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Kochisarli v. Tenoso

March 30, 2007

ZEKI KOCHISARLI, PLAINTIFF,
v.
HAROLD J. TENOSO A/K/A HAL, ALAN MORRISON HAY, FRANCES GRIFFIN, FMB HOLDINGS LLC, DEFENDANTS.
FRANCES GRIFFIN AND FMB HOLDINGS LLC, COUNTER-CLAIMANTS,
v.
ZEKI KOCHISARLI, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

INTRODUCTION

Presently before this Court is a motion by Dean Browning Webb, Esq. for reconsideration of this Court's Memorandum and Order, dated March 21, 2006, insofar as it granted Plaintiff's motion for Rule 11 sanctions against Mr. Webb. Also before the Court are the submissions of the parties pursuant to the aforementioned Memorandum and Order regarding the amount of the sanctions.

BACKGROUND

The factual background of this case has been previously set forth in the multiple Memoranda and Orders entered herein and will not be repeated except to the extent necessary for the determination of the matters at hand.

Plaintiff commenced this action on June 27, 2002. Defendants/Counter-claimants Hay, Griffin and FMB Holdings LLC ("Counter-claimants") filed a counterclaim on December 6, 2002. On March 11, 2004, this Court held the counterclaims to be "neither short nor plain," and in some places, "indecipherable," such that "the administration of this case - including the disposition of likely pretrial/trial motions directed at the counterclaims - is almost surely destined to be unnecessarily complex, producing concomitant delays." The Court instructed Counter-claimants to reformat and resubmit their pleadings, along with a RICO statement. An Amended Counterclaim (ACC) was submitted. On March 24, 2005, the Court dismissed, without prejudice, Counter-claimants' ACC because it was again "indecipherable." The Court detailed precisely how Counter-claimants should endeavor to frame their Second Amended Counterclaims ("SACC"), and explicitly stated that "any further failure to abide by this Court's orders, instructions, and deadlines shall result in the dismissal of any and all of counterclaims by Hay, Griffin, and/or FMB Holdings, LLC with prejudice." (March 24, 2005 Order at 7.) On May 13, 2005, Counter-claimants submitted their Second Amended Counterclaims ("SACC").

In its March 21, 2006 Memorandum & Order, this Court addressed Counter-claimants' third attempt to submit an adequate set of counterclaims and once again found them deficient:

In response to Plaintiff's motion [to dismiss the counterclaims], Counter-claimants submit a brief of pure rhetoric. Instead of addressing Plaintiff's arguments regarding the counterclaims, Counter-claimants instead declare, "The mise en scene of these proceedings emanates from a background of Machiavellian intrigue, cunning deception, and sensational double entendre. Essentially, it is a text book example of myopic greed and clandestine chicanery designed and intended to conceal from respondents' knowledge a pre-existing business relationship between the movant and others . . . ." (See Def. FMB's Opp'n to Mot. to Dismiss at 1-2.) Counter-claimants then cite to a vast array of cases and treatises, but barely address the content of their counterclaims or Plaintiff's arguments in support of his motion to dismiss. Because the relevance of Counter-claimants' arguments is an open question, it is difficult to have a serious discussion of Counter-claimants' legal arguments here. . . .With the SACC, Counter-claimants have again failed to address the Court's concerns. In the March 24 Order, the Court dismissed the AC without prejudice but issued an exhaustive list of directions, clearly articulating to Counter-claimants how a subsequent submission of counterclaims could pass muster. Counter-claimants entirely ignored the Court's instruction.

The SACC is, in fact, more difficult to parse than the AC. Though the formatting is new and easier to read, the content is essentially identical, with one major change: the deletion of nearly forty paragraphs. The Court did not criticize Counter-claimants' prior attempts as being too long. Rather, the court was critical of counter-claimants for raising broad legal claims without any bases in the factual allegations. That failing is unchanged.

The Court went on to detail some of the failings. For example, the SACC "alleges twenty two RICO 'persons' but provides no biographical information as to any of these individuals . . . . Individuals appear in the SACC and disappear almost as quickly." The Court then stated,

Another omission from the SACC is the required RICO statement. The Court specifically ordered Counter-claimants to provide a RICO statement along with their SACC. . . . Counter-claimants did not do so. As a result, the third set of counterclaims lack the very thing that the March 24 Order demanded.

The Court then concluded its discussion of the motion to dismiss as follows:

At the close of the March 24 Order, the Court warned Counter-claimants that "any further failure to abide by this Court's orders, instructions, and deadlines shall result in the dismissal of any and all of counterclaims by [Counter-claimants] with prejudice. . . ." That time has come. Counter-claimants have completely disregarded this Court's instructions and have submitted, for a third time, a completely unacceptable set of counterclaims. The SACC remains indecipherable and ...


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