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Case 3:07-cv-00032-HWM-HTS
Document 23
Filed 06/25/2007
Page 1 of 5
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
ALESCO FINANCIAL INC., a Maryland corporation formerly known as Sunset Financial Resources, Inc.,
Case No.: 3:07-cv-00032-HWM-MMH
Petitioner, vs. ANTHONY R. PORTER, an individual, DOROTHY M. PORTER, an individual, FRANK AMELUNG, an individual, EUGENIA AMELUNG, an individual, and RICHARD AMELUNG, an individual, Respondents. / MOTION OF RESPONDENTS FRANK AMELUNG, EUGENIA AMELUNG, AND RICHARD AMELUNG FOR ENLARGEMENT OF TIME TO RESPOND TO INTERROGATORIES Respondents, Frank Amelung, Eugenia Amelung and Richard Amelung (the "Amelungs"), pursuant to Rule 6(b), Federal Rules of Civil Procedure, and Rule 3.01, Rules of the United States District Court for the Middle District of Florida, respectfully request entry of an Order enlarging by an additional thirty days the time within which they are required to respond to interrogatories served on them herein by Petitioner, Alesco Financial Inc. ("Alesco"), and in support thereof say: 1.
On March 29, 2007, this Court entered its Judgment in a Civil Case in favor of
Alesco and against the Amelungs, among others.
{JA328610;1}
Case 3:07-cv-00032-HWM-HTS
2.
Document 23
Filed 06/25/2007
Page 2 of 5
On May 25, 2007, Alesco served on each of the Amelungs, through counsel, its
interrogatories in aid of execution of the Judgment. True and correct copies of Alesco's interrogatories to each of the Amelungs are attached hereto as Composite Exhibit "A". 3.
The Amelungs' responses to the interrogatories are required to be served no
later than June 25, 2007. 4.
On June 5, 2007, Frank Amelung and Richard Amelung, among others, were
sued in that certain action styled State of North Carolina, ex rel. Roy Cooper, Attorney General v. Peerless Real Estate Services, Inc., et. al.; General Court of Justice, Superior Court Division, Wake County, North Carolina (the "North Carolina Action"), which action was bought by the Attorney General of the State of North Carolina for injunctive relief and damages arising out of activities of business enterprises with which the Amelungs were involved. A copy of the complaint in the North Carolina Action is attached hereto as Exhibit "B". 5.
On June 6, 2007, the Court in the North Carolina Action entered an Order
appointing Joseph W. Grier, III, as receiver ( the "Receiver") for the corporate defendants joined in the North Carolina Action. A copy of the Order appointing the Receiver is attached hereto as Exhibit "C". 6.
Following his appointment, the Receiver took possession of substantial
portions of the corporate and business records of the corporate defendants named in the North Carolina Action. 7.
On June 5, 2007, representatives of the Federal Rule of Investigation ("FBI")
operating from its office in Charlotte, North Carolina, seized substantial additional corporate and business records from business offices in Spruce Pine, North Carolina, through which the Amelungs operated numerous business entities. {JA328610;1}
2 of 5
Case 3:07-cv-00032-HWM-HTS
8.
Document 23
Filed 06/25/2007
Page 3 of 5
Although the Amelungs, and each of them, have prepared responses to portions
of Alesco's interrogatories, the Amelungs are not able to access the substantial corporate and business records seized by the Receiver or the FBI, and accordingly, the Amelungs are unable to assure the thoroughness of their answers to those interrogatories for which they have partial information, nor have they been able to compile responsive information to numerous other interrogatories, the responsive information for which can be derived only from the corporate and business records which have been seized. 9.
The Amelungs request an enlargement of an additional thirty days within
which to respond to Alesco's interrogatories so that they may attempt to coordinate with the Receiver and the FBI to recover or obtain access to the necessary corporate and business records to permit their thorough and complete responses to Alesco's interrogatories. 10.
This motion and request of enlargement is not interposed for the purposes of
delay, but rather seeks additional time to permit the Amelungs to assure that their discovery responses are as complete as possible. WHEREFORE, Respondents, Frank Amelung, Eugenia Amelung and Richard Amelung, request the Court to enter its Order enlarging by thirty days, through and including July 25, 2007, the time within which they are required to respond to Aleso's interrogatories served on May 25, 2007. MEMORANDUM OF LAW Rule 6(b), Federal Rules of Civil Procedures, states in pertinent part that: When, by these rules, or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed . . . .
{JA328610;1}
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Case 3:07-cv-00032-HWM-HTS
Document 23
Filed 06/25/2007
Page 4 of 5
The extension of time requested by this Motion is made for good cause, will not adversely affect any party, and will promote the Court’s efficient administration of this matter. The Court has wide discretion under Rule 6, Federal Rules of Civil Procedures, to grant enlargements of time. Wood v. Allied Concord Fin. Corp., 373 F.2d 733, 734 (5th Cir. 1967); Harris v. Siegel, 438 F.Supp. 510, 513 (S.D. Fla. 1977). This Motion is not being made for the purpose of obstruction or delay, but is instead a good-faith request for an extension of time in order to permit the Amelungs an opportunity to obtain access to their corporate and business records such that their discovery responses may be as thorough and accurate as possible. CERTIFICATION AS TO CONSULTATION The undersigned, pursuant to Rule 3.01(g), Rules of the United States District Court for the Middle District of Florida, hereby certifies that he has conferred with counsel for Alesco with respect to the foregoing motion for enlargement of time, but reports that Alesco is unwilling to agree to the requested enlargement of time. DATED: June 25, 2007 AKERMAN SENTERFITT By: /s/ John B. Macdonald John B. Macdonald Florida Bar Number: 230340 50 N. Laura St., Suite 2500 Jacksonville, FL 32202 Email: [email protected] 904-798-3700 Telephone 904-798-3730 Telefax Attorneys for Frank Amelung, Eugenia Amelung, and Richard Amelung
{JA328610;1}
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Case 3:07-cv-00032-HWM-HTS
Document 23
Filed 06/25/2007
Page 5 of 5
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished either by electronic notification or by United States Mail, postage prepaid and properly addressed, this 25th day of June, 2007, to Eric Lee Hearn, Esq., Moseley, Prichard, Parrish, Knight & Jones, 501 W. Bay Street, Suite 200, Jacksonville, FL 32202. /s/ John B. Macdonald Attorney
{JA328610;1}
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Document 23
Filed 06/25/2007
Page 1 of 5
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
ALESCO FINANCIAL INC., a Maryland corporation formerly known as Sunset Financial Resources, Inc.,
Case No.: 3:07-cv-00032-HWM-MMH
Petitioner, vs. ANTHONY R. PORTER, an individual, DOROTHY M. PORTER, an individual, FRANK AMELUNG, an individual, EUGENIA AMELUNG, an individual, and RICHARD AMELUNG, an individual, Respondents. / MOTION OF RESPONDENTS FRANK AMELUNG, EUGENIA AMELUNG, AND RICHARD AMELUNG FOR ENLARGEMENT OF TIME TO RESPOND TO INTERROGATORIES Respondents, Frank Amelung, Eugenia Amelung and Richard Amelung (the "Amelungs"), pursuant to Rule 6(b), Federal Rules of Civil Procedure, and Rule 3.01, Rules of the United States District Court for the Middle District of Florida, respectfully request entry of an Order enlarging by an additional thirty days the time within which they are required to respond to interrogatories served on them herein by Petitioner, Alesco Financial Inc. ("Alesco"), and in support thereof say: 1.
On March 29, 2007, this Court entered its Judgment in a Civil Case in favor of
Alesco and against the Amelungs, among others.
{JA328610;1}
Case 3:07-cv-00032-HWM-HTS
2.
Document 23
Filed 06/25/2007
Page 2 of 5
On May 25, 2007, Alesco served on each of the Amelungs, through counsel, its
interrogatories in aid of execution of the Judgment. True and correct copies of Alesco's interrogatories to each of the Amelungs are attached hereto as Composite Exhibit "A". 3.
The Amelungs' responses to the interrogatories are required to be served no
later than June 25, 2007. 4.
On June 5, 2007, Frank Amelung and Richard Amelung, among others, were
sued in that certain action styled State of North Carolina, ex rel. Roy Cooper, Attorney General v. Peerless Real Estate Services, Inc., et. al.; General Court of Justice, Superior Court Division, Wake County, North Carolina (the "North Carolina Action"), which action was bought by the Attorney General of the State of North Carolina for injunctive relief and damages arising out of activities of business enterprises with which the Amelungs were involved. A copy of the complaint in the North Carolina Action is attached hereto as Exhibit "B". 5.
On June 6, 2007, the Court in the North Carolina Action entered an Order
appointing Joseph W. Grier, III, as receiver ( the "Receiver") for the corporate defendants joined in the North Carolina Action. A copy of the Order appointing the Receiver is attached hereto as Exhibit "C". 6.
Following his appointment, the Receiver took possession of substantial
portions of the corporate and business records of the corporate defendants named in the North Carolina Action. 7.
On June 5, 2007, representatives of the Federal Rule of Investigation ("FBI")
operating from its office in Charlotte, North Carolina, seized substantial additional corporate and business records from business offices in Spruce Pine, North Carolina, through which the Amelungs operated numerous business entities. {JA328610;1}
2 of 5
Case 3:07-cv-00032-HWM-HTS
8.
Document 23
Filed 06/25/2007
Page 3 of 5
Although the Amelungs, and each of them, have prepared responses to portions
of Alesco's interrogatories, the Amelungs are not able to access the substantial corporate and business records seized by the Receiver or the FBI, and accordingly, the Amelungs are unable to assure the thoroughness of their answers to those interrogatories for which they have partial information, nor have they been able to compile responsive information to numerous other interrogatories, the responsive information for which can be derived only from the corporate and business records which have been seized. 9.
The Amelungs request an enlargement of an additional thirty days within
which to respond to Alesco's interrogatories so that they may attempt to coordinate with the Receiver and the FBI to recover or obtain access to the necessary corporate and business records to permit their thorough and complete responses to Alesco's interrogatories. 10.
This motion and request of enlargement is not interposed for the purposes of
delay, but rather seeks additional time to permit the Amelungs to assure that their discovery responses are as complete as possible. WHEREFORE, Respondents, Frank Amelung, Eugenia Amelung and Richard Amelung, request the Court to enter its Order enlarging by thirty days, through and including July 25, 2007, the time within which they are required to respond to Aleso's interrogatories served on May 25, 2007. MEMORANDUM OF LAW Rule 6(b), Federal Rules of Civil Procedures, states in pertinent part that: When, by these rules, or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed . . . .
{JA328610;1}
3 of 5
Case 3:07-cv-00032-HWM-HTS
Document 23
Filed 06/25/2007
Page 4 of 5
The extension of time requested by this Motion is made for good cause, will not adversely affect any party, and will promote the Court’s efficient administration of this matter. The Court has wide discretion under Rule 6, Federal Rules of Civil Procedures, to grant enlargements of time. Wood v. Allied Concord Fin. Corp., 373 F.2d 733, 734 (5th Cir. 1967); Harris v. Siegel, 438 F.Supp. 510, 513 (S.D. Fla. 1977). This Motion is not being made for the purpose of obstruction or delay, but is instead a good-faith request for an extension of time in order to permit the Amelungs an opportunity to obtain access to their corporate and business records such that their discovery responses may be as thorough and accurate as possible. CERTIFICATION AS TO CONSULTATION The undersigned, pursuant to Rule 3.01(g), Rules of the United States District Court for the Middle District of Florida, hereby certifies that he has conferred with counsel for Alesco with respect to the foregoing motion for enlargement of time, but reports that Alesco is unwilling to agree to the requested enlargement of time. DATED: June 25, 2007 AKERMAN SENTERFITT By: /s/ John B. Macdonald John B. Macdonald Florida Bar Number: 230340 50 N. Laura St., Suite 2500 Jacksonville, FL 32202 Email: [email protected] 904-798-3700 Telephone 904-798-3730 Telefax Attorneys for Frank Amelung, Eugenia Amelung, and Richard Amelung
{JA328610;1}
4 of 5
Case 3:07-cv-00032-HWM-HTS
Document 23
Filed 06/25/2007
Page 5 of 5
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished either by electronic notification or by United States Mail, postage prepaid and properly addressed, this 25th day of June, 2007, to Eric Lee Hearn, Esq., Moseley, Prichard, Parrish, Knight & Jones, 501 W. Bay Street, Suite 200, Jacksonville, FL 32202. /s/ John B. Macdonald Attorney
{JA328610;1}
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