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Judge King Defaults Wachovia for Blowing Deadline -- Time to Take REALLY Deep Breath.

Mere hours after Judge Gold's excellent FBA speech on mindfulness, Judge King reminded counsel -- including heavyweights at Hunton & Williams and Birmingham's Maynard Cooper & Gale, that it's probably a good idea to double or triple calendar dates to respond to an amended complaint -- even if someone else is supposed to be handling it.

Why, you might ask?

All the Judge did was sua sponte enter a default against Wachovia for failing to respond to the Amended Complaint in an auction rate securities action!

The next day, after much deep breathing exercises I am sure (ed. note -- and possibly a call to the carrier), Birmingham lawyer Carl S. Burkhalter took one for the team (he also referenced his secretary and departed associate):
Defendant has not filed a timely answer to Plaintiff’s amended complaint. The reason for that failure, as explained below and in an accompanying declaration, is that the deadline date for answering Plaintiff’s amended complaint was not entered on the calendar of Carl S. Burkhalter, the undersigned attorney and primary defense counsel in this matter. The undersigned attorney depends on an associate and his secretary to docket deadline dates, but the associate in question (Ms. Prim Formby Escalona) left the firm in January 2011, whereas the undersigned’s secretary was unaware of the deadline and, thus, failed to make a calendar entry. Having said that, it is the undersigned’s duty to meet court-imposed deadlines. He accepts complete responsibility for this failure and he is profoundly sorry for the oversight.
Note to Carl -- your secretary does not get CM/ECF emails, you do.  Did you forward it to her?

Here's what he says happened:
Ordinarily, the February 17th deadline would have been docketed on the undersigned’s calendar by either or both of two persons: the associate on the file or Ms. Laura Juarez, the undersigned’s secretary. See Burkhalter Declaration. Unfortunately, these redundant systems failed in this instance, something that has never before happened in the undersigned’s twenty-year practice of law. The associate, Ms. Prim Formby Escalona, had left the firm in early January 2011 to become Chief Deputy for the Alabama Solicitor General. Id. In the undersigned’s federal court cases, any e-mail notices he receives are usually “auto-forwarded” to Ms. Juarez, who then makes the relevant deadline notation on the undersigned’s calendar. However, for some unknown reason, the “auto-forwarding” rule did not function in this instance, meaning that Ms. Juarez did not make a deadline entry on the undersigned’s calendar.
Oh boy.

Life happens, as they say.

Let's see what the plaintiff has to say about all this:
While Mr. Burkhalter’s efforts to take responsibility for Wachovia’s failure to timely comply with the Court’s Order appear sincere, they ignore the fact that two other current Wachovia lawyers were served with the Order and Amended Complaint. Thus, the Motion sets forth no good cause for their – or Wachovia’s – failure to timely respond. Moreover, the Motion fails to provide evidence in support of its purported defenses to STLA’s claims. Meanwhile, STLA is prejudiced by the delay. For these reasons, the Motion should be denied.
The Court has not yet ruled on the motion.

Who says being a litigator ain't stressful?


  1. "Usually" auto-forwarded does not make sense

  2. he is not taking "full responsibility." he is blaming it on the associate and on the secretary.

  3. What does "sue sponte" mean?


    This "redundant system" (which is not) failed because he abdicates calendaring and receipt of CM/ECFs to other people. Recipe for disaster, which is what happened. Why would you not want to directly receive a communication from the court?

    A true redundant system would be for the attorney to hand-write deadlines on a desk calendar and for his assistant to contemporaneously place the deadline in the Outlook calendar.


  5. But, for the grace of God, go I.

  6. I am profoundly sorry for not personally reviewing emails sent to me by the court. I am profoundly sorry my associate left and we didn't let the court know and I still assumed she was calendaring dates for me on this case. I am profoundly sorry my co-counsel act as mere mail drops. I am profoundly sorry an email sent to me was not auto-forwarded to my secretary. I am profoundly sorry.

  7. Do you think the malpractice carriers have been notified? Or, do they wait until the motion is ruled upon? Which of the firms involved is most likely to bill for this motion?

  8. FREE CARL S. BURKHALTERMarch 17, 2011 at 3:25 PM

    Shirts will soon be available at my etsy shop.

  9. lol.... judge king should let him off the hook. otherwise the 11th will

  10. Above the Law linked to you again!

  11. Group 37 - Perez, Gladys 2012March 18, 2011 at 12:57 AM

    If you file to run against County Court Judge Gladys Perez in the 2012 Election this writer will guarantee you volunteers and cash donations like never before seen in any judicial race in history.

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  12. Makes for one hell of an shitty day, but the judge will let them off the hook. If its an amended complaint, it seems that wachovia already at least entered an appearance, and there is that whole pesky business of justice preferring determinations on the merits over defaults.

    Someone should tell this guy that CM/ECF can be set up to send emails to your secretary directly without you having to "autoforward" anything.

  13. who gives a shit that above the law links thepost? ATL totally sucks.

    hey - i dont see the names of all the firmss you cite, on judge king's order?

  14. Carlton Fields got substituted out for Hunton.

  15. the bank's decision to substitue hunton in seems to have beeb a poor one.

    but teh question remains do you know this???

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