United States District Court, S.D. New York
October 12, 2004.
PARAMEDICS ELECTROMEDICINA COMERCIAL LTDA., Plaintiff,
GE MEDICAL SYSTEMS INFORMATION TECHNOLOGIES, INC., Defendant.
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
OPINION AND ORDER
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
3. At the end of my Memorandum and Order dated August 12, 2004,
. . . 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
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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