Salmeron V Enterprise Recovery
Salmeron V Enterprise Recovery
all defendants and on which all parties have had their say. This
For the reasons set forth below, the several motions are granted
Background Summary
1
It should be made plain that the May 2008 order was not
entered with any notion that it would be a death sentence for
this lawsuit, as to which the teaching of such cases as Gabriel
v. Hamlin, 514 F.3d 734, 736-37 (7th Cir. 2008) is that only
egregious delays by litigants can justify such an action. To the
contrary, its sole purpose was to bring forcefully to the
attention of Sanchez, as Salmeron’s counsel, the need to break
his pattern of inattention to his obligations--else this Court
would not have, as it did, invited a motion to rescind that
order.
2
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confidential documents.
Findings of Fact
2
All other dates through Finding 7 were also during 2006,
so any further year references will be omitted from those next
Findings.
3
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a status date set for March 6 to see whether a reply was called
for.3 Just after the March 2 due date (on March 3) Sanchez filed
personal issues as the reasons for the brief delay (Dkt. 33-1).4
3
In the past few years this Court has departed from its
once-near-automatic setting of a 1-2-3 briefing schedule to a
practice of ordering a responsive memorandum followed by an early
status hearing. Experience has taught that litigants often meet
head-on in the initial memorandum and response, thus obviating
the need for a movant to expend time (and the client’s money) in
the preparation and filing of a reply.
4
As will be seen, these Findings refer to Sanchez
throughout, although his co-counsel John Moran (“Moran”) has also
appeared in court--infrequently--from time to time. This Court
has not troubled itself to listen to the tape recordings of the
many hearing dates referred to in these Findings to see if any of
those dates involved Moran’s presence and Sanchez’ absence--but
there is not the slightest question that virtually all (if not
all) of the appearances that involved claimed explanations of and
excuses for delayed filings were by Sanchez.
4
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this Court granted the motion but directed counsel for the
reply.
Rein, LLP (then known as Wiley Rein & Fielding, LLP). Sweet
5
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USA Funds as being for “attorneys’ eyes only” until such time as
there were certain documents for which USA Funds would be seeking
Services Agreement between USA Funds and Sallie Mae. Sweet went
of a modified protective order and that USA Funds would “move for
been entered.”
5
Because all other dates through Finding 15 were also
during 2007, once again no year references will be repeated in
those next Findings.
6
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“sure we can get this worked out to the parties’ and Court’s
satisfaction.”
move for confidential treatment once the order had been entered.
7
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April 30, more than two months after they were due.
before May 11, he had failed to provide any of the items. This
dismiss the Second Amended Complaint would apply to the TAC and
8
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instanter, once more citing his workload as the reason for the
opposing counsel and this Court only minutes before the scheduled
extension was needed (Dkt. 177). This Court granted the motion
inquire about the status of the filing and was told that the
6
With the most limited exceptions, all other dates through
the remaining Findings were also during this year, so that
further year references to those 2008 dates will be omitted.
9
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January 29 status hearing nor filed the TAC before that hearing.
L.P. (Dkt. 185). That pleading alleged (1) that USA Servicing
Services, Inc. (TAC ¶37), (2) that Sallie Mae Servicing, L.P. was
Services, Inc. (id. ¶38) and (3) that Sallie Mae Servicing, L.P.
had been dissolved, with Sallie Mae, Inc. being the successor in
USA Funds moved to dismiss the TAC (Dkt. 192-204), and USA Funds
10
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obligations were cited as reasons for the delay. This Court once
April 18, and on April 21 this Court entered a sua sponte order
Sanchez filed still another motion to extend the filing date for
the responses until May 6 (Dkt. 220). That motion too cited
but it also added his concern over filing the responses before
Finding 21 and did not file the responses before the new
dismiss the TAC (Dkt. 224). In its motion Sallie Mae advised
11
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motion to dismiss.
reopen the case under Rule 59(e) (Dkt. 231).7 On May 15 (perhaps
motion to alter the judgment and reopen the case (Dkt. 233).
7
This is somewhat reminiscent of the old saw that the best
way to get the proverbial mule’s attention is to strike it
between the eyes with a two-by-four (see n.1).
12
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8:17). Even so, Sanchez has still not paid those sanctions to
date.
(Dkt. 266).
28. Just two days later (on June 26) the Chronicle of
13
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(emphasis added):
30. Under the terms of the agreement that had been reached
14
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Stocks_(A_to_Z)/Stocks_U/threadview?m=tm&bn=16717&tid=10906)
finances (http://finance.yahoo.com/).
dismiss and for a protective order (Dkt. 246). On the same day
Servicing Corp. and Sallie Mae Servicing, L.P. filed their motion
to adopt USA Funds’ motion (Dkt. 251), a motion that this Court
motion.
15
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(2) his not keeping the document with the cover letter that
responses and advised him that it did not wish to hear any more
do so by July 11.
order that had long since been submitted to him by USA Funds for
16
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unauthorized disclosures.
17
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for Enterprise.
be pulled back.
hearing the counsel for Sallie Mae, Inc. and the three
counsel further advised this Court that Sallie Mae, Inc. was not
Conclusion of Law
18
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fees, while in the former respect this Court might well have been
less patient and fired a shot across Salmeron’s bow earlier than
sin no more.8
level that would meet the caselaw standard for dismissal, because
procedural violations.
8
Frankly, this Court had not focused on just how often and
how consistently Sanchez had not followed court orders until this
opinion gave it the occasion to review and recount those
violations. Needless to say, a substantial number of the
individual instances had produced a “What, again?” reaction on
this Court’s part--but this is after all one of a couple hundred
civil and criminal cases on this Court’s calendar, so that
keeping count of Sanchez’ offenses would have been at odds with a
constructive budgeting of judicial time.
19
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(something that this Court has made clear is not the triggering
brings to mind the hoary anecdote about the young man who, having
murdered both his parents, asks the court’s mercy on the ground
sought from the beginning by USA Funds in a request that was then
v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976) made that plain
9
This Court has given full consideration to all other
contentions in Relator’s Opposition. None affects the analysis
and result set out here.
20
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and applied that teaching. Two of them merit both citation and
quotation.
Then, after quoting from Nat’l Hockey League, Dotson, id. at 667
went on to say:
Inc., 501 U.S. 32, 49 (1991), Dotson, 321 F.3d at 668 quoted this
21
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Most recently, Wade v. Soo Line R.R., 500 F.3d 559 (7th Cir.
omitted):
all, if Salmeron’s qui tam action has ultimate merit, she will
22
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In all events, what has been set out here amply demonstrates
________________________________________
Milton I. Shadur
Senior United States District Judge
10
Because the current dismissal obviates the need to deal
with the pending dispositive motions filed by defendants, this
Court has no occasion to evaluate that possibility.
23