IN THE SUPREME COURT OF FLORIDA
CASE NO. SC14-1730
IN RE: STANDING COMMITTEE ON THE UNLICENSED PRACTICE OF LAW'S PROPOSED ADVISORY OPINION #2014-3, SCHARRER V.
FUNDAMENTAL ADMINISTRATIVE SERVICES
APPENDIX TO OBJECTIONS AND SUPPORTING BRIEF IN OPPOSITION TO UNAUTHORIZED PRACTICE OF LAW
COMMITTEE PROPOSED FORMAL ADVISORY OPINION #2014-3 VOLUME 6 of 6
KATHERINE E. GIDDINGS, B.C.S. (949396) KRISTEN M. FIORE (25766) [email protected] [email protected] [email protected] [email protected] Akerman LLP 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: (850) 224-9634 Telecopier: (850) 222-0103
JOSEPH A. CORSMEIER (492582) [email protected] Law Office of Joseph A. Corsmeier PA 2454 N. McMullen Booth Road Suite 431 Clearwater, FL 33759-1339 Telephone: (727) 799-1688 Telecopier: (727) 799-1670
GERALD B. COPE, JR. (251364) [email protected] [email protected] Akerman LLP One SE Third Avenue, Suite 2500 Miami, Florida 33131-1714 Telephone: (305) 374-5600 Telecopier: (305) 374-5095
CHRISTOPHER B. HOPKINS (116122) [email protected] [email protected] Akerman LLP 777 S. Flagler Dr., 11th Floor, West Tower West Palm Beach, FL 33401 Telephone: (561) 671-3668 Telecopier: (561) 659-6313
Attorneys for Fundamental Administrative Services, LLC
(29641890;1)
Filing # 18836375 Electronically Filed 09/30/2014 03:30:03 PM
RECEIVED, 9/30/2014 15:34:59, John A. Tomasino, Clerk, Supreme Court
PETER A. CONTRERAS (55556) [email protected] Brunner Quinn 35 N. Fourth Street, Suite 200 Columbus, Ohio 43215-3641 Telephone: (614) 241-5550 Telecopier: (614) 241-5551
Attorney for Christine Zack
(29641890;1)
INDEX TO APPENDIX TO OBJECTIONS AND SUPPORTING BRIEF IN OPPOSITION TO UNAUTHORIZED PRACTICE OF LAW COMMITTEE
PROPOSED FORMAL ADVISORY OPINION #2014-3
Affidavit of Timothy P. Chinaris Tab 1
Federal District Court Order Dismissing UPL Civil Action Tab 2
Proposed Advisory Opinion Tab 3
Transcript of UPL Standing Committee Public Hearing Held on 5/2/14 (Volumes 1 and 2) Tab 4
List of Pending Cases Between the Parties Tab 5
All Writs Petition Tab 6
Florida Supreme Court Order Dismissing All Writs Petition Tab 7
Complaint filed in the Second Malpractice Action Tab 8
Affidavit of Alan Grochal Tab 9
Affidavit of Maria Ellena Chavez-Ruark Tab 10
Declaration of Christine Zack Tab 11
Order Appointing Receiver Tab 12
Quintairos Firm's Motion to Withdraw as Attorney Tab 13
Order Granting Quintairos Firm's Motion to Withdraw as Attorney Tab 14
Trustee's and THMI's Petition for Formal Advisory Opinion Concerning the Unauthorized Practice of Law Tab 15
Letter from Trustee and THMI with Questions Presented to the UPL Committee dated 11/20/13 Tab 16
{29641890;1}
Letter from Trustee and THMI with Amended Petition for Formal Advisory Opinion Concerning the Unauthorized Practice of law dated 12/5/13 Tab 17
Florida Bar Letter Setting January 24, 2014 Hearing Tab 18
Transcript of January 24, 2014 Hearing Tab 19
Order Dismissing First Malpractice Action With Prejudice Tab 20
Amended Motion to Modify Retention Terms With Respect to the Trustee's Special Counsel, Steven M. Berman, Esq. and Shumaker Loop and Kendrick, LLP Tab 21
Order Granting Amended Motion to Modify Retention Terms With Respect to the Trustee's Special Counsel, Steven M. Berman, Esq. and Shumaker Loop and Kendrick, LLP Tab 22
FAS's Response to Petition for Formal Advisory Opinion Concerning the Unauthorized Practice of Law Tab 23
{29641890;1}
45
that this court has ruled that the specified conduct
at issue constitutes the unauthorized practice of
law. Stated another way, the claimant must allege as
an essential element of any cause of action premised
on the unauthorized practice of law that this court
has ruled the activities are the unauthorized
practice of law."
so in other words, you have to have an
allegation that this specific activity was the
unauthorized practice of law. In Goldberg, it was
the preparation of these specific mortgage documents
was the unlicensed practice of law.
The court goes on to kind of talk about, well,
how are you going to -- how is this going to come
about? And I'm reading now on Page at the bottom
of 100 of your agenda: "We recognize that
Rule 10-9.1 of the rules regulating the Florida Bar
states that no opinion shall be rendered with respect
to any case or controversy pending in any court or
Tribunal in this jurisdiction which prohibits the
Florida Bar standing committee on UPL from proceeding
in the event the action is stayed pending a
determination by this court."
So in other words, the court is saying that you
have to have a determination that the case is UPL --
1
2
3
4
S
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
46
1
that, you know, this activity is UPS in order to
2
bring your underlying lawsuit. And in order to have
3
that determination, how are you going to do it?
4
Because the rule says you can't if there is a pending
5
case. so you can never get your determination
6
because your case is pending and you can't have an
7
advisory opinion because you have a pending case.
8
so the Court said that, "We hereby suspend the
9
rule and the circumstances described herein," which
10
would mean you need to get that ruling from the
11
Court, "and direct the Florida Bar to propose rule
12
changes according to this opinion."
13
so that's where the 10-9.1 rule change came from
14
was because the Court directed us to do it. so in
15
other words, under Goldberg, you can have a pending
16
case and you can have an advisory opinion if there is
17
a pending case because there is no other way to get
18
the question to the Court.
19
so they kind of recognize that under certain
20
circumstances you can suspend it, the case can be
21
stayed or voluntarily or dismissed without -- the
22
court said dismissed without prejudice, they talk
23
about stayed -- that the case can still be ongoing
24
and you can have your determination. You can have
25
your advisory opinion.
47
1
so that's what Goldberg says. so the question
2
is, does this -- does this request for advisory
3
opinion fall under Goldberg? Is it something where
4 -- I mean, Judge Moody obviously felt there was an A
5
case. And I think if you look in the materials that
6
were provided that the petitioner cited several cases
7
and you tie them all together and, in the
8
petitioner's opinion, they showed unlicensed
9
practice. And Judge Moody said, well, you need to
10
have the one case, so let's go ahead and dismiss this
11
so you can now get that determination.
12
Anybody have any questions?
13
Now, here you do have the other pending cases.
14
Nobody is arguing that you don't. It is the same
15
facts, it's the same -- to an extent, the same
16
parties to an extent, but totally different legal
17
theory.
18
And I understand that to prove malpractice you
19
have to prove the practice of law. To show
20
unlicensed practice, that's really a different issue.
21
It's whether that activity was authorized or not.
22
You know, you kind of can -- whether it's the
23
practice of law and whether that activity is
24
authorized. so it's really a two-part determination,
25
not just a one-part determination.
48
1
MR. DICKERSON: Lori, Dwayne Dickerson. I'm
2
from Ft. Lauderdale, attorney. So am I correct in
3
that the only case that raised UPL issues is now
4
dismissed?
5
MS. HOLCOMB: Without prejudice.
6
MR. DICKERSON: Without prejudice?
7
MS. HOLCOMB: Correct.
8
MR. DICKERSON: And there are other pending
9
cases, but they do not raise UPL issues specifically.
10
of course, the defendants would argue that they do in
11
theory by using the same arguments. But the only one
12
that does deal specifically with UPL is now dismissed
13
without prejudice?
14
MS. HOLCOMB: Correct. And I believe that is
15
what Mr. Berman said as well, correct.
16
MR. DICKERSON: Okay.
17
MS. BUIE: Any other questions? Anything that
18
needs to be clarified?
19
MR. LEBIO: Yes.
20
MS. BUIE: Okay.
21
MR. LEBIO: Concisely as possible, what is the
22
challenge here for this committee?
23
MS. HOLCOMB: The committee needs to decide
24
whether -- how did you write the question?
25
MS. BUIE: Whether the committee can proceed
49
1
with an advisory opinion with the other pending
2
cases.
3
Ms. HOLCOMB: In other words, whether this is a
4
Goldberg question. Normally, as I said in the
5
beginning, when this committee is faced with a
6
request for formal advisory opinion, the first
7
determination we make is whether we want to have a
8
hearing.
9
For example, if we get a question, is it the
10
unlicensed practice of law to use the title
11
"attorney" when you're not licensed? you would go
12
through a debate as to whether you want to have a
13
public hearing and issue an opinion.
14
If it's a Goldberg case, that discretion is
15
taken away. The court says we shall do that. so if,
16
in fact, this does fall within Goldberg, then we have
17
to have the public hearing and we have to issue the
18
opinion.
19
If it doesn't fall within Goldberg, then
20
somebody else has to -- you know, it's out of this
21
committee's hands at this point. It goes away. And
22
whether it comes back or not is a question for
23
another day.
24
ms. BUIE: But I think the main issue is
25
regarding the pending cases and whether or not the
50
pending cases would prevent it from falling under
Goldberg as far as to have a formal advisory
opinion -- I mean a public hearing.
MR. ABBOTT: I guess my concern is that if this
was, say, a party that had a foreclosure or something
else, that's not a case or controversy because really
it's a separate set of facts. It might be the same
parties involved.
oh, again, colin Abbott, attorney.
But when you've got the same fact pattern, you
know, I guess I'm old school, but I'm sort of saying
that this -- you know, I'm already showing my cards
which way I feel it is. But to me, you know, there
is nothing that prevents the parties from bringing
this forward later if there's no cases left that
involved the same fact pattern.
And, you know, they can either bring another
Goldberg request or they can do a direct request and
have our investigators go in, question them, and find
out. And the local committee will take the power to
do the evidence review and come back with a decision,
and then that would come up to us.
But, you know, my idea is that, you know, I
believe that there is cases and controversy. I know
we're not at the vote and haven't even called the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
51
question yet, but that's where I'm leaning.
MS. BUIE: But we're not determining the facts
of the case, though.
MR. ABBOTT: No, no. But I don't think that --
the facts are irrelevant at this stage. It's more is
it ripe or not? And I don't think it's ripe.
MS. BUIE: Okay. Martin?
MR. SPERRY: What I don't know -- I guess, Lori,
you're the best person to answer this. When
reference is made to a pending case, an ongoing case,
does the ongoing case have to raise issues of UPL or
can other cases where they're talking about the
malpractice, do they meet the requirement of a
pending case?
In this situation, it sounds as though there is
only one case that raised UPL. And I haven't formed
any opinion. I'm just curious whether or not the
Goldberg threshold is met if other cases have similar
facts but don't raise the issue of UPL. Is that
enough to prevent us from saying this falls under
Goldberg?
MS. HOLCOMB: That's the ultimate question.
That's what this committee needs to decide. Let's
say that there was only the one case, the UPL case,
and then FAS files a liable action against the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
52
1
bankruptcy trustee alleging the same facts because
2
they brought a UPL case against them. Is that -- you
3
know, so can they do that to then take it away from
4
Goldberg? I mean, that's the -- your question is the
5
ultimate question.
6
MR. SYGER: Exactly. How are you going to
7
construe this rule? Because if we read it literally,
8
it suggests that because there is a pending case,
9
that we're outside of the ambit of Goldberg. And
10
then the rule doesn't say the case that's pending has
11
to be on UPL only.
12
MS. HOLCOMB: But there is "however." There is
13
"however" in the rule. It says "A, however, B."
14
There is "however." There is that one little word,
15
"however."
16
David?
17
MR. NORRIS: David Norris. I was going to ask
18
that question. so 10-9.1(c) is basically what we
19
have to review and use to determine. so you have the
20
first part, first sentence, "No opinion shall be
21
rendered with respect to any case or controversy
22
pending."
23
So I guess arguably that could mean any type of
24
case. so it gets you into the other cases
25
potentially, although you could argue that we're only
53
1
talking about a pending case dealing with UPL.
2
But giving that argument away, going with what
3
Lori just said, the next sentence says "however." So
4
to me, that's saying, however, we can do it and we
5
shall do it in the Goldberg situation. so to me, it
6
sounds like that second sentence is saying we have to
7
do it.
8
MS. HOLCOMB: To give a little background, the
9
reason that that first sentence is there is because
10
they didn't want people who were in litigation to
11
jump over and skip the trial, skip the lower
12
Appellate Court and go straight to the Supremes.
13
And actually, the first case that we had for a
14
formal advisory opinion, which, believe it or not,
15
started before my time, was a case that was pending
16
in court. And they had to dismiss that case in order
17
to proceed with the formal advisory opinion process,
18
because you don't want to say, okay, we're not going
19
to have a trial, we're not going to have an appeal,
20
we're just going to go straight to the supreme. And
21
then there is the Goldberg language.
22
MS. BUIE: We're going to take a five-minute
23
break. The president of the Florida Bar would like
24
to address the committee.
25
(A recess was had.)
54
1
MS. BUIE: I believe we're back on the record to
2
continue our deliberation.
3
MS. HOLCOMB: Yes, David?
4
MR. NORRIS: David Norris. I have a question.
5
Like I said before, I think the second sentence is
6
the key part of the rule, but there are two parts to
7
that sentence, reading it over and over again as I'm
8
doing. The second part is, "The suit has been stayed
9
or voluntarily dismissed without prejudice."
10
Is that a question we have to answer, whether
11
that's happened? or is that determined or agreed to?
12
MS. HOLCOMB: It depends on who you talk to.
13
The case was dismissed without prejudice. It wasn't
14
voluntarily dismissed. I think that that's poor
15
wording in the rule, frankly, because what we were
16
trying to do was follow Goldberg. And I think that
17
the rule is incorrect. I think that that's too much
18
of a technical reason.
19
I think ultimately you probably need to decide
20
based on the other issue, because I think that if you
21
say, well, it wasn't voluntarily dismissed, then they
22
just voluntarily dismiss it and we're back here again
23
in a couple of months. I just think that's a
24
technicality, and I think the rule is incorrect the
25
way it's written.
55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. NORRIS: so we don't need to bother with
that?
MS. HOLCOMB: That's up to you. Ultimately,
it's the committee's decision. But I think the other
issue is the real -- is the harder issue.
MS. BUIE: Just pending cases.
Yes?
MR. ATHAVALE: I think what we --
MS. BUIE: And your name? State your name for
us.
MR. ATHAVALE: Manny Athavale. I think what we
non-attorneys are struggling with is, is malpractice
suit the same as UPL suit?
MS. HOLCOMB: No. You know, I mean, in order to
commit malpractice, legal malpractice, you have to
have practiced law. But that's -- but what
malpractice is is to say that you did it and you did
it poorly, and the question really is whether this
individual practiced law poorly in a malpractice
matter.
In unlicensed practice, it's whether they've
practiced law in a way that they were not authorized
to practice. So the practice-of-law component is the
same, but the ultimate issue, whether it's unlicensed
practice or whether it was done bad, are different.
56
1
MR. ATHAVALE: So there are pieces that are
2
different in the proving of UPL versus proving of
3
malpractice?
4
MS. HOLCOMB: Correct.
5
MR. ATHAVALE: So it is unique. It is only a
6
single case in that sense.
7
MS. HOLCOMB: That's the question. From a UPL
8
standpoint, it doesn't matter if they did it right,
9
frankly. You know, in a malpractice, the question is
10
did you do it in a -- I don't want to get too legal
11
or too technical, but did you do it in a negligent or
12
a poor or bad manner?
13
Unlicensed practice, technically, you could get
14
someone a million dollar verdict if you're not a
15
lawyer and you still have an unlicensed-practice
16
issue. so they're kind of two different things.
17
MS. BUIE: Joel?
18
MR. FRITTON: Joel, attorney. I think you're
19
absolutely right. You don't get to the second part
20
of this rule because I.think it stops at the first
21
part. UPL and malpractice are two different things.
22
Just because you have malpractice doesn't mean you
23
have unlicensed practice. I think that's what you
24
were asking. They're two different causes of action.
25
And while there's other cases these same parties
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
57
are involved, I think it's more semantics. The
titles and all that that were brought up, it really
doesn't matter because none of those cases involve
the unlicensed practice of law. The only one that
did has been dismissed. I think that's where the
analysis stops.
MS. BUIE: I'm sorry. Rosanna?
MS. SCHACHTELE: I have a question. Rosanna
schachtele. Would they be able to utilize an opinion
that we gave here in the other cases? Like if we did
do a formal advisory, would they be able to utilize
that?
MS. HOLCOMB: It depends on what it says. And
again, because it's not -- this committee won't be
determining facts. It would be if A, then -- you
know, if FAS did A, would that be UPL? If FAS did B,
would that be UPL?
So really, we're not determining the facts. And
without knowing what the opinion would say, it's kind
of difficult. Again, it's ultimately the supreme
Court. It doesn't really matter -- I hate to say it
that way, it doesn't matter what you say, but
ultimately, it doesn't really matter what you say
because the Court -- this is a vehicle -- this is a
procedure to get it before the supreme Court of
58
1
Florida. So this is how you can get it there.
2
Ultimately, that Court will decide.
3
MS. BUIE: Any other discussions or can I get a
4
motion?
5
MS. HOLCOMB: somebody has got to move
6
something.
7
MR. NORRIS: What's the question?
8
MS. BUIE: The question is whether or not we
9
should -- if it falls under Goldberg. Well, whether
10
or not we should issue a formal advisory opinion --
11
hold a public hearing to issue a formal advisory
12
opinion.
13
MR. SPERRY: I move that we hold a public
14
hearing to determine the advisory opinion.
15
MR. FRITTON: I second.
16
MR. NORRIS: I'll second.
17
MS. BUIE: so the motion has been moved and
18
seconded. Now, do we have any further discussion
19
regarding whether or not to hold the public hearing?
20
With no further --
21
MS. HOLCOMB: Do we want to do hands?
22
Ms. BUIE: Yeah, we're going to do hands.
23
By a show of hands, can I get how many are in
24
favor of the motion, all those in favor of holding a
25
public hearing on the issue?
59
1
MS. HOLCOMB: Raise your hand. Raise your hand
2
high because I can't see that well.
3
(Those in favor raised their hands.)
4
MS. HOLCOMB: I got 15. Did you get 15?
5
MS. BUIE: All those opposed?
6
(Those opposed raised their hands.)
7
MS. BUIE: Any abstentions?
8
Motion carries. so we will be holding a public
9
hearing. And then the next question is, when will we
10
hold the public hearing?
11
MS. HOLCOMB: Right.
12
MS. BUIE: My suggestion for the public
13
hearing -- our next meeting is scheduled for June,
14
the end of June, which is also the time that we have
15
members going off the committee.
16
My suggestion would be to hold the public
17
hearing on a separate meeting date and time sometime
18
in March or April so that by June we can have the
19
opinion so it can be reviewed by all those who are
20
able to hear and make a decision whether or not we
21
should hold a public hearing.
22
MS. HOLCOMB: Now, it's my understanding that
23
Ms. tack is going to be having some surgery, so
24
she'll be unavailable. our main concern is that we
25
have to publish 30 days ° notice. So we can work on
60
1
the date, but -- so it will be sometime before June,
2
but at least 45 days from now because we have to give
3
notice in the Bar News. So I can talk to you
4
about --
5
MR. CORSMEIER: Or if there is no objection, the
6
June meeting would be great because you get a good
7
crowd, like you have here, as opposed to having a
8
special meeting. But that's just my thought.
9
So if you could do June, I think we're still
10
going to run into problems with Ms. Zack. And there
11
is actually another individual that's going to appear
12
that is going to have -- has a medical condition that
13
they're going to have a procedure as well. I just
14
found out about that yesterday.
15
So it's up to you all as to what you want to do,
16
but I would ask on behalf of the respondent that we
17
have it at the June meeting.
18
MS. HOLCOMB: And I think the concern is that --
19
MS. BUIE: The members who are leaving.
20
MS. HOLCOMB: Right. Because June will be the
21
last meeting for this committee. And so then it
22
would be -- the next meeting will be in September,
23
and it would be a new committee that hadn't heard the
24
testimony that would be looking at the opinion.
25
MR. CORSMEIER: So the June is a transition
61
1
meeting, obviously.
2
MS. HOLCOMB: It's the --
3
MR. CORSMEIER: It would be the same committee.
4
MS. HOLCOMB: It's the last meeting of this
5
of this committee. Some members -- most members I
6
hope are going to stay, that you put in your
7
preference form to stay if you're eligible. But some
8
members will be leaving.
9
MR. CORSMEIER: That would be good fun in the
10
June meeting to have it at that hearing if you decide
11
to do that.
12
MS. HOLCOMB: Yeah, that's kind of up to the
13
Chair.
14
MS. BUIE: only because they would not have been
15
involved in this hearing, so...
16
MR. CORSMEIER: But it would be the last meeting
17
for everybody here.
18
MS. BUIE: Right.
19
MS. HOLCOMB: June would be the last meeting.
20
MR. CORSMEIER: Plus new ones coming on.
21
MS. HOLCOMB: Would be coming on in September.
22
MR. CORSMEIER: So that would be the last full
23
meeting of this committee.
24
MS. BUIE: So the people making the decision
25
regarding the formal advisory opinion would not be
62
1
the same ones who heard the testimony. So that would
2
be a little difficult, so that's why I suggested that
3
we have a mid meeting.
4
Ms. HOLCOMB: What happens is the committee will
5
hold a hearing. And then at that hearing the
6
committee will direct what the opinion should say.
7
Then the opinion will be drafted and be reviewed by
8
the committee at the next hearing -- at the next
9
meeting. So I think what the concern is that if we
10
hear it in June, that people who would be deciding on
11
the opinion wouldn't have been involved.
12
MR. CORSMEIER: I was on the Professional Ethics
13
Committee until I termed off. And that's unwieldy.
14
MS. HOLCOMB: Yeah.
15
MR. CORSMEIER: You all do a great job.
16
MS. HOLCOMB: So you understand.
17
MR. CORSMEIER: But what we would do is actually
18
have those members be eligible to participate in the
19
vote because of their prior service. But you all can
20
decide.
21
MS. HOLCOMB: No, that's not -- that's not
22
how -- because we have a certain number. It's a
23
different setup.
24
MR. CORSMEIER: I got it. Okay. Thank you.
25
MR. HOPKINS: If I could just briefly be heard
63
1
to give some specifics. Ms. zack has two herniations
2
to her lower back. They're looking at scheduling it
3
in the last week of March. If they have that
4
procedure, because it's the low back, it's one of
5
those things she can't even ride in a car.
6
The other issue I have -- and I don't know why
7
broken bones are all over the place, but her counsel,
8
Mr. Brunner, living outside of Florida, slipped and
9
fell on the ice. He has a broken leg.
10
one other thing and then I will sit down. The
11
issue we obviously presented was this two months of
12
depositions occurring between now and March. if
13
those get done and then we can do it at some later
14
point, everyone will have the evidence, everyone will
15
be healthy. Thank you.
16
MR. CORSMEIER: May I ask a question?
17
MS. BUIE: so we'll --
18
MR. CORSMEIER: I was just going to ask, this
19
was a preliminary matter. so this same committee
20
doesn't necessarily need to vote on the advisory
21
opinion, unless you think differently, Lori.
22
so maybe we could pass it -- because of the
23
issues with Ms. zack and Mr. Brunner, push pass it
24
because the committee that will be constituted will
25
be hearing the evidence and those of you that stay on
64
1
will hear it, but it's a different issue, it's not a
2
threshold issue. I'm just putting that out to you
3
for thought.
4
MS. HOLCOMB: I think it was the hearing, who
5
was at the hearing, versus who was here today.
6
MS. BUIE: That's my concern. Yeah, it's not
7
today. It's the hearing, the actual hearing. so
8
those who will hear it in June will not be the ones
9
to do the advisory.
10
MR. CORSMEIER: Or maybe in September. I'm just
11
throwing that out to you.
12
MS. BUIE: So we'll get back with you regarding
13
the public hearing. And we can take a five-minute
14
break and then we'll come back.
15
(The proceedings concluded at 11:25 a.m.)
16
17
18
19
20
21
22
23
24
25
LIS M CORMACK RMR
65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CERTIFICATE
STATE OF FLORIDA:
COUNTY OF ORANGE:
I, LISA MCCORMACK, RMR, certify that I was
authorized to and did stenographically report the
foregoing proceedings, and that the transcript is a
true and accurate record.
Dated this 27th day of January 2014.
TAB 20
Case 8:12-cv-01854-MSS-MAP Document 112 Filed 08/27/14 Page 1 of 3 PagelD 2395
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BETH ANN SCHARRER, as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc. and TRANS HEALTH MANAGEMENT, INC.,
Plaintiffs,
v. Case No: 8:12-cv-1854-T-35MAP
FUNDAMENTAL ADMINISTRATIVE SERVICES, LLC, CHRISTINE ZACK, TYDINGS & ROSENBERG, LLP, MARIA ELLENA CHAVEZ-RUARK, ALAN M. GROCHAL, individually and not as Receiver, QUINTAIROS PRIETO, WOOD & BOYER, PA, THOMAS A. VALDEZ, KEVIN W. RICHARDSON, and ALBERT J. FERRERA,
Defendants.
ORDER
THIS CAUSE comes before the Court for consideration of Plaintiff's Motion for
Stay as to Defendant Christine Zack, or, Alternatively, for Extension of Time to File
Amended Complaint. (Dkt. 110) On September 10, 2013, this Court dismissed Plaintiffs'
claims against Ms. Zack for lack of personal jurisdiction. (Dkt. 85) The Court gave
Plaintiffs three weeks from the date of that order to file an Amended Complaint as related
to any allegation that Ms. Zack served as legal counsel to Plaintiffs and owed them any
fiduciary duty. Plaintiffs were admonished that if they did not file an amended complaint
by the deadline, the claims against Ms. Zack would be dismissed. (See id.)
Case 8:12-cv-01854-MSS-MAP Document 112 Filed 08/27/14 Page 2 of 3 PagelD 2396
Plaintiffs did not file an amended complaint. Instead, they filed a Motion for
Reconsideration of the Order dismissing the claims against Ms. Zack and sought a 90
day extension of time to file an amended complaint while discovery proceeded in the
Bankruptcy Court. (Dkt. 95) On April 9. 2014, the Court denied Plaintiff's motion for
extension of time, due to the fact that the 90 days had long since run by that point. The
Court directed Plaintiffs to file an amended complaint by April 16, 2014. (Dkt. 107) The
Court put the Plaintiffs on notice that the claims against Ms. Zack would be dismissed
without prejudice if they failed to file an amended complaint. (Dkt. 109) The Court also
entered an Order staying all proceedings in the case, pending resolution of related
matters by the Bankruptcy Court. (Dkt. 108) The Court expressly stated "The single
exception to the stay is that part of the action related to Defendant Christine Zack. By
separate Order the Court has directed certain action by undertaken related to her." (Id.)
On April 16, 2014, in lieu of filing an amended complaint, Plaintiffs filed the instant
motion, requesting that the Stay entered as to all the proceedings in this matter be applied
to the deadline within which to file any amended pleading against Ms. Zack, or, in the
alternative, that they be granted an extension of time to file an amended complaint until
such time as discovery has been completed in the Bankruptcy case.
Nearly a year has passed since this Court's Order dismissing the claims against
Ms. Zack, and it is clear that Plaintiffs still cannot state any basis for a cause of action
against her. Accordingly, Plaintiffs' Motion for Stay as to Defendant Christine Zack, or,
Alternatively, for Extension of Time to File Amended Complaint (Dkt. 110) is DENIED.
2
Case 8:12-cv-01854-MSS-MAP Document 112 Filed 08/27/14 Page 3 of 3 PagelD 2397
Plaintiffs' claims against Defendant Christine Zack are DISMISSED with prejudice.
DONE and ORDERED in Tampa, Florida, this 27th day of August, 2014.
PA._ t&
UNIm KfcGA:T EN
ES DISTRICT JUDGE Copies furnished to: Counsel of Record Any Unrepresented Person
3
TAB 21
Case 8:11-bk-22258-MGW Doc 1362 Filed 02/26/14 Page 1 of 4
UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
In re: Case No: 8:11-bk-22258-MGW
Fundamental Long Term Care, Inc. Chapter 7
Debtor.
AMENDED MOTION TO MODIFY RETENTION TERMS WITH RESPECT TO THE TRUSTEE'S SPECIAL COUNSEL, STEVEN M. BERMAN, ESQ.
AND SHUMAKER LOOP AND KENDRICK, LLP'
Beth Ann Scharrer, as Chapter 7 Trustee (the "Trustee"), pursuant to 11 U.S.C. §
327, 328(a), 330 and Rule 2014 of the Federal Rules of Bankruptcy Procedure, moves the
Court to modify the terms of her retention of Steven M. Berman, Esq. and the law firm of
Shumaker, Loop & Kendrick, LLP as special counsel, and states:
1. On June 1, 2012, the Trustee filed her Application for Authority to
Employ Steven M. Berman, Esq. and Shumaker, Loop & Kendrick, LLP (collectively,
the "Firm") as special counsel, with the Firm being compensated at its hourly rates and
reimbursed for costs incurred (the "Application") (Doc. 158). The Application was
approved on June 5, 2012 (Doc. 165).
2. The Trustee selected the Firm because it has considerable experience in
bankruptcy-related matters and the Trustee believes the Firm is well qualified to represent
the Trustee in this case. Mr. Berman is Board Certified by the American Board of
Certification in both Business Bankruptcy Law and Creditors' Rights Law.
I This motion is amended to include the identification of a long since concluded representation of General Electric Capital Company and General Electric Supply Company, as set forth in paragraph 4, which was inadvertently omitted from the prior version of the Motion that was filed.
Case 8:11-bk-22258-MGW Doc 1362 Filed 02/26/14 Page 2 of 4
3. As Special Counsel, the Firm has represented and continues to represent
the Trustee in matters related to the administration of the bankruptcy estate, including but
not limited to, identification, prosecution and recovery of assets; representation in
appellate matters, including briefing and oral argument, and in state administrative
proceedings; filing and prosecution of adversary proceedings; defense of state court
litigation; drafting and responding to motions; preparing subpoenas; review of discovery
documents; scheduling and attending depositions and Rule 2004 examinations; reviewing
and outlining work to be performed in preparation for hearings, including evidentiary
hearings; preparation and attendance at a number of official mediations and unofficial
settlement conferences; legal research; and communications with opposing counsel.
4. As more fully set forth in the Amended Declaration of Steven M. Berman
in Support of this Motion, attached as Exhibit A, and to the best of the Trustee's
knowledge, the Firm has no connection with either the Debtor or its wholly owned
subsidiary, Trans Health Management, Inc. ("THMI"), any creditor of the Debtor or
THMI, any other party in interest, their respective attorneys and accountants, or the
United States Trustee, other than a long since concluded prior representation of General
Electric Company and General Electric Supply Company on completely unrelated
matters. The Firm represents no interest adverse to the Trustee.
5. The representation sub judice has been, and continues to be, tremendously
gratifying. The Firm undertook the representation at the request of the Trustee amid some
contention in obtaining the Debtor and THMI's books and records and control over
litigation, and those issues continue to pervade the representation.
SLK_TAM:#1719620v1
Case 8:11-bk-22258-MGW Doc 1362 Filed 02/26/14 Page 3 of 4
6. At the onset of the representation, the Firm was willing to handle the
representation solely on an hourly fee basis along with reimbursement of its costs. The
natural expectation was, however, that assets sufficient to compensate the Firm along
with other administrative expenses would become available before now.
7. To date, the Firm has incurred more than $2,250,000.00 in attorney and
other professional fees, and more than $200,000.00 in actual out-of-pocket expenses.
8. That said, the Firm is committed to fully prosecuting what it now knows to
be substantial assets arising from a massive fraud involving a multitude of entities,
individuals, and law firms. The accrual of fees and costs has not altered the Firm's
resolve or commitment to the Trustee.
9. However, the prospect of earning only an hourly fee, if and when assets
are recovered, fails to adequately compensate the Firm for its risk of nonpayment in the
event of no Estate recovery.
10. After consultation between the Trustee and the Firm, and with the consent
of the holders of Claim Nos. 1 through 6,2 the Trustee has agreed to alter the Firm's
agreed compensation to an arrangement where the Firm's fee entitlement is the sum of (i)
compensation for the Firm's services on an hourly basis; (ii) a contingency of seven
percent (7%) of all Estate recoveries; and (iii) reimbursement of all costs incurred (the
"Modified Fee Arrangement").
11. The purpose of the Modified Fee Arrangement is to compensate the Firm
consistent with its assumption of risk in carrying the fee receivable balance and the
2 The undersigned counsel has also attempted to obtain the consent of the holder of Claim No. 7 (the Estate of Alice Elizabeth Greene Darson) to determine if that creditor also supports the Modified Fee Arrangement.
SLK_TAM:#1719620v1
Case 8:11-bk-22258-MGW Doc 1362 Filed 02/26/14 Page 4 of 4
prospect of no recovery by the Estate given the changing realities of this case and its
related proceedings and robust appellate activity.
12. The Trustee respectfully submits that the Modified Fee Arrangement is
fair, reasonable, and well within the normal range for services rendered in cases of
similar complexity and magnitude in the Middle District of Florida.
WHEREFORE, Beth Ann Scharrer, as Chapter 7 Trustee, respectfully requests
this Court enter an Order granting this Motion, approving the Modified Fee Arrangement,
and granting any such other and further relief as is just and appropriate.
SHUMAKER LOOP & KENDRICK, LLP
By: /s/ Steven M Berman Steven M. Berman, Esq. Florida Bar No.: 856290 Seth P. Traub, Esq. Florida Bar No.: 058100 101 E. Kennedy Blvd., Suite 2800 Tampa, Florida 33602 Phone (813) 229-7600 Facsimile (813) 229-1660 Counsel for the Trustee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 26, 2014, a true and correct copy of the foregoing was furnished by CM/ECF Electronic Notice or U.S. Mail to All Creditors, all parties who have filed a notice of appearance, and to:
United States Trustee - TPA7, 7 Timberlake Annex, Suite 1200 501 E Polk Street Tampa, FL 33602
/s/Steven M. Berman Attorney
SLK_TAM:#1719620v1
Case 8:11-bk-22258-MGW Doc 13624 Filed 02/26/14 Page 1 of 4
EXHIBIT A
Case 8:11-bk-22258-MGW Doc 1362-1 Filed 02/26/14 Page 2 of 4
UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
In re:
Case No: 8:11-bk-22258-MGW
Fundamental Long Term Care, Inc. Chapter 7
Debtor.
AMENDED DECLARATION OF DISINTERESTEDNESS OF STEVEN M. BERMAN, ESQ. IN SUPPORT OF THE TRUSTEE'S MOTION TO MODIFY RETENTION TERMS AS RELATED TO SPECIAL COUNSEL,
SHUMAKER, LOOP & KENDRICK, LLP
Under the pains and penalties of perjury, STEVEN M. BERMAN, ESQ., swears to the
following:
1. My name is Steven M. Berman, and I am 'a partner at Shumaker, Loop &.
Kendrick, LLP (the "Firm").
2. I am a member of both the Florida and California Bars, as well as the United
States District Court for the Middle District of Florida, and I am over 18 years of age.
3. Unless otherwise stated, this declaration is based upon facts of which I have
personal knowledge.
4. The Firm does not have any connection to or any interest materially adverse to the
Debtor, any of the Debtor's affiliated businesses, any business or entity which may be
considered an insider of the Debtor, including Trans Health Management, Inc. ("THMI"), the
Trustee, the Debtor's creditors, any party in interest, their respective attorneys or accountants,
the United States Trustee, or the employees of the Office of the United States Trustee, other
SLK_TAM:#1719621v1
Case 8:11-bk-22258-MGW Doc 1362-1 Filed 02/26/14 Page 3 of 4
than a long since concluded prior representation of General Electric Company and General
Electric Supply Company on completely unrelated matters.
5. No member of the Firm holds a direct or indirect interest in the Debtor or THMI,
any of their affiliated entities or businesses, or any entity or business which is or may be an
insider of the Debtor or THMI.
6. No member of the Firm is or has ever served as an officer, director, manager,
member or employee of the Debtor or THMI.
7. No member of the Firm is in control of the Debtor, THMI or any of their
affiliated entities or businesses or is a relative of any officer, director, manager, member or
employee of the Debtor or any of its affiliated entities or businesses.
8. No member of the Firm is a general or limited partner of a partnership in which
the Debtor or THMI is also a general or limited partner.
9. No member of the Firm is or ever has served as an officer, director, or employee
of a financial advisor that has been engaged by the Debtor, THMI or any of their affiliated
entities or businesses in connection with the offer, sale, or issuance of a security of the Debtor
or any of its affiliated entities or businesses.
10. No member of the Firm presently represents or otherwise works for any creditor,
general partner, lessor, lessee, party to an executory contract of the Debtor, THMI or any of their
affiliated entities or businesses, or person otherwise adverse or potentially adverse to the Debtor,
THMI on any matter, whether such representation is related or unrelated to the Debtor, THMI or
the estate.
11. No member of the Firm presently performs any work for the Debtor, THMI or
any of their affiliated entities or businesses.
SLK_TAM:1117196210
Case 8:11-bk-22258-MGW Doc 1362-1 Filed 02/26/14 Page 4 of 4
12. There are no agreements of any nature as to the sharing of the compensation to
be paid to the Firm.
13. I am not aware of any conflicts of interest that would prevent the Firm from
providing services to the Trustee as requested in the Trustee's Application to Employ the Firm
as Special Counsel.
I DECLARE UNDER PENALTY OF PERJURY PURSUANT TO THE
PROVISIONS OF 28 U.S.C. § 1746 THAT THE FOREGOING STATEMENTS ARE
TRUE AND CORRECT TO THE BEST OF MY INFORMATION, KNOWLEDGE AND
BELIEF.
Dated this 26th day of February, 2014.
Steven M. Berman, Esq. Florida Bar No.: 856290 [email protected] 101 E. Kennedy Blvd., Suite 2800 Tampa, Florida 33602 Phone (813) 229-7600 Facsimile (813) 229-1660
SLK JAM:#1719621v1
TAB 22
Case 8:11-bk-22258-MGW Doc 1425 Filed 04/21/14 Page 1 of 2
UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
In re:
Fundamental Long Term Care, Inc.
Debtor.
Case No. 8:11-bk-22258-MGW Chapter 7 case
ORDER GRANTING AMENDED MOTION TO MODIFY RETENTION TERMS WITH RESPECT TO THE TRUSTEE'S SPECIAL COUNSEL, STEVEN M.
BERMAN, ESQ. AND SHUMAKER LOOP AND KENDRICK, LLP (DOC. 1362)
THIS CASE came on for hearing on April 3, 2014, on the Trustee's Amended
Motion to Modify Retention Terms with Respect to the Trustee's Special Counsel,
Steven M. Berman, Esq. and Shumaker, Loop & Kendrick, LLP ("Motion") (Doc. 1362),
brought pursuant to 11 U.S.C. 328(a). This Court reviewed the Motion, the objections by
the Office of the United States Trustee (Doc. 1365), by General Electric Capital
Corporation ("GECC") (Doc. 1387), and by Fundamental Administrative Services, LLC
("FAS") (Doc. 1408), and heard argument of counsel for the Trustee, the Office of the
United States Trustee, GECC, FAS, and the Estates of Jackson, Nunziata, Webb,
Townsend, Sasser, Jones, and Darson. Being otherwise fully advised in the premises, and
for the reasons stated in open Court, which shall constitute the decision of this Court, the
Court finds and concludes the
[Remainder of Page Intentionally Left Blank]
1
Case 8:11-bk-22258-MGW Doc 1425 Filed 04/21/14 Page 2 of 2
Motion should be granted. Accordingly, it is ORDERED that the Motion is hereby
GRANTED without prejudice to any party in interest interposing any otherwise
appropriate objections to any application for compensation by the Trustee's counsel.
DONE and ORDERED in Chambers in Tampa, Florida, this April 21, 2014
Michael G. Williamson United States Bankruptcy Judge
Attorney Steven M. Berman is directed to serve a copy of this order on interest parties and file a proof of service within 3 days of entry of the order.
2
TAB 23
Christopher Hopkins
Akerman Senterfitt 222 Lakeview Avenue
Suite 400 West Palm Beach, FL 33401
Tel: 561.653,5000 Fax: 561.659.6313
Dir: 561.671.3668 [email protected]
October 21, 2013
VIA OVERNIGHT DELIVERY VIA EMAIL & FEDEX DELIVERY lholcomb@flabar,oro. Lori Holcomb, Esq, UPL Committee Staff Contact The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399-2300
The UPL Department The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399-2300
VIA EMAIL & US MAIL DELIVERY edbuielaw(iigniail.com Carsandra D. Buie, Esq, Standing Committee— Unlicensed Practice of Law, Chair P.O. Box 2920 Sanford, FL 3277-2290
RE: Beth Ann Schaffer, as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc.; and Trans Health Management, Inc. adv. Fundamental Administrative Services, LLC and Christine Zack, ESQ,
Dear To Whom It May Concern at the UPL Department; Ms. Holcomb; and Ms. Buie:
This letter follows my October 4, 2013 correspondence and, under a special appearance, serves as a Response to the Petition for Formal Advisory Opinion Concerning the Unlicensed Practice of Law ("Petition") on behalf of Fundamental Administrative Services, LLC ("FAS").
Preliminary Statement — Special Appearance to Preserve FAS' Jurisdictional Position
As a preliminary statement, and out of an abundance of caution due to the ongoing litigation between Petitioners and FAS, this Response and any submissions or appearances by
akemian.eorn
BOCA RATON DALLAS DENVER FORT LAUDERDALE JACKSONVILLE LAS VEGAS LOS ANGELES MADISON MIAMI NAPLES NEW YORK ORLANDO PALM BEACH SALT LAKE CITY TALLAHASSEE TAMPA TYSONS CORNER WASHINGTON, D.C.
WEST PALM BEACH
(27320508; I )
The UPL Department Lori Holcomb, Esq. Carsandra D. Buie, Esq, RE: Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy October 21, 2013 Page 2
FAS or its agents and employees is a "special appearance" to preserve FAS' jurisdictional defenses. FAS is a Delaware limited liability company with its principal place of business in Maryland. FAS does not have a place of business in Florida, and has not performed any acts which subject it to jurisdiction in Florida with respect to the matters described in the Petition. Ms. Christine Zack is a Maryland-licensed, in-house attorney employed by FAS who resides in Nevada and who has been dismissed from two different lawsuits filed by Mr. Berman and his clients ("Petitioners") on the basis that she is not subject to personal jurisdiction in this State. FAS does not waive its jurisdictional defenses to any claims or other relief that may be sought against it in a Florida state or federal court. Nor does FAS waive the requirement of service of process, as may be appropriate to the forum. See Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla. 1982).
Without waiving its jurisdictional position, and in a good faith effort to assist the UPL Committee, FAS provides this Response.
Background
As you are aware from Exhibit A to the Petition, Petitioners filed suit claiming that FAS and two employees allegedly practiced law in Florida without a license, See Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc. and Trans Health Management, Inc. v. Fundamental Administrative Services, LLC et al., Case 8:12-cv-01855-JSM-MAP (M.D. Fla.) ("UPL Action"). A copy of the UPL Action is attached as Exhibit A. The allegations against FAS in the UPL Action were dismissed twice.
At the same time they filed the UPL Action, Petitioners filed another suit alleging that FAS, and its current and former employees, committed legal malpractice and/or a breach of a fiduciary duty. See Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc. and Trans Health Management, Inc. v. Fundamental Administrative Services, LLC et al., Case 8:12-cv-01854-JSM-MAP (M.D. Fla.) ("Malpractice Action"). A copy of the Malpractice Action is attached as Exhibit B.
It is important for the UPL Committee to understand that the UPL and Malpractice Actions were filed simultaneously by the Petitioners; both cases arise from the same allegations; and the Malpractice Action is ongoing in the U.S. District Court for the Middle District of Florida.
To put the Petition, UPL Action, and the on-going Malpractice Action into context, the Petitioners filed both suits in July 2012 (a little over a year ago) against Respondent FAS; its Chief Risk Officer, in-house counsel, and Senior Vice-President, Christine Zack; and former General Counsel, Kristi Anderson. In the UPL Action, it was alleged that FAS through its employees, Anderson and Zack, engaged in the unauthorized practice of law by purportedly
{27320508;1)
The UPL Department Lori Holcomb, Esq. Carsandra D. Buie, Esq. RE: Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy October 21, 2013 Page 3
directing and controlling the defense of Trans Health Management, Inc. ("THMI"), which was represented by Florida counsel of record, in five personal injury lawsuits in Florida, In the Malpractice case, it likewise was alleged that FAS through its employees, Anderson and Zack, committed legal malpractice and/or breached fiduciary duties by, again, purportedly directing and controlling the defense of THMI, which was represented by Florida counsel of record, in the same five personal injury actions, While FAS disputes the allegations, such "alternative" pleading should have been brought in one action.
After the UPL Action was removed to the United States District Court for the Middle District of Florida, FAS and its employees successfully moved to dismiss Petitioners' original and amended complaints. Twice the District Court dismissed the complaints for lack of jurisdiction and failure to state a claim. After reaching an agreement with Petitioners which including offering certain testimony, FAS' former employee, Ms. Anderson, was dismissed (noticeably, her name is not mentioned in the Petition). In a July 30, 2013 Order, the District Court dismissed Petitioners' amended complaint without prejudice to allow Petitioners sixty days within which to initiate the process for requesting an advisory opinion regarding whether FAS's and Ms. Zack's purported conduct constitutes the unauthorized practice of law.
The Malpractice Action also was removed to the U.S. District Court and, thereafter, motions to dismiss were filed by FAS, Anderson, and Zack. Here too, Ms. Anderson made an agreement with the Petitioners and she was dismissed. The District Court denied FAS' motion but granted Ms. Zack's motion. However, at the same time that Mr. Berman submitted the Petition to this Committee, he filed a Motion for Reconsideration of the Court's Order granting Ms. Zack's motion to dismiss and a motion for an extension of time, a copy of which is attached as Exhibit C. In short, the Malpractice Action, which is virtually a carbon-copy of the UPL Action, is still ongoing in the U.S. District Court.
Summary of Argument
As indicated in my prior letter to this Committee, there are a number of issues to be considered if and when the merits of the Petition are addressed. However, upon subsequent review of the Petition and Rule 10-9,1, it is evident that a public hearing is not appropriate due to the pending suits. As such, this Response will not enter into a lengthy discussion of the allegations at this time but, instead, explains the application of Rule 10.9-1 to this Petition.
The UPL Committee should dismiss the Petition or stay any consideration of it because:
(1) According to Rule 10-9.1(c), the UPL Committee shall not render an opinion with respect to any case or controversy pending in any court or tribunal in this jurisdiction unless the that suit has been stayed or voluntarily dismissed without
(27320508;1)
The UPL Department Lori Holcomb, Esq, Carsandra D. Buie, Esq, RE: Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy October 21, 2013 Page 4
prejudice. The Petition is procedurally barred because Petitioners did not "stay" or "voluntarily dismiss" the UPL Action before requesting an advisory opinion; and
(2) Petitioners have not "stayed" or "voluntarily dismissed" the Malpractice Action and other related suits in this jurisdiction which are integral to the Petition. Accordingly, the advisory opinion that Petitioners request is procedurally barred by Rule 10-9.1(c) because it would be "with respect" to the Malpractice Action and other ongoing litigation proceedings.
We appreciate your courtesy in permitting us time to provide our submission,
Response to Petition
At this juncture, Rule 10-9,1(b) of the Rules Regulating the Florida Bar requires the UPL Staff Counsel to make an initial determination of whether the Trustee's Petition "complies with the requirements of" Rule 10-9.1. To avoid wasting the limited time and resources of UPL Staff Counsel, this Committee, and the parties involved in this proceeding, FAS respectfully submits this Response to demonstrate that the Petition fails to comply with the requirements of Rule 10-9.1 and is defective in other significant respects,
T. Petitioners Did Not Comply With Rule 10-9.1(c)'s "Voluntarily Dismissed" Requirement
The Petition should be dismissed because Petitioners did not comply with Rule 10-9.1(c). Subsection (c) provides a limited exception to the general rule that "[n]o opinion shall be rendered with respect to any case or controversy pending in any court or tribunal in this jurisdiction" that is conditioned upon a petitioner's compliance with subsection (c)'s requirements. Specifically, subsection (c) provides that "the committee shall issue a formal advisory opinion under circumstances described by the court in Harold Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010), when the petitioner is a party to a lawsuit and that lawsuit has been stayed or voluntarily dismissed without prejudice." Rule 10-9.1,(c) (emp, added); see also In re Amendments to the Rules Regulating the Florida Bar-10-9.1, 82 So, 3d 66, 67-68 (Fla, 2012) (per curium) (adopting an amendment to include this highlighted text (among other changes) in Rule 10-9.1)(emp, added).
The Petition is procedurally barred by Rule 10-9,1(c) because Petitioners neither moved to "stay" nor "voluntarily dismissed" the UPL Action. Instead, after Petitioners filed their complaint in the UPL Action, they were confronted with motions to dismiss in which the defendants argued that their alleged conduct previously had not been determined by the Florida Supreme Court to be the unauthorized practice of law. Rather than seek to stay or voluntarily dismiss the UPL Action without prejudice to request an advisory opinion in compliance with
(27320508;1}
The UPL Department Lori Holcomb, Esq, Carsandra D. Buie, Esq. RE; Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy October 21, 2013 Page 5
Rule 10-9.1(c), Petitioners decided to litigate their case on the merits, and lost. And Petitioners followed this same approach in response to FAS' (and other defendants') motions to dismiss Petitioners' amended complaint as well. In short, Petitioners' complaints were not "voluntarily dismissed" as Rule 10-9.1(c) requires.
The purpose of Rule 10-9.1(c)'s requirement that a pending case be "stayed or voluntarily dismissed" is to allow a litigant to obtain an advisory opinion before the case is decided on the merits. The Rule was not intended to allow a non-prevailing party to use the advisory opinion procedure, as Petitioners seek to use it here, as a vehicle to pursue a de facto appeal of an adverse judicial decision, thereby depriving the prevailing party of the benefits of full participation to which it otherwise would be entitled in a direct judicial appeal. Having chosen not to avail themselves of the advisory opinion procedure in advance of a dispositive ruling by the District Court dismissing their UPL Action, Rule 10-9.1(c) precludes Petitioners from invoking that process now to obtain a third bite at the apple.
II. No Opinion Shall Be Rendered With Respect to Any Pending Case in This Jurisdiction
A. Petitioners Maintain a Nearly Identical Pending Malpractice Suit Which Bars the Rendition of an Advisory Opinion
The day before Petitioners filed the UPL Action, they filed a complaint in the Malpractice Action in which, like the UPL Action, Petitioners are the plaintiffs and the defendants include FAS; its current employee, Ms. Zack; and a former employee, Ms. Kristi Anderson. A copy of the Malpractice Case complaint is attached as Exhibit B.
As you can see, the facts asserted in the UPL and Malpractice Actions arise from the same operative allegations except that, in the Malpractice Action, Petitioners have alternatively alleged legal malpractice rather than UPL. The similarity of the allegations is immediately apparent; in the Malpractice Action, Petitioners make allegations about "the FAS Defendants' ongoing efforts to direct and substantially control the defense of THMI„." (see paragraph 11, Malpractice Action complaint), Likewise, Counts V and VI allege that FAS' employees committed legal malpractice and FAS committed a breach of fiduciary duty based upon the same allegations presented to this Committee. Even Petitioners had to acknowledge to the federal court that the Malpractice and UPL Actions were inextricably related. See Petitioners' Notices of Pendency of Related Cases, composite Exhibit D.
Currently, Petitioners are continuing to pursue their Malpractice Action. A copy of the docket is attached as Exhibit E. In fact, at the same time that Mr. Berman submitted the Petition to this Committee, he filed in the Malpractice Action a Motion for Reconsideration of the Order
{27320508;1)
The UPL Department Lori Holcomb, Esq, Carsandra D. Buie, Esq. RE: Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy October 21, 2013 Page 6
on Motion to Dismiss and a Motion for Extension of Time, a copy of which is attached as Exhibit C.
FAS was required to raise its jurisdictional defenses first in the Malpractice Action before it could seek to have the Malpractice and UPL Actions consolidated, as they should have been from the start. Here, however, there should be no question that an advisory opinion based on Petitioners' UPL allegations would improperly touch and concern Petitioners' ongoing Malpractice Action, which Petitioners have not stayed or voluntarily dismissed. In short, the Petition improvidently seeks an advisory opinion on a core issue that goes to the very heart of Petitioners' gngolgi Malpractice Action, This is especially true given that, in the Malpractice Action, Petitioners are required to prove that FAS actually engaged in the practice of law—the very issue which the Petition asks this Committee to decide—in the context of an attorney-client relationship with respect to the acts or omissions upon which Petitioners' malpractice claim is based, See Kates v. Robinson, 786 So, 2d 61, 64 (Fla. 4th DCA 2001). Accordingly, the Petition does not comply with the requirements of Rule 10-9,1(c) and therefore should not be considered,
B, The Petition Identifies Ongoing Cases/Controversies in which Petitioners Are Parties Which Bars the Rendition of an Advisory Opinion
As mentioned in our October 4, 2013 letter, it is important for the UPL Committee to understand that this Petition was preceded by a bitter history of still-ongoing litigation brought by Petitioners and entities working with them, In fact, the Petition itself refers to ongoing actions to which Petitioners are parties that involve allegations arising from and relating to the subject of Petitioners' requested advisory opinion, Because Petitioners have failed to stay or voluntarily dismiss those matters, Rule 10-9.1(c) bars the issuance of an advisory opinion,
The Petition references the following pending Florida cases or controversies where Petitioners (and FAS) are parties:
(i) In Re Fundamental Long Term Care, Inc., Case No, 8:11-bk-22258-MGW (Petition, page 2);
(ii) Estate of Juanita Amelia Jackson v. THI and THMI, Case No. 2004-CA-3229 (Circuit Court, Polk County, Florida)(Petition, page 3, 5-12)(see Notice of Appearance of Mr. Berman's firm as counsel for Petitioners, February 11, 2013, Exhibit F).
(iii) Estate of Elvira Nunziata v. Pinellas Park Nursing Home et al., Case No, 2005-CA-8540 and Case Nos, 2D-12-0764, 2D-12-0809, 2d-12-0810 & 2D-12-2102 (2d DCA). (Petition, pages 5-12);
Petitioners allege, relative to Jackson, Nunziata, and other matters, that FAS' actions amounted to the unauthorized practice of law. Petitioners attach as exhibits to the Petition
{27320508; I )
The UPL Department Lori Holcomb, Esq, Carsandra D. Buie, Esq. RE: Beth Ann Scharrer, as Chapter 7 Trustee for the Bankruptcy October 21, 2013 Page 7
pleadings from Nunziata and discuss these proceedings at length in pages 5-12 of the Petition (see note 10 ("FAS has a pattern of ostensibly directing the defense of THMI through local counsel when it is in fact FAS that is directing the litigation")).
By Petitioners' own reference, these are related cases or controversies pending in Florida (state) circuit, appellate, and federal (bankruptcy) courts to which Petitioners are parties. To issue the advisory opinion that Petitioners request, the Committee would have refer and involve itself in disputes in these pending matters, in violation of Rule 10-9.1(c). Accordingly, the Petition should not be considered,
We appreciate the opportunity to submit this response to the Trustee's Petition. If you have any questions or requests for additional information, please let us know.
AKERMAN SENTERFITT
By: /s/ Christopher B, Hopkins Christopher B. Hopkins
CBH/bat Enc, Described above CC: Steven M. Berman, Esq. (via email only, w/enc.)
{27320508;1)
EXHIBIT "A"
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 1 of 9 PagelD 17
IN TIME CIRCUIT COURT OF' THE TENTH RIDICIAL CIRC IN AND FOR POLK COUNTY, FLORIDA
CIVIL DIVISION
BETH ANN SCHARRRR, as Chapter 7 Trustee for the Bankruptoy Estate of Fundamental Long Term Care, Inc.; and TRANS HEALTH MANAGEMENT, INC,
Plaintiffs,
V. Case, No,
FUNDAMENTAL ADMINISTRATIVE SERVICES, LLC; CHRISTINE ZACK; and KRISTI ANDERSON;
Defendants.
JURY TRIAL DEMANDED ON ALL ISSUES TRIABLE 1W Amy
OMPLAINT
1110 Plaintiffs, Beth Ann &harm., as Chapter 7 Trustee (the "Trustee") of the estate of
Fundamental Long Term Care, Inc, ("FLTC"), and Trans Health Management, In°, ("TliN11"),
the wholly owned subsidiary of PLTC, hereby sues Defendants, Fundamental Administrative
Services, LLC, Christine Zook, and Kristi Anderson, and alleges as follows
411.1RICTION A141) VliNUE
1. This Court has subject matter Jurisdiction pursuant to Fla. SW, § 26,012(2)(a)
because the amount In controversy exceeds $15,000.00, exclusive of Interest, costs, and attorney
fees,
2. Venue Is proper in Polk County, Florida, under Flo, Stat, §§ 47.011 and 47,051
boons() the cause of notion accrued in Polk County as certain of the conduct alleged herein
occurred in Polk County.
1 of
53-20 /?:CA-00111,C0000-00 VW,. ft
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 2 of 9 PagelD 18
Tarr PARTI RS
3, On December 5, 2011 ("Petition Date"), the Estate of Juanita Amelia Jackson (the
"Jackson Bstate") filed an Involuntary petition against Pundatnental Long Term Care, Inc.
("FLTC") for relief under Chapter 7 of Title 11 of the United States Code in the United States
Bankruptcy Court for the Middle District of Florida ("Bankruptcy Court").
4. On January 12, 2012, the Bankruptcy Court entered an Order for Relief as a result
of FLTC's failure to file a motion or responsive pleading as required by Rule 1011 of the Federal
Rules of Bankruptcy Procedure,
5, Thereafter, the Trustee was appointed as Chapter 7 Trustee, 'As such, the Trustee
Is the duly appointed and acting Trustee of the Chapter 7 bankruptcy estate of FLTC.
6. TI-IMI is a wholly owned subsidiary of FLTC,
7, Fundamental Administrative Services, LLC ("FAS") is a Delaware limited
liability company with its principal place of business in Sparks, Maryland, FAS provides
administrative back office support services to long-term care companies, providers, skilled
nursing facilities, long-tern acute care hospitals, outpatient therapy care clinics, and hospices,
8, Christine Zack ("Zack") is an attorney employed by FAS, Upon information and
belief, Ms. Zack is a resident of Maryland, Ms, Zack is not a member of the Florida Bar and is
not licensed to practice law in Florida.
9, Kr' sti Anderson ("Anderson") is an attorney employed.by FAS, Upon Information
and belief, Ms, Anderson is a resident of Maryland and is a member of the Maryland State Bar,
Ms. Anderson is not a member of the Florida Bar and is not licensed to practice law in Florida,
2 of 9
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 3 of 9 PagelD 19
10. This Court has personal Jurisdiction over FAS, Ms, Zack and Ms, Anderson
(collectively, the "FAS Defendants") pursuant to Fla, Stat. §48,193(1)(a), (b), and (2), The FAS
Defendants' ongoing efforts to direct and substantially control the defense of THMI, FLTC and
others in litigation pending in the state and federal worts of this state constitute a substantial and
not isolated activity within this state, In addition, the FAS Defendants are operating, conducting,
engaging in, 'and carrying on business in this state.
11 . At all materiel times, Zack and Anderson were acting within the scope of their
actual or apparent authority on behalf of Ti.AS,
GJMERAT, ALLEGATION$
Legal Representation in State Courts
12, THMI is a defendant in five separate wrongtbi death oases pending in this Court,
as well as the Circuit Courts in Pinellas and Alachua County, Florida, as follows:
a) Estate of Juanita Jackson v. Briar Hill, Mai at al„ Polk County, Case No, 2004-CA-03229 (the "Jackson Litigation");
b) Estate of Opal Lee Sasser v, Briar Hill, Inc„ et al., Polk County, Case No, 2006-CA-3511;
c) Estate of Arlene Anne Townsend v, Briar HlU, Inc., Polk County, Case No. 09-CA-1025;
d) Estate of Matra lklunzlata v. Pinellas Park Nursing Home, et al„ Pinellas County, Case No, 2005-CA-8540;
e) Estate of Joseph Webb v. Trans Healthcare, Inc., et al., Alachua County, Case No, 2006-CA-2418;
(colleotively, the "Wrongfni Death Cases"),
3 of 9
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 4 of 9 PagelD 20
13, Each of the above lawsuits are based on claims of negligence and/or wrongful
death against THMI and Trans Healthcare, Inc, ("TH1"), which operated, managed, and/or
owned the _nursing homes whore the respective plaintiffs were injured,
14, In this Court, the Estate of Juanita Amelia Jackson filed a Cotnplaint on July 30,
2004, As of the date of the filing of the Jackson Litigation, THI was the owner of all of the
issued and outstanding capital stock of THMI, On or about February 28, 2006, THI sold all of
the stock in TINT to FLTC, the Chapter 7 Debtor in Bankruptcy,
15. FAS is not a law firm, Nevertheless, at all material times hereto, as part of the
"back office" services it provided to THMI and FLTC, FAS controlled and directed the legal
defense of THMI and FLTC in litigation in this Court and other courts in Florida, and performed
other management and legal services for THMI and FLTC,
I 6, The PAS Defendants have directed and controlled the defense of THMI and Till
against the claims in each of the above Wrongful Death Cases,
17, Zack and Anderson advised, counseled, provided legal advice, and directed local
defense counsel In connection with the Wrongful Death Cases, among other legal proceedings in
Florida,
18, Zack and Anderson made strategic decisions regarding the defense strategy, as
well as the strategy to withdraw all defenses, on behalf of THMI and FLTC in the Wrongful
Death Cases and acted as legal representatives of THMI and FLTC in each of the Wrongful
Death Cases,
19, Providing legal services was a means of producing income for FAS,
4 of 9
,xt
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 5 of 9 PagelD 21
20, in this Court, on April 28, 2010, the FAS Defendants directed counsel for THMI
and THI—Quintairos, Prieto, Wood & Boyer, P,A, (the "Quintairos Firm")--to withdraw as
counsel for both THMI and T1-11, and cease any defense against the Jackson Estate's claim,
21. In each of the Wrongful Death Cases, on behalf of FAS, Zack and/or Anderson
directed Florida counsel defending the oases to withdraw as counsel for THMI and/or TH1, and
cease any defense of the respective claims.
22, On June 4, 2010, this Court entered a written Order granting a Motion to
Withdraw filed by the Quintairos Firm (the "Withdrawal Order"), which stated that Ms,
Anderson "shall be the contact person for purposes of servicing of pleadings and proceedings
regarding the defense of this lawsuit , „"
23. The strategic decisions and defense strategy implemented by FAS, Zack and
Anderson, as counsel for THMT and THI, was to cease all defense of Jackson Litigation.
24. On Juno 25, 2010, the Jackson Estate moved for a default against THMI and TM
as a result of their failure to attend a June 22, 2010 pretrial conference and failure to secure new
counsel (the "Motion for Default"), The Motion for Default was served on Ms, Anderson.
25, On July 7, 2010, In the Jackson Litigation, this Court entered a Default against
THMI and TI-H "for failure to plead or otherwise defend as provided by FRCP 1.500(b)" (the
"Default"), The Default was served on Ms. Anderson
26, The Court proceeded to a trial on the Jackson Estate's claim, which resulted in a
jury finding TNT and THMI Jointly liable for negligence and wrongful death in the amounts of
$10 Million in compensatory damages and $100 Million in punitive damages. No counsel
appeared at trial on behalf of THMI or TM,
5 of 9
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 6 of 9 PagelD 22
27, On July 22, 2010, the Court entered a Final Judgment against THMI in the
amount of $55 Million and against TM in the amount of $55 Million (the "Final Judgment").
Ms, Anderson was served with a copy of the Final Judgment,
28. On or about May 16, 2011, the Jackson Estate filed a Motion to Implead New
Defendants in Prooeedings Supplemental to Execution and for an Order to Show Cause (the
"Motion to Implead") pursuant to Fla, Stat. § 56.29 to Implead various third parties, including
FLTC, FAS, and twelve other third parties alleged to have orchestrated to delay and hinder
satisfaction of the Final Judgment,
29. On May 23, 2011, this Court entered an Amended Order Granting Plaintiff's
Motion to Implead New Defendants in Proceedings Supplemental and Directing New
Defendants to Show Cause as to Why They Should Not Be Held Liable for Payment of the Final
Judgment (the "Order to Show Cause"),
30. While FAS responded to the Order to Show Cause on its own behalf, FAS, Zack
and Anderson failed to do so, or arrange for a response, on behalf of their client, FLTC,
31. On July 11, 2011, as a result of FLTC's failure to make an appearance, file any
papers, or otherwise respond to the Order to Show Cause, the Court entered an Order Granting
Default Against Fundamental Long Term Care, Inc, (the "FLTC Default").
32, On September 13, 2011, this Court entered an Amended Final Judgment, which
imposed liability upon FLTC in the amount of $110 Million.
ActIon$ Related to Bankruptcy of FLTC
33 In response to the Trustee's need for information to administer the Bankruptcy
Estate, on February 23, 2012, the Bankruptcy Court entered an Order on Order to Show Cause,
6 of 9
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 0845/12 Page 7 of 9 PagelD 23
which provided that all "parties in possession of any books and records of [FLTC], including but
not limited to legal files, who receive a copy of thiS Order, including former or current attorneys
for or noting on behalf of [FI,TC)" must produce copies of such records to the Trustee,
34, Counsel for the Trustee requested such documents from the Quintairos Firm,
35. Upon information and belief, FAS, Zack and/or Anderson threatened a lawsuit
against the Quintairos Firm for any damages that may arise from disclosure of documents held
by the Quintairos Finn that FAS alleged to be attomoy-client privileged.
36. The Trustee will know once FAS, Zack and Anderson truthfully comply with the
Bankniptcy Court's Orders,
COUNT,I
37. The Trustee and THMI re-allege the foregoing paragraphs one (1) through thirty-
six (36) as if Mily set forth herein.
38, This is an action for restitution, damages, and unjust enrichment based upon
Defendants' unauthorized practice of law.
39. The FAS Defendants unlawfbily controlled and/or directed THMI's defense and
represented themselves as counsel for THMI and FLTC counsel,
40, The FAS Defendants directed the withdrawal of defense for THMI in the
Wrongful Death Cases, doing so without seeking actual authority of THMI and without making
reasonably sure that their withdrawal would not result in prejudice to THMI, or ultimately to
FLTC,
41. As part of its fees to its clients, FAS, Zack and Anderson provide legal services,
Such fees are paid to PAS, not to any lawyer,
7 of 9
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 8 of 9 PageiD 24
42, FAS profited from the legal representation of THMI and FLTC by Colleoting fees
for the legal services provided by its employees.
43, The Florida Supreme Court has ruled that FAS' conduct of providing legal
services as a means of producing income for the non-law firm corporation constitutes the
unauthorized practice of law, Florida Bar v, Consolidated Business and Legal Foam, .lee,, 386
So,2d 797 (Fla, 1980),
44, The unauthorized practice of law by PAS, through employees it controls and
directs, has resulted in injury to or inadequate representation of THIVIT and FLTC,
45, Zook Is note member of the Florida Bar and is not licensed to practice law in
Florida.
46, Anderson is not a member of the Florida Bar and is not licensed to practice law in
Florida,
47. Zack and Anderson advised, counseled, provided legal advice, and directed local
defense counsel in connection with legal proceedings in Florida, including the Wrongful Death
Cases,
48, The FAS Defendants made strategic decisions regarding the defense strategy on
behalf of TI-M41 in Florida litigation and acted as legal representatives of THMI and MTG.
49, Defendants' conduct constitutes the unauthorized practice of law, The Florida
Bar v, Dale, 496 So,2d 813 (Fla, 1986),
50. Additionally, FAS, Zack and/or Anderson made threats to file suit against Florida
local counsel, the QuIntaires Firm, for any damages that may arise from the disclosure of
documents alleged to be attorney-client privileged,
8 of 9
Case 8:12-cv-01855-JSM-MAP Document 2 Filed 08/15/12 Page 9 of 9 PagelD 25
51, The Florida Supreme Court has held that threats to file suit with or on behalf of a
client by an individual who is not an attorney licensed to practice law in Florida constitutes the
unauthorized practice of law, The Florida Bar v, York) 689 So,2d 1037 (Fla, 1996),
WHEREFORE, Beth Ann Scheirer, as Chapter 7 Trustee of the estate of Fundamental
Long Term Care, Inc., and Trans Health Management, Inc., demands judgment against
Defendants, Fundamental Administrative Services, LLC, Christine Zack, and Kristi Anderson,
for restitution of legal fees paid, and for compensatory and consequential damages based on
Defendants' unlicensed practice of law, and for such other relief this Court deems appropriate,
DEMAND SAAR JURY yRIAL
Plaintiffs hereby demand trial by jury of all issues so friable.
Datedt July 20, 2012 SHUMAKER, LOOP & KENDRICK, LLP
Steven M, Berman, Esq, Florida Bar No, 856290 101 B, Kennedy Blvd., Ste, 2800 Tampa, Florida 33602 ' Phone; (813) 229-7600; Fax: (813) 2291660 Counsel for Beth Ann Schaffer, as Chapter I Trustee, artafor Trans Health Management, Inc
9 of9
By:
EXHIBIT "B"
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 1 of 37 PagelD 42
IN THE CIRCUIT COURT OF THC TENTH JUDICIAL CIRCUIT IN AND FOR POO< COUNTY, FLORIDA
CIVIL DIVISION
BETH ANN SCHARRBR, as Chaptor 7 Trustee for the Bankruptcy Bstato of Fundamontal Long Tonn Caro, Ino,; and TRANS HEALTH MANAGEMENT, INC.
Plaintiffs, 53,20 CA.O19944006:06 c'? cri
v, Ono. No,
FUNDAMENTAL ADMINISTRATIVE SERVICES, LLC; CHRISTINE ZACK; JURY TRIAL DUMANDRD ON
ALL ISSUES TRIABLR I3Y JURY KRISTI ANDERSON; TYDINGS &ROSENBERG LLP; MARIA ELLENA CHAVE&RUARK;
C) ALAN M. OROCHAL, individually and not as Reoolvor,; r- 0 QUINTAIROS, PRIETO, WOOD & BOYER, P.A,; THOMAS A, VALDEZ; KEVIN W. RICHARDSON; and ALBERT J. PERRERA;
/
Defondants,
1 COMPLAINT
Tho Plaintiffs, Both Ann Schauer, as Chapter 7 Trustee (tho "Tnmtoo") of the estate of
Fundamontal Long Term Caro, Mo., and Trans Health Managornont, Inc, ("THMI"), tho wholly
owned subsidiary of the Debtor, hereby suns Defondants, Fundamental Administrative Services,
LLC, avisiino Zack, Kristi Anderson, Tydings & Rosonberg LLP, Marla Dillon Chavoz.Ruark,
Alan Oroohal, individually and not ns Receiver, Qui»tairos, Prieto, Wood & Boyer, P.A„
Thomas A. Valdez, Kevin W, Richardson, and Albert J, Perron, and alleges as follows;
<:1€ :S
d
bi i
lf Z
IR
1 022
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 2 of 37 Pagel D 43
PIUS MOTION 011) VEr,ru
I, This is an notion for damage in exoe,ss o f $15,000.00 exclusive of interest,
attorney fees, and costs,
2, This Court has subject matter Jurisdiction pursurmt to Pla, Stat. § 26.012(2)(a)
because the amount in controversy weeds $15,000,00, exclusive of Interest, costs, and attorney
fees,
3, Venue Is proper in Polk County, Florida, under Pla, Stal, §§ 47,011 and 47,051
because the cause of action accrued In Polk County,
Tflg PAMIRS,
4. On December 5, 2011 ("Petition Date"), the Estate ofJuanita Amelia Jackson (the
"Jackson Estate") filed an Involuntary petition against Fundamental Long Term Core, Inc.
("PUN") for roller under Chapter 7 of Title I 1 of the United States Code In tho United States
8ankruptey Court for the Middle District of Florida ("13ankruptoy Court"),
5, On January 12, 2012, the Bankniptey Court entered an Order for Relief as a result
ot'PLTC's failure to file a motion or responsive pleading as required by Rule 101 l of the Mimi
Rules of Bankruptcy procedure,
6, Thereafter, the Trustee was appointed us Chapter 7 Trustee, As such, the Trustee
is the duly appointed and acting Trustee of the Chapter 7 bankruptoy estate of FLTC,
7, Tf11\41 is a wholly owned subsidiary of FLTC,
8, Fundamental Administrative Services, LW ("FAS") is a Delaware limited
liability corporation with its principal place of business in Sparks, Maryland, At all material
times hereto, PAS controlled and directed the legal defense of THI, TM and FLTC in
2 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 3 of 37 Pagel D 44
litigation in this Court rind other Courts In Florida, and performed other monogomont and legal
services for '11.1M1 and TUC.
9, Christina Znok ("Zook") is an attorney employed by FAS, Upon information and
Imhof, Ms, Zook Is a rosidont of Maryland and is a member of the Maryland State Bar, Ms. Zook
is not a member of the Florida Bar and is not licensed to practice low in Florida.
10, Krist I Anderson ("Anderson") is on attorney employed by FAS, Upon information
and belle, Ms, Anderson Is a resident of Maryland. Ms. Anderson is not a member of the. Plorldn
Bar and is not licensed to proolicso low in Florida,
I I, This Court has personal Jurisdiction over PAS, Ms, Zook and Ms, Anderson
(collectively, the "PAS Defendants") pursuant to Flo, Slot, §18.193(1)(o), (b), and (2), The PAS
Defendants' ongoing efforts to direct and substantially control rho dofonse of THM1 and others in
litigation pending in the state and federal courts of this state is .substantial and not isolated
activity within this state, In addition, the FAS Defendants are operating, conducting, engaging
in, and (Allying on business in this state, and have committed a tOrti011a net within this state.
12, Tydings & Rosenberg W' (the "Tydings Fim") is a Maryland-bosod law firm
with on office at 100 Bast Pratt Street, 26th Floor, Baltimore, MD 21202,
13, Maria BOON Chovoz-Roark ("Chavoz-Ruark") was an attorney with the Tydings
Finn during the time the (tots relevant to this Complaint 000twred, Upon Information and boiler',
Ma, Chavez-Ruork is a resident of Maryland, Ms, Chavez-Ruork is not a member of the Florida
Bar and is not licensed to practice law in Florida,
14, Alan Oroohol ("Grochot") is an attorney with rho Tydings Firm, Upon information
end bona, Mr, Groohol is a resident of Maryland, On or about July 27, 2010, ()robot was
appointed as successor Reoolvor in the receivership of Tons Boolthooro, Ina, In Maryland,
3 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 4 of 37 PagelD 45
However, during the time the acts relevant to this Complaint occurred, Mr, °rootlet was yet to be
appointed Receiver, and therefore Mr. Oroohal is being sued herein solely in his capooity as a
lawyer and not in his capacity as Resolver
15, This Court has personal Jurisdiotion over Ms. ChaVez-Ruark, Mr, Oroehal, and
the Tydings Firm (collectively, the "Tydings Defendants") pursuant to Fla, Stat, §48,193(1)(a),
(b), and (2). The Tydings Defendants' efforts to direct and substantially control the defense of
THMT and others in litigation pending in the state and federal courts of this state is substantial
and not Isolated activity within this state, In addition, the Tydings Defendants have committed a
tortious act within this state,
16, Quintairos, Prieto, Wood & Boyer, P,A, (the "Quintairos Firm") is a Florida
professional assoolation with Its principal address in Miami, Florida, and an office at 4905 West
Laurel Street, Suite 200, Tampa, FL 33607,
17, Albert Ferrero ("Ferrara") was an attorney at the Quintairos Firm during the time
the acts relevant to this ComplaInt occurred, Upon information and belief, Mr, Ferrero Is a
resident of Florida,
18, Thomas A. Valdez ("Valdez") Is on attorney and partner at the Quintairos Firm
during the time the cots relevant to this Complaint oeourred, Upon information and belief, Mr.
Valdez is a resident of Florida,
19, Kevin W, Richardson ("Richardson") is an attorney and partner at the Quintairos
Firm during the time the acts relevant to this Complaint occurred, Upon information and belief,
Mr. Richardson Is a resident of Florida.
4 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 5 of 37 PagelD 46
20, At all material times, Zack, Anderson, Chavez-Rork, Oroehal, Valdez,
Richardson, and Fermat were acting within the scope of their noh►nl or apparent authority on
behalf of their respective employers, principals, and/0r partners,
GENIMAL4LVGATIONS
kiiigallOtt Ly thy Jackson Estate Against TRW and Till
21, On July 30, 2004, the Jackson Estate filed a Complaint in this Court based on
claims of negligence and wrongthl death against THMI and Trans HeeIthoare, Inc, ("THI"),
which owned and managed the nursing home where Juanita A, Jackson was fatally Injured (the
"Jackson Litigation"),
2'2, As of the date of the filing of the Jackson Litigation, Till was the owner of all of
the issued and outstanding capital stook of WWI.
25, The PAS Defendants directed and controlled the defense of THMI and THI
against the Jackson aStOto)S claims In this Court,
24, Similarly, in coordination with the FAS Defendants, the Tydings Defendants
directed and controlled the defense of THMI and THI against the Jackson Violate's claims In this
Court,
25, During the course of the Jackson Litigation, THI fraudulently transferred all of its
substantial assets, divesting itself of any means ofsatisfaction of its tort liability, Following these
purported transfers, THI was placed into an ex patio receivership in Maryland,
26, O or about February 28, 2006, THI sold all of the stook in THMI to PLTC,
27. 'Beginning In or about January 2007, at the direction of the MS Defendants, the
Quintairos Firm, Ferraro, Valdez, and Richardson (collectively, the "Quintairos Defendants"),
5 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 6 of 37 PagelD 47
appeared on behalf of and noted as Plorlda counsel for THMI and THI in the Jackson Litigation
to defend the Jackson Eistoty's claims, I
28, After four and a half years of the Defendants Iltlgoti»g on behalf of their clients,
on December 3, 2009, the Circuit Court sohoduled the trial of the Jnokson Palate's claims for
Juno 7, 2010 and the pro4lol contereneo for Moy 18, 2010.
WIlhdratml of Counsellor THM7 and THI
29, On April 29, 2010, without having the consent or direction of Tumi, the
Quintniros Defendants filed n Motion to Withdraw as Attorney (the "Motion to Withdraw"),
requesting the Court's permission to withdrew as counsel for both THMI And TM and slating
that "roln April 28, 2010, Defendants [THMI and THI]disoharged Quintairos, Prieto, Wood
How, P,A as counsel duo to profossionol considerations that require tormination of the
reprosentotion," A into and correct copy of the Motion to Withdraw is attached as Exhibit 1,
30, Shockingly, the Quintoros Defendants did not even servo THMI or Till with the
Motion to Withdraw, much less communicate with them about the Quintalros Defendants being
directed to withdraw as counsel by entitles who were not their allots, The Motion to Withdraw
was served only on counsel for the Jackson Bstato and Ms, Anderson at PAS, See WIN! 1,
31, In foot, It was Anderson, Znok, Chavoz.Ruark and/or Croohal who directed the
Quintairos Defendants to cease defending the Jackson Litigation and otherwise withdraw as
counsel for THMI—not TRW,
On January 25, 2007, the Oiroult Court ontorad an Order granting Joint Stipulation for Substitution or ammo! (imilltinto lbs Quintairos Defendants as counsel of record for'lliMf and THI, Previously, rnilnp Y, Montt so, P,srl, and Daniel B. Dias, and the law ann of Manottso &Dios, represented THMI and 'an (also at (ha direotion of FAS).
6 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 7 of 37 PagelD 48
32, Interestingly, Zack, Anderson and Chavez‘awark, having had four and a half
years to divest THMI and THI of their assets, directed all counsel defending similar claims in
other litigation in Florida to immediately stop defending claims against at THMI and THI,
33. On May 18, 2010, In lieu of the scheduled pre-trial conference, the Court
conducted a hearing on the Motion to Withdraw,
34. Despite opposition from the Jackson Estate, the Court permitted the withdrawal,
and continued the trial date for thirty (30) days to give THMI and TI-11 additional time to secure
now counsel, At the hearing on the Motion to Withdraw, Mr, Richardson represented to the
Court that he had boon fired, and that the contact person going forward for THMI and TIT was
"an attorney in Maryland,"
35. On June 4, 2010, the Court entered its written Order granting the Motion to
Withdraw (the "Withdrawal Order"), which identified the "attorney in Maryland" as Ms,
Anderson, who "shall be the contact person for purposes of servioing of pleadings and
proceedings regarding the defense of this lawsuit , , ," A true and correct copy of the
Withdrawal Order is attached as Exhibit 2.
36, Ms. Anderson was served with both the Withdrawal Order and an Amended
Order on Pre-alai and July Trial Conference continuing the trial and pre-trial conferenee, which
continued the trial to a two-week docket beginning on July 12, 2010, with a pre-trial conference
on June 22, 2010,
7 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 8 of 37 PagelD 49
Default and Judgment is &Wed /iga(mst TRW and Till
37, Despite having control of the defense of TI-IMI and THI, and despite direct
knowledge of the pro-trial conference and trial date, neither the FAS Defendants nor the Tydings
Defendants obtained new counsel for THMI and TM to appear at the pre-trial conference,
38, On Juno 25, 2010, the Jackson Estate moved for a default against THMI and THI
as a result of their failure to attend the Juno 22, 2010 pre-trial conference and failure to some
now counsel. The Motion for Default was served on Ms. Anderson,
39, On July 7, 2010, this Court entered a Default against MI and THT "for failure
to plead or otherwise dofond as provided by FRCP 1.500(b)" (the "Default"), A true and correct
copy of the Default is attached as Exhibit 3, The Default was served on Ms, Anderson
40, The Court proceeded to a trial on the Jackson Estate's claim, which resulted In a
jury finding THI and THMI jointly liable for negligence and wrongful death in the amounts of
$10 Million In compensatory damages and $100 Million in punitive damages. Notwithstanding
the unbelievable reality that ()Hoot consent was never obtained flom THMI and no notice of the
withdrawal given to T1-1M1 , no counsel appeared at trial on behalf of THIVIT or TR
41, On July 22, 2010, the Court entered a Final Judgment against THMI in the
amount ot'$55 Million and against TM in the amount of $55 MilllUll (the "Final Judgment"), A
true and correct copy of the Final Judgment is nttnehed as Exhibit 4. Ms, Anderson was served
with a copy of the Final Judgment,
42, The Defendants neither appealed nor moved for reconsideration on behalfof
TRW' or Thi, Similarly, none of the Defendants sought remittitor of the Final Judgment, and
now the Final Judgment Is final and nonappealable to the detriment of TIIMI and PVC, who
have been damaged to the extent of at least $110 Millton,
8 of 22
Case 8: 12-cv-018 54-MSS-MAP Document 2 Filed 08/15/12 Page 9 of 37 PagelD 50
Proceedings Supplementary and Default Against PIM'
43, On or about May 16, 2011, the Jackson Estate filed a Motion to impload Now
Defendants in Proceedings Supplemental to Execution and for an Order to Show Cause (the
"Motion to upload") pursuant to Pin, Stat, § 56.29 to Implead various third parties, including
PLTC, PAS, and twelve other third parties alleged to have orchestrated to delay and hinder
satisfaction of the Pine) Judgment,
44, On May 23, 2011, this Court entered an Amended Order Granting Plaintiff's
Motion to upload Now Defendants in Proceedings Supplemental and Directing New
Defendants to Show Cause as to Why They Should Not 13e Held Liable for Payment of the Final
Judgment (the "Order to Show Cause"),
45. The Motion to Implead and the Order to Show Cause was served on FLTC's
registered agent, the Corporation 'Ng Company, at 1209 Orange Street, Wilmington, D13,
46, The Corporation '!'rust Company thereafter forwarded the Motion to hplead and
the Order to Show Canso to PLTCs designated agent for proem, Larry Levinson, 13sq, nt
Troutman Sanders, LLP ("Troutman Firm"), The TromMum Firm Itself was also a named
defendant in the Motion to umplead, and was served with the Motion to upload and the Order to
Show Cause,
47, MS was also a named defendant in the Mellon to utnplead, and was served with
the Motion to upload and the Order to Show Cause,
48. , Despite their asserted representation of PLTC and actual knowledge of the
Motion to lmplead and the Order to Show Cause, neither the PAS Defendants nor the Tydings
Defendants responded to the Order to Show Cause on behalf of PLTC or otherwise retained
counsel on behalf of PLTC to respond to the Order to Show CaIlse.
9 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 10 of 37 Pagel D 51
49. As e result, only FL,TC failed to respond to the Order to Show Cause,' The other
Impled parties, including FM end the Troutman Firm, responded to (end continue to this day to
defend against) the proceedings supplementary In the Jackson Litlgetion, Yet, PM allowed Its
client to suffer a substantial Judgment.
50. On July 11, 2011, as a result of FLTC's failure to make an appearance, filo any
papers, or otherwise respond to tho Order to Show Cause, the court entered an Order Granting
Default Against Fundamental Long Term Caro, the, (the "Pura Default"), A true and correct
copy of the FI,TO Default Is attached as Exhibit 5,
51, On September 13, 2011, the Ciroult Court entered an Amended Final Judgment,
which Imposed liability upon PLTC In the amount °1$t 10 Million, A true end correct copy of
the Amended Flnol Judgment is initialled as Exhibit 6,
COUNT uuoAL K6Liquiencr, (Qui/Warns Firm, Ferrero, Valdez, ond Richardson)
52. THMI re,alleges and incorporates paragraphs one (1) to flfly,•one (51) as it Ntly
set forth herein.
53, In or about January 2007, the Q111114111'08 Defendants agreed to, and did in feet,
become counsel to THMI in the Jackson Litigation,
54. An attornoy.cliont relationship existed between THMI and the Quintairos
Defendants with respect to the acts end omissions described herein.
55. The Quintalros Defendants neglected a reasonable duty owed to THMI when they
withdrew their representation of THMI in the Jackson Litigation without seeking any actual
authority of THMI to do so,
10 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 11 of 37 PagelD 52
56, The Quintairos Defendants further neglected n reasonable duty owed to THMI
when they withdrew their representation of THMI In the Inekson Litigation without making
reasonably sure that their withdrawal would not result in prejudice to their olient, THMI,
57, Instead of obtaining consent for withdrawnl from their client, THMI, the
Quintalros Defendants took direction from non-olient third-partios—the PAS Defendants and the
Tydings Defendants—in otter derogation of the duties owed to THMI, in violation of the Florida
Rules of Professional Conduct, and unquestionably in confliot with their obligations to THMI,
58, The Quintoiros Defendants' conduct constituted n broach of their duty to exorcise
reasonable taro, skill, and diligence on THIVII's behalf W11011, without making sufficient efforts to
inibrm THMI or to secure any authority, thoy withdrew or caused to be withdrawn nil defense of
TkIMI on the eve of trial lit the Jaokson Litigation, failed to secure new counsel and effectively
resume any defense, allowed judgments to be entered against THMI, And then took absolutely no
nation to request rehenring, take on appeal, or request romittltur.
59, The Quintairos Defendants' negligence in withdrawing their representation
without any actual authority and without proper Attention to their client's rights constituted a
direct and proximate enlist) of loss to THMI,
60, TIM suffered damages in the amount of at least $55 Million,
WHERBFORB, Tams Health Management, Inc, demands judgment against Quintairos,
Prieto, Wood & Boyer, P,A, Thomas A, Valdez, Kevin W, Richardson, and Albert .1. Ferrero,
jointly and sevorolly, for compensatory damages, consequential damages, and special damages,
including, but not limited to, increased liabilities of THMI, the decreased value of the assets of
THMI, the loss of enterprise value of THMI, out.of-pooket fees, costs, and expenses attributable
and inouned or paid by THMI and the Trustee, all attributable fines, penalties, attorneys' fees,
II of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 12 of 37 PagelD 53
costs, damages due to the delay resulting from the cover-up• of the reasons for the withdrawal of
the defense of THMI, and expenses paid or incurred by THM1 pro-petition and for the value of
all of THMI's claims ogainst third parties that were not properly or timely pursued by TM,
along with pre-judgment and post-judgment interest, costs, and snob other relief this Court
deems just and proper,
COUNT BlqACP Air PrOINIAWY (Qtantalros Firm, Femora, Valdez, and flIchardson)
61. THMI ro,011w,9 and incorporates paragraphs one (1) to flfty,one (51) as If fully
set forth herein,
62,, The Quintairos Defendants owed a fiduciary duty to TIM to net as a reasonably
rodent person would not under the circumstances, including properly noting on THMf's behalf
with respect to the Jnokson Litigation,
63, The Quintairos Defendants neglected a reasonable duty owed to THMI when they
withdrew their representation of THMI In the Jnokson Litigation without seeking any actual
authority of TINT to do so,
64, The Quintairos Defendants further neglected a reasonable duty owed to THMI
when they withdrew their representation of THMI in the Jackson Litigation without making
reasonably sure Ihnt their withdrawal would not result In prejudice to THMI.
65. Instead of obtaining consent for withdrawal from THMI, the Quintairos
Defendants took direction from non•ollent third-parties, Including the FAS Defendants and the
Tydings Defentinnts,
66. The Quintairos Defendants' conduct constituted a breach of their fidueinry duties
to THMI when, without making sufficient efforts to inform THMI or to secure any authority,
they withdrew or caused to be withdrawn, all defense of T1dM1 on the eve of trial In the Jnokson
12 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 13 of 37 Page I D 54
Litigation, felled to swore new counsel and effeetively resume any dofonso, allowed judgments
to be entered against THMI end then took absolutely no notion to request rehearing, (eke en
appeal or request romiltihm
67, Tho Quinteiros Defendants' negligence in withdrawing their representation
without any natural tiothority and without proper attention to their ollont's rights was e direct and
proximate cease of loss to THMI,
68, THMI suffered &s in the mount of at !oast $55 Million,
WHERBFORB, Beth Ann Schemer, es Cheptor 7 Trustee of the estate of Fundamental
Long Term Care, Inc., and Trans Health Management, Inc,, dernand Judgment against
Quinteiros, Prieto, Wood & Boyer, P,A, Thomas A. Veldez, Kevin W, Richerdson, end Albert J,
Ferrara, jointly end severally, for compensatory dameges, consequential deranges, end speoltil
demeges, including, but not limited to, increased 'Minks of TIIMI, the docreesed value of the
assets of TNMI, the loss of enterprise value of THMI, out-of-pooket fees, costs, and expenses
attributable and incurred or peld by TI-IMI end the Trustee, ell Attributable Ones, penalties,
attorneys' foes, costs, chimps due to the delay resulting from the coveroup of the reasons for tho
withdrawal of the defense of 'anvil', and expenses peld or incurred by THMI proTetition end for
the value of all of TH1VII's dohs egal»st third miles that were not properly or timely pursued
by THMI, along with pro Judgment end post Judgment interest, costs, end such other relief this
Coon deems Just and proper.
COUNT III maimicTicp (Chapez.nuark, (,'recital and the Tydings Firm)
69. Tho Trustee and THMire,allogo end incorporeto paragraphs one (1) to flfty'one
(51) es If fhtly set forth heroin,
13 of22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 14 of 37 PagelD 55
70, The Tydings Defendants have represented to multiple courts and litigants that
they represent THMI and FLTC, and act as counsel for THMI and FLTC,
71. Additionally, the Tydings Defendants expressly directed and controlled the legal
representation of THMI and FLTC,
72. An attorney,,olient relationship existed between THMI and the Tydings
Defendants, and between PLTC and the Tydings Defendants,
73. The Tydings Defendants neglected a reasonable duty owed lo THMI when they
(Wooled the Quintairos Defendants to withdraw any defense ofTHMT in the 7ftekson Litigation
without seeking any authority ofTHMI to do so.
74. The Tydings Defendants further neglected a reasonable duty owed to THMI when
they directed the Quintalros Defendants to withdraw any defense of THMI in the Jackson
Litigation without making reasonably sure that such withdrawal would not result in prejudice to
their client, THMI,
75, Tho Tydings Defendants neglected a reasonable duty to FLTC when they failed to
respond to the Order to Show Cause on behalf of PLTC or otherwise direct a response be filed on
FLTC's behalf,
76. The Tydings Defendants' conduct constituted a breach of their duty to (=else
reasonable care, skill, and diligence On their clients' behalf when, without making suffielent
efforts to Inform THMI or to secure any authority, they withdrew or caused to be withdrawn, all
defense (wawa on the eve of trial in the Jackson Litigation, failed to secure new counsel and
effectively resume any defense of the Jackson Litigation, allowed a JO(1801011( to be entered
against THMI, look absolutely no action to request rehearing, take an appeal or request
14 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 15 of 37 PagelD 56
reminitur, felled to respond to the Order to Show Cause, and allowed a judgment to be entered
Against FLTC,
77, The negligence of the Tydings Defendants in directing the withdrew& of the
representation of THMI without any actual authority end without proper attention to their clients'
rights was a direct end proximate cause of loss to THMI.
78. The negligence of the Tydings Defendants in failing to respond to the Order to
Show Came on behalf of FLTC or otherwise directing a response be flied on FLTC's behalf was
II direet end proximate cause of loss to FLTC,
79. TINE suffered damages of at least $55 Million.
80, FLTC suffered damages of at least $110 Million,
WHBREFORE, Beth Ann Schauer, as Chapter 7 Tnistee of the estate of Fundamental
Long Term Care, Inc., and Trans Health Management, Ine, demands judgment against Tydings
& Rosenberg LLP, Mario Ilona Chavez.-Ruerk, end Alan Oroohal, jointly and severally, for
compensatory chimps, consequential damages, and special damages, including, but not limited
to, 'mused liabilities of THMI, the decreased value of the assets of THMI, the loss of
enterprise value of THMI, out,of-pooket fees, costs, and expenses attributable end incurred or
paid by THMI and the Trustee, all attributable fines, penalties, attorneys' fees, costs, damages
due to the delay resulting from the cover-up of the reasons for the withdrawal of the defense of
TI-IM!, and expenses paid or incurred by THMI pro.potition end for the value of alt of THMI's
olAin18 against third parties that wore not properly or timely pursued by THMI, along with pre-
judgment end post-judgment interest, costs, end such other relief this Court deems just and
proper.
15 of 22
Case 8:12-cv-01864-MSS-MAP Document 2 Filed 08/15/12 Page 16 of 37 PagelD 57
couNT ly- VIDIJcleM DSITY (Chavez-Miork Groohat, find the Tydings Firm)
81, The Tnisteo and THMI re-allege and incorporate paragraphs ono (1) to fifty-one
(51) as If fully set forth herein. ,
82, The Tydings Defendants owed a fiduciary duty to THMI to AO( as would a
reasonably prudent person under the circumstances, including properly acting on THMI's behalf
in defense of the Jackson Litigation,
83, The Tydings Defendants owed a fiduciary duty to FLTC to net as would a
reasonably prudent person under the cirotnstanees, including properly acting on FLTC's behalf
as its legal counsel and in responding to the Order to $how Cause,
84, The Tydings Defendants neglected a reasonable duly owed to THMI when they
directed the withdrawal of any defense of THMI in the Jackson Litigation without seeking any
actual authority of THMI to do so and without proper attention to their Wants' rights,
85, The Tydings Defendants neglected a reasonable duty owed to THMI and PLTC
when they directed the withdrawal of any defense of THMI in the Jackson Litigation without
making reasonably sure that withdrawal would not result in prejudice to THMI, and ultimately,
FLTC,
86, The Tydings Defendants neglected a reasonable duty owed to PLTC when they
failed to respond to the Order to Show Cause on behalf of FLTC or otherwise direct a response
be filed on FLTC's behalf,
87, The Tydings Defendants' conduct constituted a breach of their fiduciary duties to
mml and FLTO when, without making sufficient efforts to Inform THMI or to secure any
authority, they withdrew or caused to be withdrawn, all defense of THMI on the eve of trial in
the Jackson Litigation, failed to secure new counsel and effectively resume any defense of the
16 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 17 of 37 Pagel D 58
Jookson Litigation, allowed a judgment to be entered against TFIMI, took absolutely no notion to
request rehearing, teke en appeal or request =Witty, failed to respond to the Order to Show
Cause, and allowed n judgment to be entered against PLIC,
88, The Tydings Defendants' conduct was n direct end proximate. 001,1$0 of loss to
'TFIMI and FLTC,
89, THMI has suffered damages in the amount of et least $S5
90, FLTO has suffered thanes in the mount of at lost $110 Million,
WHEREFORE, Beth Ann Seharrer, as Chapter 7 Trustee of the estate of Fundamental
Long 'form Caro, Tne,, and Trans Health Management, Inc, demand Judgment against Tydings
Rosenberg LI,P, Marie Ellemt Chavez-Ruarts, and Alan Crochet, Jointly and moray, for
compensatory damages, consequential damages, and special damages, including, but not limited
to, Increased liabilities of TIM, the decreased value of the assets of THMI, the loss of
enterprise value of THMI, out,oflookot fees, costs, and expenses attributable and incurred or
paid by THMI and the Trustee, all attributable fines, penalties, attorneys' fees, costs, (Images
due to the delay resulting from the cover-up of the reasons for the withdrawal of the defense of
THMI, end expenses paid or incurred by TM pre-petition and for the value of all of TEMP s
claims against third parties that wore not properly or timely pursued by THMI, along with pre-
judgment end post-judgment Interest, coats, end such other relief this Court deems just and
proper,
17 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 18 of 37 Pagel D 59
91?1\l'r V — LJOAL 1!.40.11)12ACTICI1 (Zook and Andarson)
91, The Trustee and THMI re-alleges and incorporates paragraphs one (1) to fifty-one
(51) as if fully set forth herein,
92. Zaok and Anderson have consistently represented to multiple courts and litigants
that they represent THMI and PLOT and not as counsel for THMI and FLTC.
93, Indeed, Ms, Anderson was identified in the Withdrawal Order as the contact for
Ritmo pleadings and proceedings in the Jackson Litigation,
94. An attorney-client relationship exists between &A and Anderson and THMI,
95, An attorney-client relationship exists between Zack and Anderson and PLTO,
96, Zack and Anderson neglected a reasonable duty owed to THMI when they
directed the Quintairos Defendants to withdraw any defense ofTHMI in the Jackson Litigation
without seeking any authority of TI-IMI to do so.
97, Zack and Anderson narther neglected a reasonable duty owed to THMI when they
directed the Quintairos Defendants to withdraw any defense of THMI in the Jackson Litigation
without making reasonably sure that such withdrawal would not result in prejudice to their client,
THMI, and ultimately, PLTC
98, Zack and Anderson neglected a reasonable duty to FLTO when they failed to
respond to the Order to show Cause on behalf of FLTO or otherwise direct a response be filed on
PLTC's behalf,
99, Zack and Anderson's conduct constituted a breach of their duty to exorcise
reasonable care, skill, and diligence on their Ants' behalf when, without making suffiolent
efforts to inform THMI or to secure any authority, they withdrew or ()Mind to be withdrawn, all
defense of THM1 on the eve of trial in the Jackson Litigation, failed to secure now 00011501 and
18 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 19 of 37 P agel D 60
effectively resume any defense of the Jackson Litigation, allowed a Judgment to be entered
against THMI, took absolutely no action to request rehearing, take on appeal or request
remittitur, foiled to respond to the Order to Show Cause, and allowed a Judgment to be entered
against FLTC,
100, The negligence of Zack and Anderson in directing the withdrawal of the
representation of THMI without any actual authority and without proper attention to their °lints'
rights was a direct and proximate cause of loss to THMI,
101, The negligence of' Zook and Anderson In failing to respond to the Order to Show
Cause on behalf of RTC or otherwise directing a response be filed on FLIC's behalf was a
direct and proximate cause of loss to TUC,
102, THMI suffered damages of at least $55 Million,
103, FLTO suffered damages of at least $110 Million,
WHBRBFORB, Beth Ann salami., as Chapter 7 Trustee of the estato of Fundamental
Long Term Care, Ina., and Trans Health Management, Inc. demands Judgment against Christine
Zook and Kristi Anderson, Jointly and severally, for compensatory damages, consequential
damages, and special damages, including, but not limited to, Increased nobilities of THMI, the
decreased value of the assets of THMI, the loss of enterprise value of THMI, out-of-pooket fees,
costs, and expenses attributable and incurred or paid by THMI and the Trustee, all attributable
fines, 'manias, attorneys' fees, costs, (11111111M due to the delay resulting from the cover-up of
the reasons for the withdrawal of the defense of THMI, and expenses paid or incurred by THMI
pre-petition and for the value of all ofTHMI's claims against third parties that wore not properly
or timely pursued by TRMI, along with pro Judgment and post-judgment Interest, costs, and such
other relief this Court deems appropriate,
19 of22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 20 of 37 PagelD 61
COUNT nityAcii OIMMJCIA4Y,MITY, (R4S, Zack, and Anderson)
104, The Trustee and THMI re•allege and incorporate paragraphs ono (1) to filly-one
(5l) as if thlly set forth herein,
105, The VA8 Defendants owed a fiduciary duty to TIM to net as would a reasonably
prudent person under the cirownstances, including properly acting on THMI's behalf in defense
of the Jaokson Litigation,
106, The FAS Defendants owed a fiduciary duty to FLTC to act as would a reasonably
prudent person under the circumstances, including properly acting on VI,TC's behalf as its logal
counsel and in responding to the Order to Show Cause,
107, The PAS Defendants neglected a reasonable duty owed to THMI when they
directed the withdrawal of any defense of THM1 In the Jackson Litigation without seeking any
actual authority of THMI to do so and without proper attention to their clients' rights,
108, The MS Defendants neglected a reasonable duty owed to THMI and FLTC
when they directed the withdrawal of any defense of THMI in the Jackson Litigation without
making reasonably sure that withdrawal would not result in prejudice to THMI, and ultimately,
FLTO,
109, The FAS Defendants neglected a reasonable duty owed to FLTC when they filled
to respond to the Order to Show Cause on behalf of FLTC or otherwise direct a response be filed
on FLTC's behalf,
110, The FAS Defendants' conduct constituted a bread of their fiduciary duties to
THM1 and FLTC when, without making sufficient efforts to infom THMI or to secure any
authority, they withdrew or (UMW to be withdrawn, all defense of TJIM1 on the eve of trial in
the Jackson Litigation, failed to secure now counsel and ()Wean/ay resume any defense of the
20 of 22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 21 of 37 PagelD 62
Jackson Litigation, allowed a Judgment to be entered against THMI, took absolutely no notion to
request rehearing, take an appeal or request =Minn', failed to respond to the Order to Show
Cause, and allowed a Judgment to be entered against FLTC,
111, The FAS Defendants' conduct was a direot and proximate cause of less to THMI
and FLTC,
112, TINT has suffered damages in the amount of at least $55 Million,
113, FLTC has suffered damages In the amount of at least $110 Million.
WHERIWORE, Beth Ann &horror, as Chapter 7 Trustee of the estate of Fundamental
Long Term Care, tno,, and Trans Health Management, Inc, demand Judgment against
Fundamental Administrative Services, LLC, Christine Zook and Xriell Anderson, Jointly and
severally, for compensatory damages, consequential damages, and special damages, ineluding,
but not limited to, increased liabilities of THMI, rho decreased value of the assets of THMI, the
loss of enterprise value of THMI, out-of-pooket fees, coats, and expenses attributable and
Mowed or paid by TIM and the Trustee, all attributable fines, penalties, attorneys' fees, costa,
damages due to the delay resulting from the cover-up of the reasons for the withdrawal of the
defense of THMI, and expenses paid or incurred by THMIpre-petillo» and for the value of all of
TiIMI's olefins against third parties that were not properly or timely pursued by THIVII, along
with pre-Judgment and post-Judgment interest, costs, and such other relief this Court deems Just
and proper.
21 of22
Case 8:12-cv-01854-MSS-MAP Document 2 Filed 08/15/12 Page 22 of 37 PagelD 63
pEtY10111), l!pit JURY TAT41/
Plaintiffs hooky demand trial by Pry of all balm so trlabla.
SHUMAKER, LOOP & KENDRICK, LLP Dotods July 19,2012
3y; Stovon Esq, Florida Bar No, 856290 101 8, Kormady Blvd„ Sta, 2800 Tampa, Florida 33602 Pliona; (813) 2291600; Fax; (813) 2291660 Counsel for Beth /Inn Marro., as Chapter 7 rrustee, and for Trans Health Management, MO,
22 of 22
EXHIBIT "C"
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 1 of 12 PagelD 1956
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BETH ANN SCHARRER, as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc.; and TRANS HEALTH MANAGEMENT, INC,;
Plaintiffs,
v. Case. No, 8:12-cv-01854-MSS-MAP
FUNDAMENTAL ADMINISTRATIVE SERVICES, LLC; et al.;
Defendants,
PLAINTIFFS' LIMITED MOTION FOR RECONSIDERATION OF ORDER GRANTING CHRISTINE ZACK'S MOTION TO DISMISS (DKT, 85), AND MOTION FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT,
AND INCORPORATED MEMORANDUM OF LAW
Plaintiffs, Beth Ann Scharer, as Chapter 7 Trustee (the "Trustee") for the Bankruptcy
Estate of Fundamental Long Term Care, Inc, ("Debtor"), and Trans Health Management, Inc.
("THMI"), hereby move the Court (i) for limited reconsideration of its Order granting
Defendant, Christine Zack's Motion to Dismiss (Dkt. 85) so that dismissal is without prejudice
in accordance with Eleventh Circuit precedent, and (ii) for an extension of time of ninety (90)
days within which to file an Amended Complaint against Ms. Zack while discovery proceeds in
the Bankruptcy Court. In support thereof, the Plaintiffs state:
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 2 of 12 PagelD 1957
INTRODUCTION
1. On September 10, 2013, this Court dismissed Defendant, Christine Zack, for
lack of personal jurisdiction (the "Dismissal Order"). (Dkt. 85). In the Dismissal Order, the
Court permitted the Plaintiffs "up to and including October 4, 2013 to file an Amended
Complaint." Id, at p. 11. The Court also stated that "[ijf Plaintiffs decide not to file an
Amended Complaint, the Court will dismiss the case against Defendant Christine Zack with
prejudice without further notice from the Court," Id, at p. 11-12 (emphasis added).
2, The Plaintiffs seek limited reconsideration of the Dismissal Order and
respectfully request this Court revise the Dismissal Order to a dismissal without prejudice in
accordance with Eleventh Circuit precedence, to allow Plaintiffs the option of re-filing their
claims against Ms. Zack in another jurisdiction.
3. The Plaintiffs also seek an extension of time of ninety (90) days to file an
Amended Complaint as to Ms. Zack. This Court precluded jurisdictional discovery of Ms.
Zack at the outset of this case, However, the Chapter 7 Trustee continues to conduct Rule
2004 discovery in the bankruptcy case of Fundamental Long Term Care, Inc., which
discovery encompasses potential causes of action against a number of parties, including Ms.
Zack.
4. In August and September, 2013, attorneys who purported to represent THMI
produced hundreds of thousands of pages of documents that were first ordered to be
produced by the Bankruptcy Court on October 18, 2012, Additionally, the Trustee continues
to seek production of documents from Fundamental Administrative Services, LLC ("FAS"),
Ms. Zack's employer, in accordance with the Bankruptcy Court's October 29, 2012 Order
SLIK_TANCIII662290v1 2
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 3 of 12 PagelD 1958
Granting Motion for Rule 2004 Production of Documents from Fundamental Administrative
Services (the "FAS Production Order").
5. The Trustee believes the recently produced discovery from law firms and the
expected further production from FAS will reveal additional facts that will establish this
Court's jurisdiction over Ms. Zack. Accordingly, the Plaintiffs request an additional ninety
(90) days to file an Amended Complaint against Ms. Zack while the Rule 2004 discovery
continues in the Bankruptcy Court.
BASIS FOR LIMITED RECONSIDERATION
6. The Plaintiffs request reconsideration of this Court's Dismissal Order such
that the claims against Ms. Zack are dismissed without prejudice rather than with prejudice.
Rule 54(b) of the Federal Rules of Civil Procedure allows a court to revise any order that
"adjudicates fewer than all the , „ liabilities of fewer than all parties , at any time before
entry of judgment adjudicating all the claims and all the parties' liabilities." See also Fed.
R. Civ. P. 59(e) (permitting alteration or amendment of a judgment within twenty-eight days
of entry); Fed. R. Civ. P. 60(b)(6) (permitting relief from final order for "any other reason
that justifies relief" if filed within one year). The purpose of a motion for reconsideration is
to correct manifest errors of law, to present newly discovered evidence, or to prevent
manifest injustice. Horowitch v. DiamondAircraft Indus. Inc., 2009 WL 1537896, at *3
(M.D. Fla. June 2, 2009).
7, The Dismissal Order provides that "[i]f Plaintiffs decide not to file an
Amended Complaint, the Court will dismiss the case against Defendant Christine Zack with
prejudice without further notice from the Court." See Dkt. 85 at pg. 11-12 (emphasis added).
SLK_TAM:111662290vI 3
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 4 of 12 PagelD 1959
This Court should reconsider its Dismissal Order because dismissal of a defendant from an
action for lack of personal jurisdiction must be without prejudice, Posner v. Essex Ins. Co.,
Ltd., 178 F.3d 1209, 1221 (11th Cir, 1999) (per curiam) (instructing the district court to alter
its order for dismissal for lack of personal jurisdiction to without prejudice, so as not to
preclude other litigation on the merits in other jurisdictions) (citing Arrowstnith v, United
Press Int'l, 320 F,2d 219, 221 (2d Cir, 1963) ("A dismissal for lack of jurisdiction . , does
not preclude a subsequent action in an appropriate forum.")); see also Canty v. Fly's
Electronics, Inc., 736 F. Stipp, 2d 1352, 1370 (N,D, Ga, 2010); Matthews v, Brookstone
Stores, Inc., 469 F. Supp. 2d 1056, 1068 (S.D. Ala. 2007).
8, Whereas a dismissal under Rule I 2(b)(6) for failure to state a claim may be
with prejudice, a court that determines it lacks jurisdiction under Rule 12(b)(2) must dismiss
without prejudice. See Rogers v, Nacchio, 241 Fed. Appx. 602, 610 n.1 1 (11th Cir. 2007)
(affirming the district court's dismissal without prejudice of defendants over whom the
district court lacked personal jurisdiction and the dismissal with prejudice of defendants over
whom the district court had personal jurisdiction but had concluded that those claims were
without merit); see also Republic of Panama v, BCCI Holdings (Lux.) S,A., 119 F.3d 935,
940 (11th Cir, 1997) (distinguishing between dismissals under Rule 12(b)(2) and 12(b)(6))
(citations omitted),
9, When a court lacks personal jurisdiction over a defendant, it is without power
to dismiss the claims with prejudice because doing so would necessarily involve exercising
jurisdiction. See Warren v. Pearson, 195 F.2d 300, 301 (5th Cir. 1952) ("[T]he provision in
the order for dismissal with prejudice exceeded the power of the court."). Therefore,
"dismissals that do not reach the merits because of a lack of jurisdiction , , must be
SLK JAM:111662290v1 4
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 5 of 12 PagelD 1960
considered to have been dismissed without prejudice." 9 Charles Alan Wright, Arthur R.
Miller, Federal Practice and Procedure § 2373 & n.38 (3d ed. 2010) (citing inter alia
Sanderson v. Postal Life & Cas. Ins. Co., 2 F.R.D. 203, 204 (W.D. Mo. 1941) ("It would
seem obvious that if the case is dismissed because the court has no jurisdiction, certainly
it cannot be dismissed with prejudice, since that involves the exercise of jurisdiction.")).
10, Additionally, the Court should revise its Dismissal Order to dismissal without
prejudice because not doing so would be manifestly unjust to the Plaintiffs, who would be
barred from bringing an action against Ms. Zack in any jurisdiction, See Am. Needle and
Novelty Co. v. Schuessler Knitting Mills, Inc,, 379 F.2d 376, 378 (7th Cir. 1967) (determining
that it was a "fundamental infirmity" for the district court to dismiss claims with prejudice
after determining that it lacked jurisdiction because, as a final judgment, defendants could
then assert res judicata or collateral estoppel in subsequent actions). A dismissal without
prejudice would allow Plaintiff to have their claims against Ms. Zack litigated on the merits
in a forum where personal jurisdiction can be obtained. See Morris v. SSE, Inc., 843 F,2d
489, 496 n.11 (1 1 th Cir. 1988); see also Miami Breakers Soccer Club, Inc. v, Women's
United Soccer Ass'n, 140 F. Supp, 2d 1325, 1331 (S.D. Fla. 2001) (noting that plaintiff would
not be prejudiced by the court's finding that it lacked personal jurisdiction because dismissal
was "without prejudice to re-file where jurisdiction [was] proper").
11. Plaintiffs should not be barred from re-filing claims in another forum that has
jurisdiction over Ms. Zack, Posner, 178 F.3d at 1221 (dismissal for lack of personal
jurisdiction is without prejudice and "does not preclude further litigation of Ethel claims on
the merits.") (citation omitted); Family Watchdog, LLC v. Schweiss, 2009 WL 2151152, at *7
(M.D. Fla. July 13, 2009) (dismissing defendants for lack of personal jurisdiction "without
SLK_TAM:111662290v1 5
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 6 of 12 PagelD 1961
prejudice to Plaintiff pursuing them in another jurisdiction"). Because dismissing Ms. Zack
with prejudice would be error and would result in manifest injustice, the Plaintiffs
respectfully request this Court reconsider its Dismissal Order such that the claims against Ms.
Zack will be dismissed without prejudice if the Plaintiffs choose not to file an Amended
Complaint.
BASIS FOR EXTENSION OF TIME
TO POTENTIALLY FILE AMENDED COMPLAINT
Background
l2. On July 12, 2012, the Bankruptcy Court entered its Omnibus Order
Establishing Discovery Procedures and Protocol for the Production of Documents and
Examination of Witnesses (the "Omnibus Discovery Order"),1 pursuant to which the
Bankruptcy Court authorized the Trustee to take the examination of and seek document
production from Ms. Zack and FAS, among others.
13. In response to a Subpoena Duces Tecum, however, Ms. Zack produced no
documents. Instead, Ms. Zack claimed all responsive documents were solely in FAS's
possession, despite Ms. Zack's admitted access to and control of such documents?
Following a motion to compel by the Trustee, the Bankruptcy Court ruled that before seeking
production directly from Ms. Zack, the Trustee should seek production from FAS.
14. In hirn, FAS has complied with its production obligations, notwithstanding a
number of Bankruptcy Court orders outlining such obligations. FAS has not produced "all
books and records (including litigation files) relating to the Debtor or THMI that are in its
i Case No. 8:11-bk-022258 at Dkt. 216. 2 Case No, 8:1 l-bk-022258 at Dkt. 280, A copy of Ms. Zack's Motion for Protective Order is attached as
Exhibit I.
SLK_TAM:ll I 662290v I 6
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 7 of 12 PagelD 1962
possession, custody, or control," as required by the FAS Production Order. Accordingly, on
August 30, 2013, the Trustee filed a Motion to Compel against FAS, seeking full compliance
with the FAS Production Order and a number of other discovery-related orders by the
Bankruptcy Court, including a March 19, 2013 Memorandum Opinion on Attorney-Client
Privilege and Work Product Issues (the "Privilege Memorandum") that, over the objection of
FAS, required production of (i) any communications between Trans Healthcare, Inc. (and
the THI Receiver) and the law firms representing THI and THMI in the Nursing Home
Cases; (ii) any communications between FAS and the law firms representing THI and THMI
(but not communications solely between FAS and the THI Receiver); (iii) communications
between the parties to the January 5, 2012 Settlement Agreement (and their lawyers) with
respect to the defense of the Nursing Home Cases; and (iv) copies of the litigation files
(including any attorney work product) for the Nursing Home Cases.3
15. At a hearing on September 16, 2013, the Bankruptcy Court granted the
Trustee's Motion to Compel production of documents from FAS, stating that it appeared that
FAS had not complied with the FAS Production Order, Accordingly, the Bankruptcy Court
required FAS, in conjunction with its outside counsel, to review all documents in its
possession, custody or control that may be responsive to the FAS Production Order, and
required FAS to then, on or before October 7, 2013, file a certification that specifically sets
forth (i) the extent of FAS's review to determine what documents are in its possession,
3 In re Fundamental Long Term Care, Inc., 489 B.R. 451 (Bankr. M.D. Fla, 2013) reconsideration denied, 493 B.R. 620 (Bankr. M.D. Fla, 2013), Additionally, on June 17, 2013, the Bankruptcy Court entered its Order on Trustee's Third Motion to Compel (the "June 17 Order"), wherein the Bankruptcy Court again ordered that all documents be produced to the Trustee, and rejected potential additional objections to production based upon: (i) the "pending proceeding" rule, (ii) stays of discovery in other courts, and (iii) the common interest and joint defense privileges involving someone other than the Trustee and THMT, While Ms. Zack was initially named in the June 17 Order, she was removed on reconsideration because the Trustee had not specifically sought relief against Ms. Zack or FAS in the original motion, The Trustee has since sought such relief against FAS.
SLK_TAM:111662290v1 7
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 8 of 12 PagelD 1963
custody, or control that relate to THMI in any fashion, (ii) the results of FAS's review, and
(iii) the reasons such documents have not been produced to the Trustee,4
16, FAS and Ms, Zack have similarly impeded the Trustee from obtaining
discovery from Kristie Anderson, FAS's former in-house counsel, including the filing of a
lawsuit by FAS in the District of Maryland that resulted in FAS being sanctioned by the
Bankruptcy Court for interfering with the administration of the estate. FAS and Ms, Zack's
objections during Ms. Anderson's Rule 2004 examination on September 19, 2013 to preclude
Ms. Anderson from testifying has resulted in the need for the Trustee to file another motion
to compel.
Good Cause for Extension of Time
17. Rule 6 of the Federal Rules of Civil Procedure provides, in relevant part:
When an act may or must be done within a specified time, the court may, for good cause, extend the time with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires.
Fed, R. Civ. P. 6(b)(1)(A). Thus, the Court in its discretion may order the deadline for
filing an amended complaint in this case enlarged if a request is made, as in this case,
before the original time or its extension expires.
18. Here, good cause exists to extend the time within which the Plaintiffs may file
an Amended Complaint against Ms. Zack to allow the Trustee to continue her investigation
and discovery in the Bankruptcy Court, Indeed, "`[a] plaintiff faced with a motion to dismiss
for lack of personal jurisdiction is entitled to reasonable discovery, lest the defendant defeat
4 A true and correct copy of the Bankruptcy Court's order and the transcript excerpt of the Bankruptcy Court's oral ruling on the Motion to Compel is attached as Exhibit 2.
SLK JAM:111662290v1 8
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 9 of 12 PagelD 1964
the jurisdiction of a federal court by withholding information on its contacts with the
forum.'" Mother Doe I v, Al ltdaktoum, 632 F. Supp. 2d 1130, 1145 (S.D. Fla. 2007) (citing
Diamond Chem. Co. v. Atofina Chems., Inc., 268 F, Supp. 2d 1, 15 (D,C. Cir. 2003)), The
Eleventh Circuit favors jurisdictional discovery before dismissing a defendant for lack of
personal jurisdiction. Majd—Pour v. Georgic-ma Cmty. Hosp., Inc. ,, 724 F.2d 901, 903 (11th
Cir. 1984) ("Although the plaintiff bears the burden of proving the court's jurisdiction, the
plaintiff should be given the opportunity to discover facts that would support his allegations
of jurisdiction,"); see also Eaton v. Dorchester Dev,, 171C. , 692 F.2d 727, 731 (11th Cir.
1982).
19. The Trustee expects the hundreds of thousands of pages of documents
recently produced as well as the documents expected to be produced by FAS to reveal Ms.
Zack's full participation in litigation in Florida and the extent of the duties she owed to
THMI, The Trustee should be provided time to receive, review, and analyze such production
prior to amending Plaintiffs' complaint against Ms, Zack in this case.
20, Moreover, the Bankruptcy Court's Privilege Memorandum precludes the
Plaintiffs from disclosing to third parties any of the documents obtained in accordance with
the Privilege Memorandum without consent or further order of the Bankruptcy Court. Thus,
once all documents are received, reviewed, and analyzed for relevance to this case, the
Plaintiffs must then seek a ruling by the Bankruptcy Court as to whether such documents
may be disclosed, remain confidential, or otherwise be submitted to the Court under seal.
21. Accordingly, there is good cause to extend the deadline for the Plaintiffs to
file an Amended Complaint by 90 days, both to allow Rule 2004 discovery in the Bankruptcy
SLK_TAM:111662290v1 9
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 10 of 12 PagelD 1965
Court to continue and to allow time for the Court to consider and act upon the Trustee's
request for referral to the Bankruptcy Court.
Ms. Zack will not be prejudiced by an extension of time
22, Ms. Zack will not be prejudiced by providing the Plaintiffs an extension of
time to file an Amended Complaint against her, First, FAS has filed a motion to stay this case
pending resolution of "critical related matters" in the Bankruptcy Court. See Dkt, 86. While
the Trustee opposes the requested stay, the Trustee has requested this Court refer this case to
the Bankruptcy Court for pretrial proceedings. If this Court stays this case, then any
purported delay caused by additional time for filing an Amended Complaint against Ms.
Zack would coincide with the delay imposed by such stay. If this Court refers this case to the
Bankruptcy Court, then any purported delay caused by additional time for filing an Amended
Complaint against Ms, Zack will allow the case to be referred and will allow the Bankruptcy
Court to decide whether the case should proceed or be stayed. In the meantime, the
Bankruptcy Court will also rule upon all Rule 2004 discovery issues that have arisen and
may arise.
23, Second, if a stay is not entered and this case remains in this Court, dismissal
of Ms, Zack is subject to reconsideration at any time pursuant to Rule 54 until all claims in
this case are adjudicated, At the very least, dismissal of Ms. Zack is subject to
reconsideration until one year after entry of the Dismissal Order pursuant to Rule 60 if new
evidence is discovered, A 90-day extension of time to allow continued discovery prior to the
Plaintiffs potentially amending the complaint against Ms. Zack is less than the time periods
provided in these rules.
SLK_TAM://1662290y I 10
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 11 of 12 PagelD 1966
WHEREFORE, the Plaintiffs respectfully request this Court enter an order (i) granting
this Motion, (ii) amending this Court's Dismissal Order to provide that any dismissal of Ms.
Zack for lack of personal jurisdiction is without prejudice; (iii) extending the time for an
additional ninety (90) days within which the Plaintiffs may file an Amended Complaint against
Ms, Zack, and (iv) granting such other and further relief as this Court deems necessary and
proper.
Respectfully submitted,
SHUMAKER, LOOP & KENDRICK, LLP
By: /s/ Seth P. Traub STEVEN M. BERMAN, ESQ. Florida Bar No, 856290 SETH P. TRAUB Florida Bar No, 022088 101 E. Kennedy Blvd., Suite 2800 Tampa, FL 33602 Phone: (813) 229-7600; Fax: (813) 229-1660 Counsel for• the Plaintiffs
LOCAL RULE 3.01(G) CERTIFICATION
On October 4, 2013, the undersigned counsel for the Plaintiffs conferred with counsel
for Ms. Zack in a good faith effort to resolve the Trustee's request for referral to the Bankruptcy
Court. Paul Quinn stated that Ms. Zack does not consent to any of the relief requested in this
Motion.
Is/ Seth P. Traub Counsel for the Plaintiffs
SLK_TAM:41662290v I 11
Case 8:12-cv-01854-MSS-MAP Document 95 Filed 10/04/13 Page 12 of 12 PagelD 1967
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 4, 2013 a true and correct copy of the
foregoing was furnished via CM/ECF Notice to all counsel of record.
/s/ Seth P. Traub Counsel for the Plaintifti
SLK_TAM:#1662290v1 12
EXHIBIT "I)"
Case 8:12-cv-01855-JSM-MAP Document 19 Filed 08/31/12 Page 1 of 2 PagelD 72
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BETH ANN SCHARRER, as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc.; and TRANS HEALTH MANAGEMENT, INC,
Plaintiffs,
v. Case. No, 8:12-cv-01855-JSM-MAP
FUNDAMENTAL ADMINISTRATIVE SERVICES, LLC; et al,
Defendants.
NOTICE OF PENDENCY OF RELATED ACTIONS
In accordance with Local Rule 1.04(d), the undersigned certifies that the instant action:
X IS related to pending or closed civil or criminal case(s) previously filed in this Court or any other Federal or State court, or administrative agency as indicated below:
8:10-cv-02937-VMC-TGW Jackson-Platts v. Trans Health Management, Inc. et al
8:1 I -cv-01369-SDM-TBM Estate of Juanita Amelia Jackson v. Trans Health Management, Inc, et al
8: I I -cv-01370-SDM-TOW Estate of JuanitaAntelia Jackson v. Trans Health Management, Inc. et al
8:12-cv-01854-MSS-MAP Scharrer et al v. Fundamental Administrative Services, LLC et al
IS NOT related to any pending or closed civil or criminal case filed with this Court, or any other Federal or State court, or administrative agency.
Case 8:12-cv-01855-JSM-MAP Document 19 Filed 08/31/12 Page 2 of 2 PagelD 73
I further certify that I will serve a copy of this NOTICE OF PENDENCY OF RELATED
ACTIONS upon each party no later than 14 days after appearance of the party.
Dated: August 31, 2012,
Respectfully submitted,
SHUMAKER, LOOP & KENDRICK, LLP
By: /s/ Seth P. Traub STEVEN M. BERMAN, ESQ, Florida Bar No. 856290 sberman@slk-law,com SETH P. TRAUB, ESQ. Florida Bar No, 022088 straub@slk-law,com 101 East Kennedy Blvd, Suite 2800 Tampa, Florida 33602 Phone: (813) 229-7600; Fax: (813) 229-1660
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 31, 2012 a true correct copy of the foregoing was
electronically filed with the Clerk of the Court using the CM/ECF system, which will send a
notice of electronic filing to all counsel of record.
Is! Seth P, Traub
Case 8:12-cv-01854-MSS-MAP Document 40 Filed 08/31/12 Page 1 of 2 PagelD 188
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BETH ANN SCHARRER, as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc.; and TRANS HEALTH MANAGEMENT, INC.
Plaintiffs,
v. Case. No. 8:12-cv-01854-MSS-MAP
FUNDAMENTAL ADMINISTRATIVE SERVICES, LLC; et al.
Defendants,
NOTICE OF PENDENCY OF RELATED ACTIONS
In accordance with Local Rule 1.04(d), the undersigned certifies that the instant action:
X IS related to pending or closed civil or criminal case(s) previously filed in this Court or any other Federal or State court, or administrative agency as indicated below:
8;10-cv-02937-VMC-TGW Jackson-Plaits v. Trans Health Management, Inc. et al
8: 11-cv-01369-SDM-TBM Estate of Juanita Amelia Jackson v, Trans Health Management, Inc, et al
8: 11-cv-01370-SDM-TGW Estate of Juanita Amelia Jackson v, Trans Health Management, Inc. et al
8:12-cv-01855-JSM-MAP Scharrer et al v. Fundamental Administrative Services, LLC et al
IS NOT related to any pending or closed civil or criminal case filed with this Court, or any other Federal or State court, or administrative agency.
Case 8:12-cv-01854-MSS-MAP Document 40 Filed 08/31/12 Page 2 of 2 PagelD 189
I further certify that I will serve a copy of this NOTICE OF PENDENCY OF RELATED
ACTIONS upon each party no later than 14 days after appearance of the party.
Dated: August 31, 2012.
Respectfully submitted,
SHUMAKER, LOOP & KENDRICK, LLP
By: /s/ Seth P, Traub STEVEN M. BERMAN, ESQ, Florida Bar No. 856290 [email protected] SETH P. TRAUB, ESQ, Florida Bar No, 022088 [email protected] 101 East Kennedy Blvd, Suite 2800 Tampa, Florida 33602 Phone: (813) 229-7600; Fax: (813) 229-1660
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 31, 2012 a true correct copy of the foregoing was
electronically filed with the Clerk of the Court using the CM/ECF system, which will send a
notice of electronic filing to all counsel of record,
Is/ Seth P. Traub
EXHIBIT "E"
Electronic Case Filing I U.S. District Court Middle District of Florida Page 1 of 15
U.S. District Court Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE ft: 8:12-cv-01854-MSS-MAP
Date Filed: 08/15/2012 Jury Demand: None Nature of Suit: 360 PI: Other Jurisdiction: Federal Question
Schaffer et al v. Fundamental Administrative Services, LLC et al Assigned to: Judge Mary S. Scriven Referred to: Magistrate Judge Mark A. Pizzo Case in other court: State Court/10th Jud/ Polk County, 53-
2012-CA-004992 Cause: 28:1331 Fed. Question: Personal Injury
Plaintiff
Trustee Beth Ann Scharrer as Chapter 7 Trustee for the Bankruptcy Estate of Fundamental Long Term Care, Inc,
Plaintiff
Trans Health Management, Inc.
represented by Steven M. Berman Shumaker, Loop & Kendrick, LLP 101 E Kennedy Blvd - Ste 2800 Tampa, FL 33602 813/229-7600 Fax: 813/229-1660 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth P. Traub Shumaker, Loop & Kendrick, LLP 101 E Kennedy Blvd - Ste 2800 Tampa, FL 33602 (813) 229-7600 Fax: (813) 229-1660 Email: [email protected] ATTORNEY TO BE NOTICED
represented by Steven M. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth P. Traub (See above for address) ATTORNEY TO BE NOTICED
V.
Defendant
Fundamental Administrative Services, LLC
represented by Christopher B. Hopkins Akerman Senterfitt 222 Lakeview Ave - Ste 400
https://ecfflind,uscourts.gov/cgi-bin/DktRpt,p1?193693986621917-L_I_O-1 10/18/2013
Electronic Case Filing I U,S, District Court Middle District of Florida Page 2 of 15
PO Box 3188 West Palm Beach, FL 33401-6147 561/671-3668 Fax: 561/659-6313 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason J. Mendro Gibson, Dunn, & Crutcher, LLP 1050 Connecticut Ave., N.W. Suite 200 Washington, DC 20036-5306 Email: [email protected] TERMINATED; 03/20/2013 LEAD ATTORNEY PRO HAC VICE A I 1 ORNEY TO BE NOTICED
Gregory M. McCoskey Merman Senterfitt Suite 1700 401 E Jackson St Tampa, FL 33602-5250 813/223-7333 Fax: 813/223-2837 Email: greg,[email protected] ATTORNEY TO BE NOTICED
Defendant
Christine Zack represented by Patrick M. Quinn Brunner Quinn 35 North Fourth Street Suite 200 Columbus, OH 43215 Email: pmq@brunnerlaw,com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Alan Contreras Brunner Quinn Suite 200 35 N 4th St Columbus, OH 43215 Fax: 904/399-8440 Email: [email protected] LEAD A 17 ORNEY ATTORNEY TO BE NOTICED
https://ecf,f1md.uscourts.gov/cgi-bin/DIctRpt,p17193693986621917-L_1_0-1 10/18/2013
Electronic Case Filing ! U.S. District Court - Middle District of Florida Page 3 of 15
Rick L. Brunner Brunner Quinn 35 North Fourth Street Suite 200 Columbus, OH 43215 Email: rlb@brunnerlaw,coin LEAD ATTORNEY A11 ORNEY TO BE NOTICED
Defendant
Kristi Anderson TERMINATED,. 08/02/2013
represented by Gary R. Shendell Shendell & Pollock, PL Suite 150 2700 N Military Tr Boca Raton, FL 33431 561/241-2323 Fax: 561/241-2330 Email: [email protected] LEAD ATI ORNEY A17 ORNEY TO BE NOTICED
Peter Martin Bernhardt McDonald Hopkins, LLC Suite 300 505 S Flagler Dr West Palm Beach, FL 33401 561/472-2121 Fax: 561/472-2122 Email: [email protected] LEAD ATI ORNEY ATTORNEY TO BE NOTICED
Steven N. Leitess Leitess Friedberg PC 10451 Mill Run Circle, Ste. 1000 Baltimore, MD 21117-5519 Email: steven.leitess@lf-pc,com LEAD Afl ORNEY All ORNEY TO BE NOTICED
Defendant
Tydings & Rosenberg, LLP represented by Patricia Ann Redmond Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, PA Suite 2200 150 W Flagler St Miami, FL 33130 305/789-3553
https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?193693986621917-L_1_0-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 4 of 15
Fax: 305/789-3395 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Maria Ellena Chavez-Ruark
Defendant
Alan M. Grochal individually and not as Receiver
Defendant
Quintairos Prieto
represented by Patricia Ann Redmond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patricia Ann Redmond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marjorie Salem Hensel Hinshaw & Culbertson, LLP Suite 500 100 S Ashley Dr Tampa, FL 33602 813/276-1662 Fax: 813/276-1956 Email: mhensel@hinshawlaw,com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruel W. Smith Hinshaw & Culbertson, LLP Suite 500 100 S Ashley Dr Tampa, FL 33602 (813)868-8831 Fax: (813)276-1956 Email: [email protected] ATTORNEY TO BE NOTICED
Defendant
Wood & Boyer, PA
Defendant
represented by Marjorie Salem Hensel (See above for address) LEAD ATTORNEY A.17 ORNEY TO BE NOTICED
Ruel W. Smith (See above for address) ATTORNEY TO BE NOTICED
https://ecf.flmd.uscourts.gov/egi-bin/DIORpt.pl?193693986621917-1,_1_0-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 5 of 15
Thomas A. Valdez
Defendant
Kevin W. Richardson
Defendant
Albert J. Ferrera
represented by Marjorie Salem Hensel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruel W. Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Marjorie Salem Hensel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruel W. Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Marjorie Salem Hensel (See above for address) LEAD ATTORNEY AllORNEY TO BE NOTICED
Ruel W. Smith (See above for address) A 11ORNEY TO BE NOTICED
Date Filed # Docket Text
08/15/2012 1 NOTICE OF REMOVAL from Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, case number 23-2012-CA-004992 filed in State Court on 07/19/12. Filing fee $ 350, receipt number TPA 12771 filed by All Defendants. (Attachments: # I Civil Cover Sheet, # 2 State Court Record) (BES) (Entered: 08/16/2012)
08/15/2012 2 COMPLAINT against Kristi Anderson, Maria Ellena Chavez-Ruark, Albert J. Ferrera, Fundamental Administrative Services, LLC, Alan M. Grochal, Quintairos Prieto, Kevin W. Richardson, Tydings & Rosenberg, LLP, Thomas A. Valdez, Wood & Boyer, PA, Christine Zack with Jury Demand filed by Trans Health Management, Inc,, Beth Ann Schauer. (filed in state court on 07/19/12)(BES) (Entered: 08/16/2012)
08/17/2012 3 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3,05 - track 2. Notice of pendency of other actions due by 8/31/2012. Signed by Judge Mary S. Scriven on 8/17/2012. (APV) (Entered: 08/17/2012)
08/17/2012 4 INTERESTED PERSONS ORDER. Certificate of interested persons and corporate disclosure statement due by 8/31/2012. Signed by Judge Mary S.
https://ectflmd.uscourts.gov/cgi-bin/DlaRpt.pl?193693986621917-L_1_0-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 6 of 15
Scriven on 8/17/2012. (APV) (Entered: 08/17/2012)
08/20/2012 5 MOTION for extension of time to file response/reply as to 2 Complaint or Otherwise Respond and Accompanying Memorandum of Law by Fundamental Administrative Services, LLC. (Hopkins, Christopher) Item terminated, See item refiled H . Modified on 8/22/2012 (DG), (Entered: 08/20/2012)
08/20/2012 6 NOTICE by Fundamental Administrative Services, LLC of Pendency of Other Actions (Hopkins, Christopher), Counsel's office notified by telephone on 8/21/12 that this item is to be refiled as the electronic signature is incomplete. Item terminated, Modified on 8/21/2012 (DG), (Entered: 08/20/2012)
08/20/2012 7 MOTION for Steven N. Leitess to appear pro hac vice by Kristi Anderson. (Bernhardt, Peter) Motions referred to Magistrate Judge Mark A, Pizzo. (Entered: 08/20/2012)
08/20/2012 ***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Rick L. Brunner appearing on behalf of Christine Zack (Filing fee $10 receipt number TPA12852.) (JNB) (Entered: 08/22/2012)
08/20/2012 ***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Patricic M, Quinn appearing on behalf of Christine Zack (Filing fee $10 receipt number TPA12852.) (JNB) (Entered: 08/22/2012)
08/21/2012 8 First MOTION for Rick L. Brunner to appear pro hac vice by Gregory M, McCoskey. (McCosIcey, Gregory) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 08/21/2012)
08/21/2012 9 First MOTION for Patrick M. Quinn to appear pro hac vice by Gregory M, McCosIcey. (McCoskey, Gregory) Motions referred to Magistrate Judge Marlc A. Pizzo. (Entered: 08/21/2012)
08/21/2012 10 NOTICE of pendency of related cases re .3 Related case order and notice of designation of track 2 per Local Rule 1.04(d) by Fundamental Administrative Services, LLC. Related case(s): Yes (Hopkins, Christopher) (Entered: 08/21 /2012)
08/21/2012 11 MOTION for extension of time to file answer or otherwise plead re 2 Complaint or otherwise respond and accompanying Memorandum of Law by Fundamental Administrative Services, LLC. (Hopkins, Christopher) (Entered: 08/21/2012)
08/21/20 I 2 12 NOTICE of Appearance by Seth P. Traub on behalf of Beth Ann Scharrer, Trans Health Management, Inc, (Traub, Seth) (Entered: 08/21/2012)
08/21/2012 13 NOTICE of Appearance by Marjorie Salem Hensel on behalf of Albert J. Ferrera (Hensel, Marjorie) (Entered: 08/21/2012)
08/21/2012 14 NOTICE of Appearance by Marjorie Salem Hensel on behalf of Quintairos Prieto (Hensel, Marjorie) (Entered: 08/21/2012)
https://ecf.flmd.uscourts.gov/cgi-bin/DlaRpt.pl?193693986621917-L_I_O-1 10/18/2013
Electronic Case Filing -11,S. District Court Middle District of Florida Page 7 of 15
08/21/2012 15 NOTICE of Appearance by Marjorie Salem Hensel on behalf of Kevin W. Richardson (Hensel, Marjorie) (Entered: 08/21/2012)
08/21/2012 16 NOTICE of Appearance by Marjorie Salem Hensel on behalf of Thomas A. Valdez (Hensel, Marjorie) (Entered: 08/21/2012)
08/21/2012 17 NOTICE by Albert J. Ferrera of Filing Designation of Email Address (Hensel, Marjorie) (Entered: 08/21/2012)
08/21 /2012 18 NOTICE by Quintairos Prieto of Filing Designation of Email Address (Hensel, Marjorie) (Entered: 08/21/2012)
08/21/2012 19 NOTICE by Kevin W. Richardson (Hensel, Marjorie) (Entered: 08/21/2012)
08/21/2012 20 NOTICE by Thomas A, Valdez of Filing Designation of Email Address (Hensel, Marjorie) (Entered: 08/21 /2012)
08/22/2012 21 NOTICE of Appearance by Gregory M. McCosIcey on behalf of Fundamental Administrative Services, LLC (McCosIcey, Gregory) (Entered: 08/22/2012)
08/22/2012 22 NOTICE of Appearance by Patricia Ann Redmond on behalf of Maria Ellena Chavez-Ruark, Alan M, Grochal, Tydings & Rosenberg, LLP (Redmond, Patricia) (Entered: 08/22/2012)
08/23/2012 23 ORDER granting 8 motion to appear pro hac vice, Please see Order for details. Signed by Magistrate Judge Mark A. Pizzo on 8/23/2012. (DK) (Entered: 08/23/2012)
08/23/2012 24 NOTICE of pendency of related cases re Case No.: 8:12-cv-1855-T-30MAP per Local Rule 1.04(d) by Albert J. Ferrera, Related case(s): yes (Hensel, Marjorie) (Entered: 08/23/2012)
08/23/2012 25 NOTICE of pendency of related cases re Case No.: 8:12-cv-1855-T-30MAP per Local Rule 1,04(d) by Quintairos Prieto. Related case(s): yes (Hensel, Marjorie) (Entered: 08/23/2012)
08/23/2012 26 NOTICE of pendency of related cases re Case No.: 8:12-cv-1855-T-30MAP pet' Local Rule 1.04(d) by Kevin W. Richardson. Related case(s): yes (Hensel, Marjorie) (Entered: 08/23/2012)
08/23/2012 27 ORDER granting 9 motion to appear pro hac vice, Please see Order for details. Signed by Magistrate Judge Mark A, Pizzo on 8/23/2012. (DK) (Entered: 08/23/2012)
08/23/2012 28 NOTICE of pendency of related cases re Case No.: 8:12-cv-1855-T-30M4P per Local Rule 1.04(d) by Thomas A, Valdez. Related case(s): yes (Hensel, Marjorie) (Entered: 08/23/2012)
08/23/2012 29 ORDER granting 7 motion to appear pro hac vice. Please see Order for details, Signed by Magistrate Judge Mark A. Pizzo on 8/23/2012. (DK) (Entered: 08/23/2012)
08/26/2012 30 PROOF of service by Beth Ann Schaffer (Traub, Seth) (Entered: 08/26/2012)
08/26/2012 31 PROOF of service by Beth Ann Schaffer (Traub, Seth) (Entered: 08/26/2012)
https://eciflmd,uscourts.gov/cgi-bin/DIctRpt,p1?193693986621917-L_I_O-1 10/18/2013
Electronic Case Filing p U,S, District Court - Middle District of Florida Page 8 of 15
08/27/2012 32 ENDORSED ORDER granting 11 Defendants' Motion to Extend the Deadline to Answer or Otherwise Respond, Defendants shall have up to and including September 14, 2012, to file their responses, Signed by Judge Mary S. Scriven on 8/27/2012. (HMJ) (Entered: 08/27/2012)
08/27/2012 33 RETURN of service executed on August 3, 2012 by Beth Ann Scharrer as to Christine Zack, (Traub, Seth) (Entered: 08/27/2012)
08/27/2012 34 RETURN of service executed on August 7, 2012 by Beth Ann Scharrer as to Quintairos Prieto, (Traub, Seth) (Entered: 08/27/2012)
08/28/2012 ***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Steven N. Leitess appearing on behalf of Kristi Anderson (Filing fee $10,00 receipt number TPA12982.) Related document: 7 MOTION for Steven N. Leitess to appear pro hac vice (AG) (Entered: 08/30/2012)
08/31/2012 35 CERTIFICATE of interested persons and corporate disclosure statement by Tydings & Rosenberg, LLP. (Redmond, Patricia) (Entered: 08/31/2012)
08/31/2012 36 NOTICE of pendency of related cases re 3 Related case order and notice of designation of track 2 per Local Rule 1,04(d) by Maria Ellena Chavez-Ruark, Alan M. Grochal, Tydings & Rosenberg, LLP. Related case(s): Yes (Redmond, Patricia) (Entered: 08/31/2012)
08/31/2012 37 NOTICE by Maria Ellena Chavez-Ruark, Alan M. Grochal, Tydings & Rosenberg, LLP Designation of Email Addresses (Redmond, Patricia) (Entered: 08/31/2012)
08/31/2012 38 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Maria Ellena Chavez-Ruark, (Redmond, Patricia) (Entered: 08/31/2012)
08/31/2012 39 CERTIFICA FE, of interested persons and corporate disclosure statement re 4 Interested persons order by Alan M. Grochal, (Redmond, Patricia) (Entered: 08/31/2012)
08/31/2012 40 NOTICE of pendency of related cases re 3 Related case order and notice of designation of track 2 per Local Rule 1,04(d) by Beth Ann Scharrer, Trans Health Management, Inc., Related case(s): yes (Traub, Seth) (Entered: 08/31 /2012)
08/31/2012 41 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Beth Ann Scharrer, Trans Health Management, Inc.. (Traub, Seth) (Entered: 08/31/2012)
09/12/2012 42 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Fundamental Administrative Services, LLC. (Hopkins, Christopher) (Entered: 09/12/2012)
09/12/2012 43 NOTICE of pendency of related cases re 3 Related case order and notice of designation of track 2 per Local Rule 1.04(d) by Fundamental Administrative Services, LLC. Related case(s): Y (Hopkins, Christopher) (Entered: 09/12/2012)
https://ecf, flincLuscourts.gov/cgi-bin/D1ctRpt.pl?193693986621917-Ll_0-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 9 of 15
09/13/2012 44 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Albert J. Ferrero, (Hensel, Marjorie) (Entered: 09/13/2012)
09/13/2012 45 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Quintairos Prieto. (Hensel, Marjorie) (Entered: 09/13/2012)
09/13/2012 46 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Kevin W. Richardson. (Hensel, Marjorie) (Entered: 09/13/2012)
09/13/2012 47 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Thomas A. Valdez, (Hensel, Marjorie) (Entered: 09/13/2012)
09/13/2012 48 CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Thomas A. Valdez, (Hensel, Marjorie) (Entered: 09/13/2012)
09/14/2012 49 MOTION to dismiss Complaint by Albert J. Ferrero, (Attachments: # 1 Exhibit I, # 2 Exhibit 2)(Hensel, Marjorie) (Entered: 09/14/2012)
09/14/2012 50 MOTION to dismiss Complaint by Quintairos Prieto, (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hensel, Marjorie) (Entered: 09/14/2012)
09/14/2012 51 MOTION to dismiss Complaint by Kevin W. Richardson. (Attachments: # 1 Exhibit 1, # 2. Exhibit 2)(Hensel, Marjorie) (Entered: 09/14/2012)
09/1 4/2012 52 MOTION to dismiss Complaint by Thomas A. Valdez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hensel, Marjorie) (Entered: 09/14/2012)
09/1 4/2012 53 MOTION to dismiss the claims asserted in the Complaint against the Receivership Defendants and Incorporated Memorandum of Law by Maria Ellena Chavez-Ruark, Alan M. Grochal, Tydings & Rosenberg, LLP. (Attachments: # 1 Exhibit Index of Exhibits to Motion to Dismiss, # 2 Exhibit A - Order Appointing Receiver, # 3 Exhibit B - Notice to Creditors, # 4 Exhibit C - Certificate of Mailing Notice of Creditors, # 5 Exhibit D - Motion to approve supplementary notice, # 6 Exhibit E - Order approving form of supplemental notice, # 7 Exhibit F - Supplemental notice to creditors, # 8 Exhibit G (1 of 2) - certificate of mailing supplemental notice to creditors, # 9 Exhibit G (2 of 2) - certificate of mailing supplemental notice to creditors, # 10 Exhibit H - motion to abandon defense claims and for other relief, # 11 Exhibit 1 (1 of 2) - certificate of service, # 12 Exhibit 1 (2 of 2) - certificate of service, # 13 Exhibit J - motion ruling, # 14 Exhibit K - Affidavit of Maria Ellena Chavez-Ruark)(Redmond, Patricia) (Entered: 09/14/2012)
09/14/2012 54 MOTION to dismiss Complaint by Christine Zack. (Attachments: # 1 Exhibit Declaration of Christine Zack)(Quinn, Patrick) (Entered: 09/14/2012)
09/1 4/2012 55 MOTION to dismiss claims against it pursuant to Rules 12(b)(1) & 12(b)(6) by Fundamental Administrative Services, LLC. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, #
https://ecf.flind.uscourtS.gov/cgi-bi n/DIctRpt,p1?193693986621917-L_I_O-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 10 of 15
14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit)(Hopkins, Christopher) (Entered: 09/14/2012)
09/14/2012 56 MOTION to dismiss Complaint by Kristi Anderson. (Attachments: # 1 Exhibit Declaration of Kristi Anderson)(Leitess, Steven) (Entered: 09/15/2012)
09/27/2012 57 MOTION for extension of time to file response/reply as to 50 MOTION to dismiss Complaint, 56 MOTION to dismiss Complaint, 51 MOTION to dismiss Complaint, 52 MOTION to dismiss Complaint, 49 MOTION to dismiss Complaint, 53 MOTION to dismiss the claims asserted in the Complaint against the Receivership Defendants and Incorporated Memorandum of Law, 55 MOTION to dismiss claims against it pursuant to Rules 12(b)(1) & 12(b)(6) MOTION to dismiss claims against it pursuant to Rules 12(b)(1) & 12(b)(6) MOTION to dismiss claims against it pursuant to Rules 12(b)(1) & I2(b)(6), 54 MOTION to dismiss Complaint by Beth Ann Scharrer, Trans Health Management, Inc.. (Traub, Seth) (Entered: 09/27/2012)
10/01/2012 58 NOTICE by Beth Ann Scharrer, Trans Health Management, Inc. Supplemental Certificate of Good Faith Conference for Plaintiffs' Motion for Enlargement of Time to Respond to Defendants' Motions to Dismiss (Traub, Seth) (Entered: 10/01/2012)
10/01/2012 59 ENDORSED ORDER granting 57 Plaintiffs' Motion for Enlargement of Time to Respond to Defendants' Motions to Dismiss. Plaintiffs shall have up to and including October 31, 2012, to file their responses. Signed by Judge Mary S. Scriven on 10/1/2012, (HMJ) (Entered: 10/01/2012)
10/30/2012 60 Unopposed MOTION for leave to file excess pages for Memorandum in Response to Defendants' Motions to Dismiss by Beth Ann Scharrer, Trans Health Management, Inc„ (Traub, Seth) (Entered: 10/30/2012)
10/31/2012 61 ENDORSED ORDER granting 60 Plaintiffs' Unopposed Motion to Enlarge Page Limitation for Memorandum in Response to Defendants' Motions to Dismiss. Plaintiffs' Memorandum in Response shall not exceed fifty (50) pages. Signed by Judge Mary S. Scriven on 10/31/2012. (HMJ) (Entered: 10/31/2012)
10/31/2012 62 MOTION to stay discovery by Kristi Anderson, Maria Ellena Chavez-Ruark, Albert J. Ferrera, Alan M, Grochal, Quintairos Prieto, Kevin W. Richardson, Thomas A. Valdez, Christine Zack, (Hopkins, Christopher) Motions referred to Magistrate Judge Mark A. Pizzo, (Entered: 10/31/2012)
10/31/2012 63 MOTION to compel Jurisdictional Depositions of Defendants, Christine Zack and Kristi Anderson, MOTION to extend time to ten (10) days after the last jurisdictional deposition to Supplement Jurisdictional Argument in Memorandum in Opposition to Defendants' Motions to Dismiss by Beth Ann Scharrer, Trans Health Management, Inc„ (Traub, Seth) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 10/31 /2012)
10/31/2012 64 MEMORANDUM in opposition re 50 Motion to dismiss, 51 Motion to
https://ecf.flmd.uscourts,gov/cgi-bin/DktRpt.pl?193693986621917-L_1_0-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 11 of 15
dismiss, 52 Motion to dismiss, 49 Motion to dismiss, 55 Motion to dismiss, 56 Motion to dismiss, 53 Motion to dismiss, 54 Motion to dismiss filed by Beth Ann Schaffer, Trans Health Management, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Traub, Seth) (Entered: 10/31/2012)
11/01/2012 65 NOTICE of supplemental authority re 62 MOTION to stay discovery by Fundamental Administrative Services, LLC (Hopkins, Christopher) (Entered: 11/01 /2012)
11/09/2012 66 MEMORANDUM in opposition re 63 Motion to compelMotion to extend time filed by Christine Zack. (Quinn, Patrick) (Entered: 11/09/2012)
11/14/2012 67 RESPONSE in opposition re 63 MOTION to compel Jurisdictional Depositions of Defendants, Christine Zack and Kristi Anderson MOTION to extend time to ten (10) days after the last jurisdictional deposition to Supplement Jurisdictional Argument in Memorandum in Opposition to Defendants' Motions to Dismiss MOTION to extend time to ten (10) days after the last jurisdictional deposition to Supplement Jurisdictional Argument in Memorandum in Opposition to Defendants' Motions to Dismiss filed by Kristi Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Leitess, Steven) (Entered: 11/14/2012)
11/16/2012 68 ORDER granting 62 Defendants' Motion to Stay Discovery Pending Resolution of Motions to Dismiss subject to any jurisdictional discovery the Court may allow in response to 63 Plaintiffs' Motion to Compel Jurisdictional Depositions, Signed by Judge Mary S. Scriven on 11/16/2012. (HMJ) (Entered: 11/16/2012)
1 1 /28/2012 69 ORDER granting in part and denying in part 63 Plaintiffs' Motion to Compel Jurisdictional Depositions of Defendants Christine Zack and Kristi Anderson and for Enlargement of Time to Supplement Jurisdictional Argument in Memorandum in Oppositions to Defendants' Motions to Dismiss, See Order for details. Signed by Judge Mary S. Scriven on 11/28/2012. (HMJ) (Entered: I 1/28/2012)
11/30/2012 70 NOTICE by Beth Ann Schaffer, Trans Health Management, Inc. re 69 Order on motion to compelOrder on motion to extend time of Filing Transcript of Rule 2009 Examination of Christine Zack and Request to Take Judicial Notice of Bankruptcy Court Order Regarding Limitation on Rule 2004 Examination (Attachments: # 1 Exhibit Examination Transcript, # 2 Exhibit Bankruptcy Court Order)(Traub, Seth) (Entered: 11/30/2012)
12/04/2012 71 NOTICE of Appearance by Gary R, Shendell on behalf of Kristi Anderson (Shendell, Gaty) (Entered: 12/04/2012)
12/07/2012 72 RESPONSE re 70 Notice (Other)Notice (Other) Fundamental and Christine Zack's Response to Plaintiffs Request to Take Judicial Notice of Bankruptcy Court Order filed by Fundamental Administrative Services, LLC, (Hopkins, Christopher) (Entered: 12/07/2012)
https://ectflmd,uscourts.gov/cgi-bin/DIctRpt,p1?193693986621917-L_I_O-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 12 of 15
02/05/2013 73 MOTION for Jason J, Mendro to appear pro hac vice by Fundamental Administrative Services, LLC, (Hopkins, Christopher) Motions referred to Magistrate Judge Mark A, Pizzo, (Entered: 02/05/2013)
02/06/2013 ***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Jason J. Mendro, appearing on behalf of Fundamental Administrative Services, LLC (Filing fee $10 receipt number TPA15663.) Related document: 73 MOTION for Jason J. Mendro to appear pro hac vice. (AG) (Entered: 02/07/2013)
02/19/2013 74 ORDER granting 73 Defendant's Motion to Appear Pro Hac Vice, See order for details. Signed by Magistrate Judge Mark A. Pizzo on 2/19/2013, (ACS) (Entered: 02/19/2013)
03/18/2013 75 MOTION for Jason J, Mendro to withdraw as attorney by Fundamental Administrative Services, LLC. (Mendro, Jason) (Entered: 03/18/2013)
03/20/2013 76 ENDORSED ORDER granting 75 Jason J. Mendro's Motion to Withdraw. The Clerk is directed to TERMINATE Jason J. Mendro of Gibson, Dunn & Crutcher LLP as counsel for Defendant Fundamental Administrative Services, LLC. Attorneys Christopher B. Hopkins and Gregory M. McCoskey of the law firm of Akerman Senterfitt shall remain as counsel for Defendant Fundamental Administrative Services, LLC, Signed by Judge Mary S. Scriven on 3/20/2013, (HMJ) (Entered: 03/20/2013)
07/02/2013 77 NOTICE of Voluntary Dismissal as to Kristi Anderson Only Pursuant to Bankruptcy Court Memorandum Opinion and Order Granting Joint Motion to Compromise by Beth Ann Schauer, Trans Health Management, Inc. (Attachments: # 1 Errata Bankruptcy Court Memorandum Opinion and Order)(Berman, Steven) (Entered: 07/02/2013)
08/02/2013 78 ORDER denying as moot 56 Kristi Anderson's Motion to Dismiss. The claims against Kristi Anderson are DISMISSED with prejudice. The Clerk is directed to TERMINATE Kristi Anderson as a party to this action. Signed by Judge Mary S. Scriven on 8/2/2013. (HMJ) (Entered: 08/02/2013)
08/02/2013 79 ORDER denying 63 Plaintiffs' Motion to Compel the Jurisdictional Deposition of Defendant Christine Zack. Signed by Judge Mary S. Scriven on 8/2/2013. (HMJ) (Entered: 08/02/2013)
09/06/2013 80 NOTICE by Fundamental Administrative Services, LLC re 50 MOTION to dismiss Complaint, 51 MOTION to dismiss Complaint, 52 MOTION to dismiss Complaint, 49 MOTION to dismiss Complaint, 53 MOTION to dismiss the claims asserted in the Complaint against the Receivership Defendants and Incorporated Memorandum ofLctw, 54 MOTION to dismiss Complaint (Attachments: # 1 Exhibit Order in Case #8:12-cv-1855)(Hopkins, Christopher) (Entered: 09/06/2013)
09/09/2013 81 NOTICE of supplemental authority re 53 MOTION to dismiss the claims asserted in the Complaint against the Receivership Defendants and
,
Incorporated Memorandum of Lmv by Maria Ellena Chavez-Ruark, Alan M. Grochal, Tydings & Rosenberg, LLP (Redmond, Patricia) (Entered: 09/09/2013)
https://ecf,flind,uscourts,gov/cgi-bin/D1ctRpt.pl?193693986621917-L_1_0-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 13 of 15
09/10/2013 82 ORDER granting in part and denying in part 49 motion to dismiss; granting in part and denying in part 50 motion to dismiss; granting in part and denying in part 51 motion to dismiss; granting in part and denying in part 52 motion to dismiss. See Order for details. Signed by Judge Mary S. Scriven on 9/10/2013. (HMJ) (Entered: 09/10/2013)
09/10/2013 83 ORDER denying 55 Fundamental Administrative Services, LLC's Motion to Dismiss, See Order for details. Signed by Judge Mary S. Scriven on 9/10/2013. (HMJ) (Entered: 09/10/2013)
09/10/2013 84 ORDER granting 53, Motion to Dismiss on behalf of Defendants Tydings & Rosenberg, LLP, Maria Ellena Chavez-Ruark, and Alan M. Grochal, See Order for details. Signed by Judge Mary S. Scriven on 9/10/2013. (HMJ) (Entered: 09/10/2013)
09/1 0/2013 85_ ORDER granting 54 Christine Zack's Motion to Dismiss. See Order for details. Signed by Judge Mary S. Scriven on 9/10/2013. (HMJ) (Entered: 09/10/2013)
09/17/2013 86 MOTION to stay and/or Motion to Continue Stay of Discovery and Supporting Memorandum Of Law by Fundamental Administrative Services, LLC. (Hopkins, Christopher) (Entered: 09/17/2013)
09/17/2013 87 NOTICE of supplemental authority re 86 MOTION to stay and/or Motion to Continue Stay of Discovery and Supporting Memorandum Of Law by Fundamental Administrative Services, LLC (Hopkins, Christopher) (Entered: 09/17/2013)
09/1 8/2013 88 JOINDER in motion by Albert J. Ferrera, Quintairos Prieto, Kevin W. Richardson, Thomas A. Valdez, Wood & Boyer, PA re 86 MOTION to stay and/or Motion to Continue Stay of Discovery and Supporting Memorandum Of Law filed by Fundamental Administrative Services, LLC , (Smith, Ruel) (Entered: 09/18/2013)
09/23/2013 89 Unopposed MOTION for Extension of Time to File Answer re 2 Complaint, 82 Order on motion to dismiss by Albert J. Ferrera, Quintairos Prieto, Kevin W. Richardson, Thomas A. Valdez, Wood & Boyer, PA. (Smith, Ruel) (Entered: 09/23/2013)
09/24/2013 90 ENDORSED ORDER granting 89 Unopposed Motion for Extension of their Deadline to Answer the Complaint filed on behalf of Defendants Quintairos, Prieto, Wood & Boyer, P.A,, Thomas A. Valdez, Kevin W. Richardson, and Albert J. Ferrera ("Quintairos Defendants"). The Quintairos Defendants shall have up to and including September 27, 2013, to file their Answer to Plaintiffs' Complaint. Signed by Judge Mary S. Scriven on 9/24/2013. (HMJ) (Entered: 09/24/2013)
09/24/2013 91 MOTION to extend time to Respond to Complaint by Fundamental Administrative Services, LLC. (Hopkins, Christopher) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 09/24/2013)
09/27/2013 .92 Fundamental's ANSWER and affirmative defenses to 2 Complaint by Fundamental Administrative Services, LLC,(Hopkins, Christopher) (Entered:
https://ecfnmd,uscourts,gov/egi-bin/DktRpt.pl?193693986621917-L_1_0-1 10/18/2013
Electronic Case Filing U.S. District Court - Middle District of Florida
09/27/2013)
09/27/2013 93 ANSWER and affirmative defenses to 2 Complaint by Albert J. Ferrera, Quintairos Prieto, Kevin W. Richardson, Thomas A. Valdez, Wood & Boyer, PA,(Smith, Ruel) (Entered: 09/27/2013)
10/04/2013 94 RESPONSE in Opposition re 86 MOTION to stay and/or Motion to Continue Stay of Discovery and Supporting Memorandum Of Law and Motion for Referral to Bankruptcy Court filed by Beth Ann Scharrer, Trans Health Management, Inc.. (Traub, Seth) (Entered: 10/04/2013)
10/04/2013 95 MOTION for Reconsideration re 85 Order on motion to dismiss , MOTION for Extension of Time to File by Beth Ann Schaffer, Trans Health Management, Inc.. (Attachments: II 1 Exhibit, # 2 Exhibit)(Traub, Seth) (Entered: 10/04/2013)
10/04/2013 96 ENDORSED ORDER granting nunc pro tune 91 Defendant Fundamental Administrative Services, LLC's Motion to extend time to respond to complaint. Signed by Magistrate Judge Mark A. Pizzo on 10/4/2013, (DK) (Entered: 10/04/2013)
10/13/2013 97 MOTION for clarification or in the Alternative, for Leave to File Reply by Albert J. Ferrera, Quintairos Prieto, Kevin W. Richardson, Thomas A. Valdez, Wood & Boyer, PA. (Smith, Ruel) (Entered: 10/13/2013)
10/15/2013 98 NOTICE of Joinder by Fundamental Administrative Services, LLC re 97 MOTION for clarification or in the Alternative, for Leave to File Reply (Hopkins, Christopher) (Entered: 10/15/2013)
10/15/2013 99 ORDER granting 97 Motion for clarification. Defendants shall have up to and including October 21, 2013, to file their responses in opposition to Plaintiffs' request for referral to the Bankruptcy Court. Signed by Judge Mary S. Scriven on 10/15/2013. (HMJ) (Entered: 10/15/2013)
10/15/2013 100 AMENDED ANSWER to 2 Complaint and Affirmative Defenses by Fundamental Administrative Services, LLC, (Hopkins, Christopher) (Entered: 10/15/2013)
10/16/2013 101 NOTICE of Filing in Further Support of Motion for Referral to Bankruptcy Court and Motion for Extension of Time to File Amended Complaint by Beth Ann Scharrer, Trans Health Management, Inc. re 94 Response in Opposition to Motion, 95 MOTION for Reconsideration re 13.5 Order on motion to dismiss MOTION for Extension of Time to File (Attachments: # 1. October 8, 2013 Transcript)(Traub, Seth) (Entered; 10/16/2013)
PACER Service Center
Transaction Receipt
10/18/2013 16:02:50
PACER Login:
b12014 Client Code: 0261021
II
Page 14 of 15
https://ecf.flind.uscourts.gov/cgi-bin/DktRpt.pl?193693986621917-L_l_0-1 10/18/2013
Electronic Case Filing I U.S. District Court - Middle District of Florida Page 15 of 15
Description: Docket Report
Search Criteria:
8:12-cv-01854-MSS-MAP
Billable Pages: 1I Cost: 1,10
https://ecf.flrnd.useourts.gov/cgi-bin/DktRpt.pl?193693986621917-L_I_O-1 10/18/2013
EXHIBIT "F"
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND FOR POLK COUNTY, STATE OF FLORIDA
CIVIL DIVISION
The Estate of JUANITA AMELIA JACKSON, by and through CATHY JACKSON-PLATTS f/k/a CATHERINE WHATLEY, Personal Representative,
Plaintiff, CASE NO.: 2004-CA-3229
vs. DIVISION: 07
TRANS HEALTH MANAGEMENT, INC.; TRANS HEALTHCARE, INC.;
Defendants.
NOTICE OF APPEARANCE AS COUNSEL FOR DEFENDANTLTRANS HEALTH MANAGEMENT, INC.
The undersigned, Steven M. Berman and Seth P. Traub, of Shumaker, Loop &
Kendrick, LLP, pursuant to the authoriation and direction of the United States
Bankruptcy Court for the Middle District of Florida ("Bankruptcy Court"), hereby gives
notice that Shumaker, Loop & Kendrick, LLP (in its role as counsel for Beth Ann
Scharrer, the Chapter 7 Trustee of the bankruptcy estate of Fundamental Long Term, Inc,,
the sole owner of Trans Health Management, Inc,) is appearing as counsel for Defendant,
Trans Health Management, Inc, ("THMI"). In support, the undersigned and THMI state
as follows:
1, On December 5, 2011, an Involuntary Petition under Chapter 7 of the
United States Bankruptcy Code was filed against Fundamental Long Term Care, Inc,
("FLTCI"). On January 12, 2012, the Bankruptcy Court entered an Order for Relief,
which, by operation of law, determined that FLTCI became a debtor in bankruptcy.
SLK JAM:I/1559392v'
2, The Bankruptcy Court appointed Ms, Scharrer as Chapter 7 Trustee
("Trustee") on January 23, 2012.
3, On May 7, 2012, FLTCI filed its Schedules, which disclose, among other
things, FLTCI's 100% interest in THMI, a Defendant in this action.
4. On October 9, 2012, the Bankruptcy Court entered Order and
Memorandum Opinion on Trustee's Motions for Show-Cause Order (Doc, 409), which
determined that the Trustee controls THMI, A copy of the Bankruptcy Court's October
9, 2012 Order is attached as Exhibit 1.
5. At a further hearing on December 5, 2012, the transcript of which is
attached as Exhibit 2, the Bankruptcy Court authorized and directed the Trustee to have
her counsel substitute for existing counsel that had appeared on behalf of THMI, [Ex, 2,
p,26, lines 8-11],
6. At this time, there is no counsel of record for THMI in this case.
Accordingly, Shumaker, Loop & Kendrick, LLP (in their role as counsel for the Trustee)
hereby appears as counsel for THMI.
7. Such appearance, however, is not in any way an adoption or affirmation of
,any actions previously taken by any firm purportedly on behalf of THMI, Undersigned
counsel will file papers on behalf of THMI from this date forward.
2
By:
8, Copies of all notices, pleadings, correspondence, and other documents and
papers filed in this case hereafter should be served upon the undersigned,
Respectfully submitted,
SHUMAKER, LOOP & KENDRICK, LLP
S N M. BERMAN, ESQ, Florida Bar No.: 856290 SETH P. TRAUB, ESQ. Florida Bar, No, 022088 Primary E-Mail: sberman@slk-law,com Primary E-Mail: [email protected] Secondary E-Mail: [email protected] Secondary E-Mail: [email protected] 101 East Kennedy Blvd, Suite 2800 Tampa, Florida 33602 Phone: (813) 229-7600 Fax: (813) 229-1660 Attorneys for Chapter 7 Trustee, Beth Ann Scharrer, and Trans Health Management, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on February 11, 2013, a true and correct copy of the
foregoing was served via electronic notice or U.S. Mail upon:
Bennie Lazzara, Jr. Bennie@wilkesmchugh com Isaac R. Ruiz-Carus lruiz-carus @wilkesmchugh.com Joanna M. Greber [email protected] Wilkes & McHugh, P.A. I N Dale Mabry Hwy, Ste 800 Tampa, Florida 33609
Maria Chavez-Ruark, Esquire mruarlasaul.com Saul Ewing, LLP, 500 East Pratt Street, Suite 800 Baltimore, MD 21202
Richard B, Mangan, Jr., Esquire rbm,service rissman,com brs,service@rissman,coin [email protected] Rissman Barrett Hurt Donahue McLain, PA One North Dale Mabry Highway Ilth Floor Tampa, FL 33609
Jennings L. Hurt, III, Esquire bucky.hurt@rissman,com Post Office Box 4940 Orlando, FL 32802
Carol A. Licko, Esquire carol.licko@hoganlovells,com gladys.cata_,hoganlovells,com gloria,[email protected] in Hogan Lovells US LLP 200 South Biscayne Boulevard Suite 400 Miami, FL 33131 Attorneys for General Electric Capital Corporation
Fundamental Long Term Care, Inc, do The Corporation Trust Co, as Resident Agent
3
Hunter W. Carroll, Esquire hcarroll@matthewseastmoore,com ArnyAmatthewseastmoore.com A. Lamar Matthews, Esquire Al.Matthews@matthewseastmoore,c om Matthews Eastmoore 1777 Main Street, Suite 50Q Sarasota, FL 34236 Attorneys for Ventas Realty Limited Partnership and Ventas
1209 Orange Street Wilmington, DE 19801
Dan Weiss, Esq, dweissAjenner,com aborich@jenner,com qinnickfienner,com Jenner & Block, LLC 353 North Clark Street Chicago, IL 60654 Attorneys for Ventas Realty Limited Partnership and Ventas, Inc,
Steven A, Engel, Esquire steven.engeladechert,com faith.anderson- leak f,dechert,corn Katherine Wyman, Esquire [email protected] Dechert, LLP 1775 I Street, NW Washington, DC 20006 Attorneys for Rubin Schron
Christopher Hopkins, Esquire Christopher:[email protected] gm Guy Quattlebaum, Esquire Guy,quattlebaum(aakerman , c om Audra,shankle®akermameom Barbara,thomas@akerman,com Akerman Sentertitt 222 Lakeview Avenue, Suite 400 West Palm Beach, FL 33401 Co-Attorneys for FAS and THIB
Angela Crawford, Esquire Angela.crawford _,dlapiper.com [email protected] DLA Piper 100 North Tampa Street Suite 2200 Tampa, FL 33602 Attorneys for Fundamental Administrative Services, LLC and THI of Baltimore, Inc.
Nicolle Jacoby, Esquire [email protected] Dechert, LLP 1095 Avenue of the Americas New York, NY 10036-6797 Attorney for Defendant, Rubin Schron
Dennis Parker Waggoner, Esquire [email protected] Casey Reeder Lennox, Esquire clennox0,11whlaw,com Hill Ward Henderson, P,A, 101 E. Kennedy Boulevard Suite 3700 P.O. Box 2231 Tampa, FL 33601-2231 Attorneys for Troutman Sanders, LLP
Ellen Kennedy, Esquire Ellen,kennedy(ahoganlovells,c pm Lisa Bonanno, Esq, Lisa,bonanno@hoganlovells,co m Hogan Lovells Columbia Square 555 Thirteenth Street, N.W. Washington, DC 20004 Attorneys for GECC
Lisa Markofsky, Esquire lmarkofsky®proskauer.corn Matthew Triggs, Esquire mtrigas@proskauer,coin florida,litigationAproskauer,co
Proskauer Rose, LLP 2255 Glades Road Suite 421 Atrium Boca Raton, FL 33431-7360 Attorneys for Fundamental Administrative Services, LLC and THI of Baltimore, Inc.
Jeffery Carter Andersen, Esquire canderson@bashross,com mmedley@bushross,com Traci Koster, Esquire tkoster0,bushross.corn thoman(abtishross.com Bush Ross, P.A. P.O, Box 3913 Tampa, FL 33601 Attorneys for GRCR Fund L,P., GTCR Golder Rattner, LLC, GTCR Partners VI, L, P, and Edgar D. Jannotta, Jr.
4
Barry Postman, Esquire Barry.postman@csklegal,eom Justin Sorel, Esquire Justin.soiTel@csklegal,com Cole, Scott Kissane, P.A. 1645 Palm Beach Lakes Boulevard 2" Floor West Palm Beach, FL 33401 Attorneys for Concepcion Sexton & Martinez, P.A.
Stuart C. Markman, Esquire smarkinan(amf-law.com [email protected],com Kristin A, Norse, Esquire [email protected] Kynes Markman & Felman, P.A. 100 S. Ashley Drive, Suite 1300 Tampa, Florida 33602
Joseph H. Varner, III, Esquire joe,[email protected] gloria.mcknight@hklaw,com Stacy D, Blank, Esquire [email protected] joann.loyoltahklaw.com Bradford Kimbro, Esquire brad,kimbro iiklaw,com beverly,longAhklaw.com Michael Chapman, Esquire michael.chapmanO,bklaw.com William Dufoe, Esquire william.dufoe@hklaw,com laura,wisemanO,hklaw,com Patrick M. Chidnese, Esquire [email protected] joann.loyola@hklaw,com Holland & Knight 100 North Tampa St, Suite 4100 Tampa, FL 33602 Attorneys for Rubin Schron
Matthew Emrich Nirider, Esquire [email protected] Gabor Balassa, Esquire gbalassa@kirldand mom Kirkland & Ellis, LLP 300 North LaSalle Chicago, IL 60654 Attorneys for GRCR Fund VI, L. P,, OWE Golder Rauner, LLC, GTCR Partners VI, L, P, and Edgar D. Jannotta, Jr,
Mark N. Miller, Esquire [email protected] Karen,[email protected] Monterey Campbell, Esquire Monterey.campbellOgray-robinson.com Owen,[email protected] Gray Robinson, P.A. P.O. Box 3 Lakeland, FL 33802 Attorneys for GRCR Fund VI, L.P., GTCR Golder Rauner, LLC, GTCR Partners VI, L. P. and Edgar D. Jannotta, Jn
John W. Frost, II, Esquire [email protected] [email protected] Frost Van den Boom & Smith, P,A, P.O. Box 218 Bartow, FL 33831-2188 Attorneys for Yentas Realty, Limited Partnership and Ventas, Inc.
James C, Valenti, Esquire jvalentiQvcttalawyers,com i.harris@vatalawyers,com Valenti Campbell Torhn Tamayo & Aranda P.O. Box 2369 Lakeland, FL 33806 Counsel for GECC
5