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Kryder v. Estate of Rogers

United States District Court, M.D. Tennessee, Columbia Division

June 12, 2018

PATRICIA PORTER KRYDER, Plaintiff,
v.
ESTATE OF JAMES KEMMLER ROGERS, JENNIFER ROGERS-ETCHEVERRY, Defendants. JENNIFER ROGERS-ETCHEVERRY, as administrator for the ESTATE OF JAMES KEMMLER ROGERS, Counter-Plaintiff,
v.
PATRICIA PORTER KRYDER, Counter-Defendant.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Notwithstanding this Court's best efforts to resolve the matter once and for all, the seemingly endless saga of the $100, 000 Promissory Note continues.

         On February 20, 2018, this Court entered an Order that, in pertinent part, reads:

The unopposed Motion for Entry of Order of Voluntary Dismissal of Cause of Action for Unjust Enrichment in Second Amended Counterclaim (Doc. No. 194) filed by Jennifer Rogers-Etcheverry is hereby GRANTED, and that claim is hereby DISMISSED WITH PREJUDICE.
With that ruling, and in light of this Court's November 2, 2017 Order (Doc. No. 178) granting summary judgment on Rogers-Etcheverry's breach of contract claim and request for an equitable lien as set forth in Counts I and III of the Counterclaim, the Clerk of the Court SHALL ENTER JUDGMENT in favor of Jennifer Rogers-Etcheverry and against Patricia Porter Kryder.
Finally, and as stated in this Court's prior Order, a ruling on Rogers-Etcheverry's request for reasonable attorney's fees, costs and expenses is DEFERRED until the time for filing an appeal has run or, if an appeal is taken, the mandate has issued, at which time the matter will be referred to the Magistrate Judge for a Report and Recommendation.

(Doc. No. 196 at 1-2). In accordance with that Order, the Clerk of the Court entered a final judgment on February 22, 2018, that reads:

Pursuant to and as stated in the Order of the Court (Docket Entry No. 196), JUDGMENT IS HEREBY ENTERED in favor of Jennifer Rogers-Etcheverry and against Patricia Porter Kryder, for purposes of Rule 58(a) and/or Rule 79(a) of the Federal Rules of Civil Procedure.

(Doc. No. 197 at 1). That same day, Kryder's lawyer, John A. Beam, III of Equitas Alliance, PLLC, filed a Motion to Withdraw (Doc. No. 198) as Kryder's counsel of record.

         Despite being the beneficiary of the Court's ruling, Rogers-Etcheverry filed a Motion to Alter or Amend (Doc. No. 200). Thereafter, motions for extensions of time to respond were filed by counsel (Doc. No. 203), and by Kryder acting pro se (Doc. No. 203).

         On March 21, 2008, new counsel entered notices of appearance on behalf of Kryder (Doc. Nos. 204-207). Two days later, and before any of the pending Motions had been ruled on, Kryder filed a Notice of Appeal (Doc. No. 208). Because the Notice of Appeal was premature, the Sixth Circuit issued a Notice (Doc. No. 210) on March 28, 2018 holding the appeal in abeyance until after this Court's ruling on the pending Motion to Alter or Amend.

         By way of this Memorandum Opinion, the Court addresses that Motion. First, however, the Court turns to the Motion to Withdraw because it is an ancillary motion, and remains within the jurisdiction of this Court, notwithstanding the filing of the Notice of Appeal. See Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Nat. Res., 71 F.3d 1197, 1203 (6th Cir. 1995) (noting that it is “settled law that filing a notice of appeal with the district court divests the district court of jurisdiction to act in a case, except on remedial matters unrelated to the merits of the appeal”); United States v. Williams, No. 05-3293, 2006 WL 3203748, at *6 (6th Cir. Nov. 6, 2006) (same).[1]

         I. Motion to Withdraw

         Beam, on behalf of himself and his law firm, moves to withdraw his representation of Kryder on the ground that she has sued him in state court for legal malpractice in relation to this case. Although Local Rule 83.01 requires fourteen days notice to the client prior to filing such a Motion, Beam requests that he be excused from that requirement, and indicates that he duly notified Kryder of his intent to withdraw at the time he filed his Motion. In response, Rogers-Etcheverry claims that she intends to file a Rule 11 Motion against Beam and other counsel who represented Kryder in this action, and therefore requests that, should withdrawal be allowed, the Court retain jurisdiction over Kryder's former lawyer for purposes of any Rule 11 Motion.

         A lawyer may not “escape [Rule 11] sanctions for misconduct simply by withdrawing from a case before opposing counsel applies for sanctions.” In re Itel Sec. Litig., 791 F.2d 672, 675 (9th Cir. 1986); Logicom Inclusive, Inc. v. W.P. Stewart & Co., No. 04CIV604(CSHDFE), 2008 WL 1777855, at *2 (S.D.N.Y. Apr. 16, 2008) (stating that “withdrawal from the case does not insulate” counsel from Rule 11 sanctions “for pre-withdrawal litigation conduct”). This is because “[t]he signing requirement in Rule 11 makes clear that any attorney who, at any time, certified to the court that a pleading complies with Rule 11 is subject to the rule, even if the attorney later withdraws from the case.” Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir. 2005).

         Because Beam has been sued by his client, the Court will excuse compliance with Local Rule 83.01, and the Motion to Withdraw will be granted. This ruling, however, does not absolve counsel of responsibility for any Rule 11 Motion filed by Rogers-Etcheverry, and the ...


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