Arabian American Oil Co. v. Scarfone, 685 F. Supp. 1220 (M.D. Fla. 1988)

Gregg D. Thomas, Holland and Knight, Tampa, Fla., for plaintiff.

R. Patrick Mirk, P.A., Tampa, Fla., David C. Goodwin, Hendrik G. Milne, N. Fraser Schuh, Squire, Sanders & Dempsey, Miami, *1221 Fla., Frederick T. Lowe, Corporate Counsel, Tampa, Fla., for defendants.

KOVACHEVICH, District Judge.

This cause is before the Court on motion for stay of order pending appeal filed by R. Patrick Mirk, attorney for Defendant Lee Letterio Scarfone, request for oral argument, and Plaintiff's opposition to the motion for stay.

This cause of action was filed in this Court on November 16, 1984. In the intervening time Defendant Scarfone has had four different counsel of record, Mr. Mirk being the last attorney to file a notice of appearance. On previous occasions motions to withdraw as counsel have been filed on the eve of taking of depositions, in an apparent attempt to delay proceedings in this cause. Mr. Mirk filed his notice of appearance on August 31, 1987, the previous attorney having filed for leave to withdraw only two months after he became Scarfone's counsel of record.

On December 23, 1987, Magistrate Game issued an order rescheduling summary jury trial from January to April 12 and 13, 1988. A mere twelve days prior to the scheduled summary jury trial, Mr. Mirk filed a motion to withdraw as counsel of record. Granting the motion would have prevented this four year old case, which at this time consists of a ten volume, 290 docket entries, record, from proceeding to summary jury trial as rescheduled. The Court denied the motion to withdraw on April 1, 1988.

The summary jury trial was held as scheduled. On March 8, 1988, this Court granted Plaintiff's motion for a date certain for trial. The Court at that time informed the parties that a jury trial was scheduled for July 5, 1988. Chief Judge Paul Roney, Eleventh Circuit Court of Appeals, had made special arrangements for a visiting judge, the Honorable Anthony Aliamo, to try this Court's extended civil trials, trials longer than 30 hours, during the months of June, July, and August, 1988. This cause is assigned to Judge Aliamo for trial. Judge Aliamo has indicated the trial will begin on or about July 11, 1988, if not sooner.

On April 18, 1988, a little less than three months prior to the scheduled trial, Mr. Mirk filled a renewed motion for leave to withdraw as counsel of record for Defendant Scarfone. As in the first motion, the basis for the motion to withdraw is that Mr. Mirk contends that Defendant Scarfone has failed to fulfill his financial obligations to counsel. Defendant Scarfone filed a pleading in response to the motion to withdraw. Therein, Scarfone denied the allegations of the motion, asserted he had fulfilled his financial obligations to Mirk, and objected to the motion to withdraw. Mr. Scarfone submitted that allowing Mr. Mirk to withdraw would, in all likelihood, result in a "lengthy delay" in the proceedings. Plaintiff also renewed its objections to the motion to withdraw.

The Court, after careful consideration, denied the renewed motion to withdraw, on April 22, 1988. The Court found no legitimate basis for withdrawal. In this Court's opinion, granting the motion to withdraw would have unnecessarily delayed the trial in this cause of action, without an appropriate basis for the delay.

Mr. Mirk has now filed a notice of appeal of the denial of his motions to withdraw and the instant motion to stay proceedings in this cause. The Court finds it would be an unconscionable delay in the progress of this case to grant the motion for stay of proceedings. This cause is scheduled for an extended trial period of seven to eight weeks, by a special visiting judge, assigned by the Chief Judge of this circuit. There is no way an attorney could come into this case at this point and be ready for a trial in July. THIS CASE SHALL GO FORWARD. Accordingly, it is

ORDERED that the motion for stay pending appeal be DENIED.