I Can’t Believe There’s No Butter

Don’t get me started on why I don’t prefer hourly billing arrangements.

We were retained by a lumber supplier, who sold building materials to a construction company, which I will refer to as “Dunne Construction”, pursuant to a standard credit application with personal guarantee signed by Harry Dunne. The materials were delivered, and a receipt was signed by the guarantor when the materials were delivered. The project was completed, materials used, and no payment received.

So, as you’d expect, we were retained to sue. There was no response to our calls and letter, so we filed suit. Service of process was made on Dunne at his home, personally, in-hand, where he operated his business. Before we received the affidavit of service from the process server, we received a Pre-Answer Motion to Dismiss from an attorney, whom I shall refer to as “Lloyd Christmas”, who alleged that service of process was not made, yet a copy of the Summons and Complaint was annexed to the motion papers.

 I called up Mr. Christmas, and left a voice mail. “I didn’t even get confirmation of service, and you’ve got a copy of the pleadings in your papers, why did you make this motion?”

No response. But a few days later, I received a letter in the mail from Mr. Christmas, requesting a conference to discuss the matter. So, I called him up, and left a message.  No response. I then received another letter in the mail, stating that he received my message, and asked for times where I would be available for a discussion. I called him again, and once again, left a message. This time, I listed a spread of dates that I was available. No response at all. This just didn’t seem like a Smart Balance between effective communication and professional correspondence.

So, we interposed opposition to the motion to dismiss. On the return date of the motion, Mr. Christmas did not appear in Court, and sent a per diem appearance attorney, who had no knowledge of the case. The Court took the motion on submission.

Within a week, (which is Breakstone speed for getting decisions back!) the Court categorically denied the motion, and directed the Defendant to interpose an Answer. Within a week, we received an Answer, along with 76 pages of discovery demands, asking for a Blue Bonnet of ridiculous items, ranging from names and titles of all salespeople and truck drivers at the creditor, names and addresses of the manufacturers of each and every item that was sold, and the creditor’s trucking and delivery schedules. This demand was utter nonsense, a Country Crock.

I called Mr. Christmas again, and as you’d expect, no response.  So, we prepared and served responses to the discovery essentially objecting to all the irrelevant demands, and supplied copies of the credit application, invoices, and delivery receipts.  I then received a letter in response from Mr. Christmas, asking to confirm whether or not we had the original documents, which he would like to inspect in person, and requested an in-person meeting to do so.

At this point, my associate asked if we should schedule that meeting. It became painfully obvious to me that Mr. Christmas was just churning.

In an effort to move the case along, I shortened the process, and we whipped up a Motion for Summary Judgment.  Mr. Christmas requested an adjournment for 120 days. We refused, and consented to 30 days. On the 29th day, Mr. Christmas asked for more time, and we declined. On the return date of the Motion, the Court granted a final 30 day adjournment. On the 29th day, we received a terse opposition to our motion, essentially claiming that we did not comply with discovery.

Suffice to say the Court granted judgment, and getting an order like that feels like Kerrygold.

Timothy Wan is the Senior Partner of the firm Smith Carroad Levy Wan & Parikh, in Commack, New York, and can be reached at twan@smithcarroad.com. This is actually the third time that Tim has referenced a Jim Carrey movie, and assures you all that he is not really a fan of Jim Carrey.