IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TONY L. WARE, CEO and
T. L. WARE BOTTLING COMPANY,
INC.
Plaintiffs,
v.
FLEETBOSTON FINANCIAL CORP.,
f/k/a BANKBOSTON CORP.,
Defendant.
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Civil Action
File No. 1:05-CV-0426MHS
DEFENDANT’S REPLY TO PLAINTIFFS’ RESPONSES
TO ORDER TO SHOW CAUSE AND DEFENDANT'S
REQUEST TO CONDUCT DISCOVERY
Plaintiffs' response to this Court's May 26, 2005 Orders
illustrate exactly why Plaintiffs and their counsel deserve the
strongest sanctions available.1 Plaintiffs and their counsel
make no showing as to any legal or moral justification for their
conduct and, ignoring this Court's directives, they fail to
disclose their financial conditions. Consequently, the Court
should impose its strongest sanctions (including, but not
limited to, monetary sanctions) after allowing discovery as to
the financial conditions of Plaintiffs and their counsel.
1 FBF makes special appearance to file this brief and
specifically reserves all defenses and objections, including but
to not limited to improper service and lack of personal
jurisdiction.
Case 1:05-cv-00426-MHS Document 30 Filed 07/11/05 Page 1 of 9
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In its two May 26, 2005 Orders granting Defendant
FleetBoston Financial Corporation (“FBF”)’s motions, the Court
ordered Plaintiffs and their counsel to show cause why the Court
should not impose sanctions against them. The Court also
specifically directed Ware and his counsel to provide "a
complete listing of their current income, assets, and
liabilities." On the day the responses to the Orders to Show
Cause were due, Plaintiffs and their counsel filed additional
frivolous pleadings in the form of a motion titled “Motion to
Set Aside Void Orders and Remand Case for Lack of Subject Matter
Jurisdiction,” two "Declarations" and a Notice of Appeal.2
Rather than show cause why their conduct is not sanctionable,
the declarations do little more than confirm the intentions of
Plaintiffs and their counsel to continue filing frivolous legal
papers (see Declarations at ¶¶ 5,6). Both declarations are
completely deficient in their descriptions of current financial
conditions.
For example, in defiance of the Court's order, Mr. Johnson,
who appears to be actively engaged in the practice of law (See
¶ 9 of Johnson Declaration; www.accidentattorneys.com) provides
2 Despite the filing of a Notice of Appeal, a district court can
consider the award of sanctions. See Mahone v. Ray, 326 F.3d
1176, 1180-81 (11th Cir. 2003) (court possessed jurisdiction over
Rule 11 motion because sanctions issues are collateral to merits
of an appeal).
Case 1:05-cv-00426-MHS Document 30 Filed 07/11/05 Page 2 of 9
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no information concerning his income. Mr. Johnson references a
home of unspecified value and a car as his only assets and
references unsubstantiated alleged liabilities.
Mr. Ware similarly fails to identify his current income
(although he claims to have been unemployed since December 7,
2004).3 Mr. Ware also states that his only assets are a $400 car
and a net total of $13 in two bank accounts. Needless to say,
Ware's statement of claimed assets is quite incredible.
Accordingly, FBF requests that the Court allow it to take
discovery aimed at ascertaining the true financial conditions of
Plaintiffs and their counsel. FBF requests to take written
discovery and, if necessary, to depose Plaintiffs and their
counsel. In written discovery, FBF will seek the production of
the following documents and information:
From Mr. Johnson:
FBF intends to seek the following documents:
1) Federal and state tax returns filed by Mr. Johnson and
Johnson and Associates, P.C., including all schedules for tax
years 2002, 2003, and 2004.
3 Curiously, this statement of unemployment is directly contrary
to the prior sworn testimony of Michael R. Johnson, Sr. stating
that Mr. Ware is his law clerk. (March 15, 2005 Affidavit of
Michael R. Johnson, Sr. Attorney for Plaintiff T.L. Ware
Bottling Co., Inc. at ¶ 2.)
Case 1:05-cv-00426-MHS Document 30 Filed 07/11/05 Page 3 of 9
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2) All K-1s, W-2s, or other similar documents showing
compensation paid to Mr. Johnson during the years 2002, 2003,
and 2004.
3) Documents evidencing Mr. Johnson's ownership interest
in Johnson & Associates, P.C.
4) For the time period from January 1, 2002 to present,
all financial statements identifying the assets or liabilities
for Johnson & Associates, P.C. or for Michael R. Johnson, Sr.
5) For the last 12 months (June 2004 through June 2005),
statements of account for accounts at any financial institution
in which Mr. Johnson maintained any interest (including, but not
limited to, joint accounts with Mr. Johnson's wife).
6) All documents listing any appraised value of Mr.
Johnson's home, including, but not limited to, all documents
associated with financing or refinancing said home.
7) Documents sufficient to identify with particularity
Mr. Johnson's alleged current liabilities.
8) Documents evidencing Tony L. Ware’s dates of
employment with Johnson & Associates, P.C. and all compensation
paid to Mr. Ware at any time from January 1, 2002 to present.
FBF intends to seek the following information:
1) Identification of all accounts with any financial
institution in which Mr. Johnson has had any interest at any
Case 1:05-cv-00426-MHS Document 30 Filed 07/11/05 Page 4 of 9
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time during the last 12 months (June 2004-June 2005), including
the account number for each account.
2) The address, including county name, year of purchase
and purchase price for Mr. Johnson's residence.
3) Mr. Johnson's income for 2002, 2003, 2004, and 2005
year-to-date.
4) For the last 12 months (June 2004-June 2005), an
identification of any assets (including, but not limited to
automobiles) with a value of over $1,000 transferred, sold, or
conveyed by Mr. Johnson to any other person or entity.
5) A complete listing of Mr. Johnson’s current assets and
liabilities.
From Mr. Ware:
FBF intends to seek the following documents:
1) Federal and state tax returns, including, but not
limited to, all schedules for tax years 2002, 2003, and 2004.
2) All K-1s, W-2s, or other similar documents showing
compensation paid to Mr. Ware during the years 2002, 2003, and
2004.
3) All tax returns filed by T. L. Ware Bottling Company,
Inc. for tax years 2002, 2003 and 2004.
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4) For the time period from January 1, 2002 to present,
all financial statements showing assets and/or liabilities of
Tony L. Ware and/or T. L. Ware Bottling Company, Inc.
5) For the last 12 months (June 2004 through June 2005),
statements of account for accounts at any financial institution
in which Mr. Ware maintained any interest (individual, joint or
otherwise).
6) Documents sufficient to identify with particularity
Mr. Ware's assets and alleged current liabilities.
FBF intends to seek the following information from Mr.
Ware:
1) The address of Plaintiff's current residence and the
amount of funds paid by Plaintiff to reside at such residence.
2) All current sources of income, including unemployment
compensation.
3) All income earned or received in 2005.
4) For the last 12 months (June 2004-June 2005), all
sources of income.
5) For the last 12 months (June 2004-June 2005), an
identification of any assets (including, but not limited to
automobiles) with a value of over $1,000 transferred, sold, or
conveyed by Mr. Ware to any other person or entity.
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6) A complete listing of Mr. Johnson’s current assets and
liabilities.
Conclusion
The Court should award the strongest available sanctions,
including monetary sanctions, against Plaintiffs and their
counsel. Prior to making the sanctions award, the Court should
allow FBF to serve written discovery and, if necessary, take the
depositions of Plaintiffs and their counsel regarding financial
condition.
This 11th day of July, 2005.
Respectfully submitted,
PARKER, HUDSON, RAINER & DOBBS LLP
By: s/ Nancy H. Baughan
William J. Holley, II
Georgia Bar No. 362310
Nancy H. Baughan
Georgia Bar No. 042575
Michael D. Grider
Georgia Bar No. 310473
1500 Marquis Two Tower
285 Peachtree Center Avenue, N.E.
Atlanta, Georgia 30303
(404)523-5300 (telephone)
(404)420-5549 (facsimile) Attorneys for FleetBoston
Financial Corporation
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CERTIFICATE OF FONT AND FONT SIZE
I hereby certify that the within and foregoing DEFENDANT’S
REPLY TO PLAINTIFFS’ RESPONSES TO ORDER TO SHOW CAUSE AND
DEFENDANT'S REQUEST TO CONDUCT DISCOVERY was typed using font:
Courier New and font size: 12, pursuant to Local Rule 5.1.
This 11th day of July, 2005.
s/ Nancy H. Baughan
Nancy H. Baughan
Case 1:05-cv-00426-MHS Document 30 Filed 07/11/05 Page 8 of 9
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the
within and foregoing DEFENDANT’S REPLY TO PLAINTIFFS’ RESPONSES
TO ORDER TO SHOW CAUSE AND DEFENDANT'S REQUEST TO CONDUCT
DISCOVERY upon all parties to this matter by causing a true and
correct copy of the same to be deposited in the United State
Mail, proper postage pre-paid, addressed as follows:
Michael R. Johnson, Sr.
Johnson & Associates, P.C.
340 West Peachtree Street, N.E.
Suite 200
Atlanta, Georgia 30308
Dr. Tony L. Ware, PhD, JD
Post Office Box 150524 - Dept. 0227
Atlanta, Georgia 30315
and with the Clerk of Court using the CM/ECF system which
automatically sent e-mail notification of such filing to the
following attorney of record, who is a registered participant in
the Court’s electronic notice and filing system:
Attorney for Plaintiff is not a registered
participant in the Court's electronic
notice and filing system.
This 11th day of July, 2005.
s/ Nancy H. Baughan
Nancy H. Baughan
ATLIM_412604_1.DOC
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