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United States District Court, S.D. New York

October 12, 2004.


The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge


1. On July 20, 2004, Mr. O'Donnell and his law firm made a motion (Docket Item #73) for an order permitting them to withdraw as attorneys for plaintiff ("Tecnimed") and plaintiff's president Paulo Werlang. The affidavit of service showed that the law firm served a copy on Tecnimed "Attn: Paulo Werlang, President."

2. On July 30, 2004, defendant ("GEMS-IT") served a memorandum in conditional opposition (Docket Item #86). At pages 11-12, it correctly warned Tecnimed that:

A corporation cannot appear pro se in either federal or New York State courts, Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568 (2d Cir. 2000); N.Y.C.P.L.R. 321(a); Hilton Apothecary, Inc. v. State, 89 N.Y.2d 1024, 657 N.Y.S.2d 595, 679 N.E.2d 1075 (1997), and any purported pro se appearance by Tecnimed would, therefore, be a nullity.
  3. At the end of my Memorandum and Order dated August 12, 2004, I said:


. . . I have not received any papers from Tecnimed or Mr. Werlang in response to this motion. If they wish to replace O'Donnell & Fox, P.C. with a different attorney, they may signify this at any time by causing an attorney admitted to the bar of the Southern District of New York to serve and file a Notice of Appearance for both Tecnimed and Mr. Werlang. Whether or not such a Notice of Appearance is filed, I direct Tecnimed and Mr. Werlang to send me — no earlier than September 7 and no later than September 30, 2004 — an affidavit in response to the motion dated July 20, 2004 (Docket Item #73). This affidavit must tell me (a) whether Tecnimed and Mr. Werlang want me to permit O'Donnell & Fox, P.C. to withdraw as their attorneys, (b) whether they wish to take a second appeal to the Court of Appeals, (c) if so, whether they have filed a Notice of Appeal (the deadline is September 13), (d) what efforts they have made to pay O'Donnell & Fox, P.C. or any other law firm a retainer to prosecute such an appeal, (e) the dates and amounts of all bills received from O'Donnell & Fox, P.C., and (f) the dates and amounts of all payments made by them to O'Donnell & Fox, P.C. After receiving this affidavit, I will be in a better position to make a decision pursuant to Local Civil Rule 1.4. . . .
  4. Despite my directive, Tecnimed and Mr. Werlang have not sent me any affidavit or response of any kind.

  5. Meanwhile, Mr. O'Donnell has continued to be a zealous advocate for Tecnimed and Mr. Werlang. On August 26, 2004, he served a Notice of Motion (Docket Item #92). It asks me to "alter or amend the Amended Judgment of Civil Contempt [entered on August 12, 2004] to delete the imposition of sanctions against Werlang in his individual capacity and to make Tecnimed solely responsible. . . ." In an annexed affidavit, at ¶ 8 and ¶ 19, Mr. O'Donnell says: "the Court apparently overlooked the Declaration submitted [belatedly, on August 9] by Tecnimed's attorney in the Brazilian action (Dr. Angelo Santos Coelho). . . . Dr. Coelho has continuously advised Tecnimed (and Mr. Werlang) not to discontinue the Brazilian action." I did not overlook Dr. Coelho's declaration. He has continuously advised them to defy the essential portions of my order, even after those were upheld by the Second Circuit. Reliance on advice of counsel is no defense to a contempt citation. United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992). Accordingly, I deny the motion in Docket Item #92.

  6. I turn now to the motion in Docket Item #73, in which O'Donnell & Fox, P.C. seeks permission to withdraw from its representation of Tecnimed and Mr. Werlang. Pursuant to our Court's Local Civil Rule 1.4, I find that Mr. O'Donnell's affidavit shows satisfactory reasons for withdrawal. I again note that Tecnimed and Mr. Werlang failed to respond to the motion, despite my August 12 directive. GEMS-IT's response to the motion said:

GEMS-IT . . . has no objection to O'Donnell & Fox's withdrawal, if, but only if, it is effective upon the entry of substitute counsel. Otherwise, GEMS-IT will have no other Tecnimed counsel in the United States (and in New York) upon which to serve notice, should GEMS-IT be required to return to this Court to enforce further the contempt judgments and to obtain future awards. . . .
(Docket Item #86, p. 2.) However, I hereby direct that GEMS-IT may hereafter serve any notice upon Tecnimed and Mr. Werlang by mail (and also by e-mail, provided that Mr. O'Donnell supplies GEMS-IT with the e-mail address). It is my understanding that the current mailing address is the one shown on Docket Item #73.

  7. Accordingly, I grant the motion in Docket Item #73 and I permit O'Donnell & Fox, P.C. to withdraw from its representation of Tecnimed and Mr. Werlang.


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