Stupid Attorney Tricks: First Honorary Mention to Keith Cochran of Fitzgerald Knaier, LLP

Writing the caption of a court case is an exacting task. Lawyers seem to get off on getting their clients off on a technicality. One pro se case in Florida was dismissed because the non-attorneys named “First American Home Warranty Corp.”, instead of “First American Home Warranty of Florida”. I kid you not.

Attorney Keith Cochran appears to me to have tried a new trick. He left one party he later claimed to represent off the cover of his first response to the First Amended Complaint that was served to Linda R. Kramer as a co-trustee of a trust and Linda R. Kramer as an individual. Separate copies of the complaint were served and two acknowledgements were signed by Linda R. Kramer.

The clerk failed to enter the individual on the docket when he entered all the other defendants. Kramer and her husband Erik Hunsaker were not named as co-trustees on the original complaint.

Apparently, the clerk did not notice his error when he added the co-trustees. Apparently, the clerk did not notice his error when entering the notices of acknowledgement.

I suspect the plan was to go through the proceedings to finality and then, if I won, pop up and say Linda R. Kramer was not included as an individual. They could put the blame on me, for failing to notice that Kramer was entered in only one capacity and only represented in one capacity.

If I filed a motion for default under FRCP 55 that late in the game, Kramer would have a good argument that there was too much prejudice to her defense.

I am not certain that the clerk’s original error was by mistake. It could have been and Mr. Cochran seized the opportunity, dropping the individual off the list of parties he represented.

Unfortunately for the defendants, I caught the error and filed for default.

Mr. Cochran’s paralegal swore under penalty of perjury: “As a paralegal for over five years, I had never encountered a party not being listed on the ECF system. I believed that by selecting the single option for Linda R. Kramer on the system, it encompassed both Linda R. Kramer as an individual and as co-trustee of the Lynn and Erik’s Trust.”

Um, ok, so why did he remove Linda R. Kramer as an individual from the cover of the document he was filing? Or was it a convenient coincidence that the paralegal and the clerk both omitted the individual?

The Doc of the Day attached below for free download is paralegal Robert M. Wilson’s declaration. Bonus docs are the MTD filed timely (naming only the co-trustees), my motion for “clerk’s default judgment”, an opposition to my motion and my improved motion for clerk’s default.

This would all be much ado about nothing. But Mr. Cochran chose to call the clerk and ask a favor, instead of filing a motion to set aside default. The clerk agreed to add the third party to the docket entry as if it was done timely. He did not make the expected notation that he altered the docket entry two days after the attorney filed.

This caused me to have a melt-down. I called the clerk’s office and spoke to a few individuals. A female clerk told me the addition of Kramer as an individual was improper.

I read the riot act to Mr. Cochran. I told him I had a copy of the original, unaltered docket entry.

Presto, the clerk changed the docket entry back, but refused to enter default.

I did my usual bitch and complain in court documents. The judge, Janis L. Sammartino, instead of correcting the clerk, made a snarky threat to me about “impugning” the clerk in her dismissal of my complaint.

I am appealing the decisions regarding the default and several other decisions.

Attorney Cochran’s argument on appeal is citing caselaw that discusses Default Judgments entered by the judge, not the clerk.

Will the Ninth Circuit Court of Appeals act like the clerk’s default and default judgment granted by a judge are the same thing and there is no need to file a motion under FRCP 55(c) to set aside a clerk’s default?

Stay tuned.