complaint Package that included the Plaintiff' s Complaint, his Motion to Proceed in Pseudonym and the Court' s Order Granting the Plaintiff's Motion . See Attachment A Domesti c Return Receipt and Track and Confirm Record . According to the defendant's motion the defendants' allege their services wer e retained on October 13, 2006 . Not including the 2 9 th of Septembe r 2006 the defendants' had the Complaint package for fifteen (15 ) days prior to retaining Counsel . See Attachment B Defendant' s Motion to Extend Time Page 1 Paragraph 2 . The defendants clai m that they need until November 8, 2006, to fully respond to th e Plaintiff's complaint for damages and Motion to Proceed i n 1 Case 1:06-cv-01645-RJL Document 11 Filed 10/22/2006 Page 1 of 7 Pseudonym, when all that is needed is an answer to th e plaintiff's complaint . The counsel for the defendant, according to the defendant' s motion, is unable to file a timely answer to the plaintiff' s complaint because of the defendants' counsel's commitments t o other cases and the defendant's counsel desire to file a motio n opposing the Plaintiff's Motion to Proceed in Pseudonym eve n though this Court has granted the plaintiff's request to Procee d in Pseudonym . The defendant's counsel called the plaintiff's counsel' s office several times . The message left was an allegation by th e defendant's counsel that service was improper and if the plaintiff's counsel agreed to an twenty (20) day extension th e defendants would accept service . The Plaintiff's attorne y returned the defendant's call on October 13, 2006 and left a message on the defendant's answering service . Service issues are normal defenses that are part of th e defendant's answer and do not prevent a timely response to a complaint . Furthermore, the plaintiff's counsel would not agre e to an enlargement of time so that the defendants could file a n answer and motion in opposition to this Courts' granting of th e Plaintiff's Motion to Proceed in Pseudonym . 2 Case 1:06-cv-01645-RJL Document 11 Filed 10/22/2006 Page 2 of 7 ARGUEMENT The Federal Rule of Civil Procedure 6(b) provides : . . . "When by these rules or by a notice given thereunder or by order o f court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in it s discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration o f the period originally prescribed or as extended by a previou s order, or (2) upon motion made after the expiration of th e specified period permit the act to be done where the failure t o act was the result of excusable neglect ; but it may not extend the time for taking any action under Rules 50(b) and (c) (2) , 52 (b) , 59 (b) , (d) and (e), 60 (b) , and 74 (a) , except to the extent and under the conditions stated in them . " Rule 6(b)(1), which applies to the defendants' motion , allows a court ("for cause shown" and "in its discretion") t o grant a request for an extension of time, whether the request i s made with or without motion or notice, provided the request i s made before the time for filing expires, as such excusabl e neglect or its factors are not applicable . The defendants filed their motion for an extension of tim e to respond to the Plaintiff's complaint, and to file a n opposition to plaintiff's request to Proceed in Pseudonym approximately one (1) week prior to the date an answer to the Case 1:06-cv-01645-RJL Document 11 Filed 10/22/2006 Page 3 of 7 plaintiff's complaint was due . The issue before the court i s whether the defendant's counsel allegation that other cases and defendant's desire to oppose the Court's granting of th e plaintiff's request to Proceed in Pseudonym satisfy the "fo r cause shown" standard . ' In Pioneer Inv . Serv . Co . v . Brunswick Assocs . Ltd . Partnership, 507 U .S . 380, 113 S . Ct . 1489, 398 (1993), as case involving a Rule6(b)(2), the post deadline filing of a motion . The Court in ascertaining the culpability of respondents ' attorney gave little weight to the fact that the respondents ' counsel was experiencing upheaval in his law practice at the time a filing was due in Bankruptcy Court . Even though the motion before this Court is a Rule 6(b) (1) filing rather than a Rule 6(b)(2) filing the Pioneer Inv . Court's holding tha t attorney office upheaval should be given little weight shoul d apply with equal force with the issues before the Court . As in Pioneer Inv . the Court in ascertaining the culpability of th e defendant's attorney should give little to no weight to th e defendant's attorney allegation that there is upheaval in his o r her law office in determining whether the defendants have me t the "for cause shown" standard . The upheaval in the defendants ' attorney's office according to the allegations in the defendants' motion are to many clients and the attorneys desir e 1 The filing of a timely answer to the plaintiff's complaint do not waive the defendants' right to challenge the Court s granting of the plaintiff's request to Proceed in Pseudonym . 4 Case 1:06-cv-01645-RJL Document 11 Filed 10/22/2006 Page 4 of 7 to file an opposition to this Court's granting of th e plaintiff's request to Proceed in Pseudonym . Each Rule of Civi l Procedure has its limits . It is the plaintiff's belief that th e "for cause shown" standard does not include situations where a n attorney makes a decision, as we have before us, not to meet a deadline because he/she made a decision to voluntary accept a case which the attorney do not have time to litigate . I n addition, the Court must ask itself whether the defendant s attorney has acted in good faith when it calls the plaintiff' s attorney and threatens to challenge service and then files a motion with the Court requesting an enlargement of time t o respond to the plaintiff's complaint and file a motion t o opposition motion to this Court's approval of the plaintiff' s request to Proceed in Pseudonym . Clearly the defendant' s attorney desire to file an opposition motion to this Court' s approval of the plaintiff's request to Proceed in Pseudonym doe s not meet the "for cause shown" standard set forth in Rul e (6)(b)(1) . The Supreme Court in numerous cases have held that client s must be held accountable for the acts and omissions of thei r attorneys . In Link v . Wabash R . Co ., 370 U .S . 626, 8 L . Ed . 2 d 734, 82 S . Ct . 1386 (1962) . The Court held "that a client ma y be made to suffer the consequence of dismissal of its lawsui t because of its attorney's failure to attend a scheduled pretria l 5 Case 1:06-cv-01645-RJL Document 11 Filed 10/22/2006 Page 5 of 7 conference ." In so concluding, the Court found "no merit to th e contention that dismissal of petitioner's claim because of hi s counsel's unexcused conduct imposes an unjust penalty on the client ." Id ., at 633 . The Court wrote, "Petitioner voluntaril y chose this attorney as his representative in the action, and h e cannot now avoid the consequences of the acts or omissions o f this freely selected agent . Any other notion would be wholly inconsistent with our system of representative litigation, i n which each party is deemed bound by the acts of his lawyer agen t and is considered to have 'notice of all facts, notice of which can be charged upon the attorney ." Id ., at 633-634 (quoting Smith v . Ayer, 101 U .S . 320, 326, 25 L . Ed . 955 (1880)) . Thi s principle also underlies the Court's decision in United States v . Boyle, 469 U .S . 241, 83 L . Ed . 2d 622, 105 S . Ct . 687 (1985) , in which the Court held that a client could be penalized for counsel's tardy filing of a tax return . It is the plaintiff's belief that this principle applie s with equal force here and requires that the defendants should b e held accountable for the acts and omissions of their chosen counsel and the defendants' motion for an enlargement of time should be denied since they have failed to meet the "for caus e shown" set forth in Rule (6) (b) (1) . 6 Case 1:06-cv-01645-RJL Document 11 Filed 10/22/2006 Page 6 of 7 CONCLUSION It is respectfully submitted that defendant's motion for a n enlargement of time should be denied, because, as noted above the defendants have failed to meet the standards "for caus e shown" set forth in Rule (6) (b) (1) and the defendants should b e held accountable for the acts and omissions of their chose n counsel . Dated : October 22, 2006 J•~ n Green, (#47 .592 ) LMAN & ASSOCIATE S 0 Pennsylvania Ave ., SE, Suite 41 0 ashington, D .C . 2000 3 (202) 547-908 0 Attorneys for Plaintif f 7 Case 1:06-cv-01645-RJL Document 11 Filed 10/22/2006 Page 7 of 7
