Motion To Vacate Order Allowing Weber To Supplement Record

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION In re: MARK A. ADAMS

CASE NO.: 8:08-cv-01570-RAL

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CORPORATE SPORTS MARKTEING GROUP, INC., ET. AL., Appellees.

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APPELLANT'S VERIFIED MOTION TO VACATE ORDER OF NOVEMBEB 14,U)OS GRANTING APPELLEE'S MOTION TO SUPPLEMENT THE RECORD ON 'APPEAL ,. COMES NOW, the Appellant, Mark A. Adams, and files this Verified Motion to Vacate Order of November 14,2008 Granting Appellee's Motion to Supplement the Record on Appeal showing: 1. On November 14,2008, the Appellee, Timothy W. Weber, appearing pro se, filed the Appellees' Motion to Supplement the Record on Appeal and Extend the Time Period for Filing an Answer Brief to One Week Following the Transmittal of the Complete Record (Docket # 19) (hereinafter referred to as "Weber's Motion to Supplement the Record") with a certificate of service falsely claiming to have served a copy to the undersigned via U.S. Mail. However, the undersigned did not receive a copy of Weber's Motion to Supplement the Record, and instead, had to incur charges to obtain a copy through PACER. 2. The record shows that no hearing was held on Weber's Motion to Supplement the Record before it was purportedly granted by entry of an order by the Honorable &chard A. Lazzara on November 14,2008 (Docket # 20). Although this Court's online docket indicates that the foregoing order was signed by the Honorable Richard A. Lazzara, the signature is type

written, and the order was not mailed to the undersigned until November 17,2008 or later. See a copy of the order of November 14,2008 with a copy of the clerk's envelope transmitting the same with a postal meter stamp dated November 17,2008 attached as Exhibit A.

3. IJndoubtedly, as attorneys are required to be familiar with and comply with the rules of procedure and are prohibited from filing baseless or misleadiig documents with the court, most motions to enlarge time which this Court reviews are likely timely and show good cause why an enlargement of time should be granted and in instances when the motion is untimely, also show that the failure to act was the result of excusable neglect.

4. However, the record shows that as usual, Weber filed a baseless and misleading motion which failed to meet the basic requirements for a motion to enlarge time, perhaps that is why he failed to serve a copy to me. Specifically, Weber's Motion to Supplement the Record was untimely, failed to show good cause why an extension of time should be granted, failed to show that his failure to act in a timely manner was the result of excusable neglect, and was filed on the Friday just before his answer brief was due.

5. Furthermore, in an obvious effort to mislead this Court, Weber falsely claimed that no party would be prejudiced by granting Weber's Motion to Supplement the Record. However, Weber's false claim is absurd as the undersigned filed and served the Appellant's Initial Brief (Docket # 18) on October 3 1,2008, a fact which Weber failed to mention, and Weber sought to introduce documents not addressed in the Initial Brief, an action which would obviously cause prejudice to the undersigned Appellant.

6. In addition, rather than explaining to this Court why his motion was untimely, why his failure to act timely should be excused, and showing why his motion should be granted, Weber

falsely and misleadingly claimed that Weber's Motion to Supplement the Record should be granted because the undersigned did not file the "entire record on appeal" claiming that the record which was filed with this Court violates this Court's order entered on September 9, 2008 (Docket # 8). Once again, Weber either failed to read the governing rule of procedure in violation of his duty to this Court or he has intentionally misled this Court. The record on appeal is defined and explained by Federal Rule of Bankruptcy Procedure 8006 which states in pertinent part, "The record on appeal shall include the items so designated by the parties, the notice of appeal, the judgment, order, or dccrec appcalcd fiom, and any opinion,

findings of fact, and conclusions of law of the court." (Emphasis added.) 7. In Weber's Motion to Supplement the Record, Weber admitted that he was aware that on September 22,2008, the undersigned filed a designation of items to be included in the record and a statement of issues to be presented which were served to Weber via U.S. Mail on September 20,2008, and that the items designated as the record on appeal were filed with this Court on September 29,2008. 8. Apparently, Weber failed to notice or chose to ignore the pertinent part of Rule 8006 which states, "Within 10 days after service of the appellant's statement the appellee may file and serve on the appellant a designation of additional items to be included in the record on appeal.. .." Instead, in paragraph 9 of Weber's Motion to Supplement the Record, Weber falsely stated, "As a result of the confusion and procedural irregularity caused by the pro se Appellant's actions, Appellees have never becn afforded an opportunity to file a dcsignation of additional items to be included in the record." 9. Pursuant to Rule 8006 and Rule 9006 governing time, if Weber had wanted to file a timely designation of additional items to be included in the record, he should have done so by

October 3,2008. Instead, Weber waited until November 14,2008,42 days past the deadline

and two weeks after the Appellant's Initial Briefhad been filed, to seek to tnclude add~ttonal items in the record by filmy a baseless and misleading motion with thls Court 10. As Wekr's Motion to Supplement the Record was untimely, failed to show good cause why

an extension of time should be granted, filed to show that his failure to act in a timely manner was the resdt of excusable neglect, was filed an the Friday just before hrs answer br~efwas due, was also false and misleading, and was not served to the undersigned and as Weber~sMotion to Supplement the Record was granted without notice and an opportunlty to be heard being afforded to the undersigned, the order grantlng Weher's Motion to Supplement the Record entered on November 14,2008 should be vacated. 1I. 'Curthermore, as Weber has engaged in bad faith conduct and as the undersigned has suffered

prejudice as a direct result of such egregious unethical conduct, this Court r;houid strnkc the supplemental items and Weber's Answer nnef fmm the record and proceed with the determination of this appeal based on the Appellant's Initial Brief. WHEREFORE, d ~ Appellant e respectfully requests that this Court enter an order vacating the order entered on November 14,2008 whch granted Weber's Motion to Suppiement the Record, striking the supplementat items and Webr's Answer Brief from the record, and

proceeding wlth the determination of this appeal based on the Appellant's lnltial Rnef VERIFICATION

I !rider penalties of perjury, I declare that I have mad the foregoing and the facts stated in it are true.

ark A. Adams

Date

CERTIFICATE OF SERVICE

I hereby certify that 1 have served a true and correct copy of this document via U.S. Mail to Donald R. Kirk, Esquire, of Fowler White B o g g Banker, P.A., counsel for Timothy W Weber, at P.O. Box 1438; Tampa, FL 33601; and to Timothy W. Weber, Esyuirc, pro se of

Ratkglia, Ross, Dicw & Wein, P.A., at P. 0.Box 41 100; St Petersburg, FL 33743 on rhix ., ,

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day of December, 2008.

Mark A. Adams JIIIMBA 4129 Balington Dr. Valrico, FL. 33596 Telephone: 81 3-643-4412

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Exhibit A

Case 8:08-cv-01570-RAL

Document 20

Filed 1111412008

Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MARK A. ADAMS. Appellant, CASE NO: 8:08-CV-1570-T-26

CORPOIU7'1<SPORTS MARKI:,'I'ING GROIJP, INC., el al.,

ORDER UPON DUE CONSIDERATION, it is ORDERED AND ADJUDGED as follows: 1)

Appellee's Motion to Supplement the Record on Appeal and 1:xtend the

Time Period for Filing an Answer Brief (Dkt. 19) is granted. 2)

l'hc Clerk of the Bankruptcy Court is directed to supplement the record on

appeal in this casc wilh the docuinents specified on pages 5 and 6 of the motion.

3)

Appellees shall tile their answer brief within one week of the

supplementation of the record as directed in paragraph two. 4)

The Clerk of this Court is directed to forward a copy of Appellee's motion

and this order to the Clerk of the Bankruptcy Court.

Case 8:OR-cv-01570-RAL

Document 20

Filed 11/14/2008

Page 2 of 2

DONE AND ORDERED at 'Tampa, Florida, on November 14,2008

siRichard A. Lazzu~.a RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counscl ol'liccord Clcrk, Bankruptcy Court

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA pFFIC?SOF THE C L E R K UNITED STATES C O U R T H O U S E

'KAMFA, F~ORIDA33602 OFFICIALBUSINESS