In re Titus

49 B.R. 75
CourtDistrict Court, W.D. Wisconsin
DecidedMay 17, 1985
DocketNo. 85-C-272-S; Bankruptcy No. MM11-84-01847
StatusPublished

This text of 49 B.R. 75 (In re Titus) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Titus, 49 B.R. 75 (W.D. Wis. 1985).

Opinion

MEMORANDUM AND ORDER

SHABAZ, District Judge.

This is an appeal from an order which does not exist or, in the alternative, an appeal by the prevailing party from an order reconsidered.

The framers of 28 U.S.C. § 1927, Counsel’s Liability for Excessive Costs, must have had this case in mind.

On November 28, 1984, John Deere Company, a secured creditor in this debtors’ proceeding, moved for relief from the automatic stay imposed by 11 U.S.C. § 362. A telephone conference was scheduled. As a result of that conference an order was entered by the United States Bankruptcy Court for the Western District of Wisconsin, the Hon. Robert D. Martin, presiding, granting the relief requested by John Deere. The order was entered on January 8, 1986. Debtors’ counsel, Roger Merry, did not participate in the telephone conference.

On January 9, 1985, counsel moved on debtors’ behalf for reconsideration of the January 8, 1985, order which was entered as a result of his nonappearance at the telephone conference. On January 14, 1985, he also filed his notice of appeal from this same order which removed the automatic stay.

From here forward the record is somewhat silent, even though all the documents designated by appellants in their amended notice of appeal are included in the record. Nonetheless, the Court must piece together the facts from counsel’s briefs and correspondence.

Apparently, at another telephone conference held on January 15, 1985 in which debtors’ counsel decided to participate, the Bankruptcy Judge reconsidered and vacated the January 8, 1985, order. Reasonable motion costs in the amount of $50 were assessed against the debtors for counsel’s failure to appear at the first hearing.

There is no order in the file memorializing this second conference. Instead, debtors amended their appeal to the reconsidered order of January 8, 1985, and challenged the Bankruptcy Court’s jurisdiction because the attorney for John Deere had not been admitted to practice in the District Court for the Western District of Wisconsin. Debtors further object to the imposition of costs which were not a part of the [77]*77order of January 8, 1985, which order was reconsidered and vacated.

Counsel have exchanged some stout letters, an order requiring debtors’ counsel to pay the $50 was entered and withdrawn, counsel for John Deere has apologized to Roger Merry, and finally, Roger Merry, counsel for the debtors, has paid the $50 to counsel for John Deere.

This, of course, should have concluded the matter, except for those additional proceedings which counsel for debtor may care to pursue to recover his $50. Nonetheless, the appeal continues.

This Court can readily dismiss the appeal on the single basis that there is no order before this Court which can be either affirmed or reversed. To remand would be pointless and would only further multiply the proceedings which should never have been continued in light of debtors’ success at the January 15, 1985 conference where the original order granting John Deere relief from the automatic stay was reconsidered and vacated.

It seems, however, appropriate to continue as if there was an order before the Court awarding costs in the amount of $50 to the secured creditor from debtors and/or their attorney, Roger Merry.

This award is clearly within the discretion of the Bankruptcy Judge, and will not be overturned unless it be shown that an abuse of discretion occurred. There is not that abuse of discretion. Mr. Merry, at the time of the telephone conference on January 2, 1985, was in the office of Madison attorneys. He could have with no difficulty whatsoever advised the Bankruptcy Court of his presence in the city. To do otherwise is, indeed, inexcusable. It represents a failure to extend a common courtesy, and is an inconvenience to opposing counsel and to the Court, which would have been required to replace the call even had communication been made with counsel’s secretary at his office in Belleville.

In spite of counsel’s inappropriate conduct, the Bankruptcy Court reconsidered and vacated its order of January 8, 1985, assessing minimal costs of $50. For this action, the Bankruptcy Court has been subjected in debtors’ memorandum of April 11, 1985, to abusive commentary not in keeping with the professional standards expected in this Federal District Court.

A summation to this point would indicate that there is no order before this Court which may be appealed, and that if there were, the assessment of costs in the amount of $50 is reasonable, necessary, and within the discretion of the Bankruptcy Judge.

Finally, however, debtors challenge the jurisdiction of this Court because the attorney for John Deere had not been admitted to practice before it. No authority for this less-than-substantial suggestion has been brought to the Court’s attention, and an exhaustive research has determined it to be without any legal authority whatsoever.

On November 23, 1983, this Court adopted Local Rule 1 for admission of attorneys, a copy of which is marked “Exhibit A” and attached to this memorandum and order.

This order was adopted pursuant to the general authority given this and other federal courts by 28 U.S.C. § 1654.

§ 1654. Appearance personally or by counsel
In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

Further authority for this rule-making power is provided by 28 U.S.C. § 2071:

§ 2071. Rule-making power generally The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.

It is not in dispute that a United States District Court has the power both to prescribe requirements for admission to [78]*78practice before the district court and to discipline attorneys who have been admitted to practice before the court. The district court has unfettered power to admit and discipline members of its bar independently of and separately from admission and disciplinary procedures of the state courts and the court of appeals.

For a complete discussion of these powers, counsel are referred to Matter of Abrams, 521 F.2d 1094 (3d Cir.1975).

As an alternative to the admission of attorneys to practice before this Court as prescribed in Local Rule 1, counsel may also appear pro hac vice.

The privilege of pro hac vice

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Related

Sanders v. Russell
401 F.2d 241 (Fifth Circuit, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
49 B.R. 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-titus-wiwd-1985.