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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

RICHARD SHARIF, et al., ECF 

 Plaintiffs, Case No. 3:05-CV-01367-B 

vs. 

WELLNESS INTERNATIONAL Honorable, Jane J. Boyle, 

NETWORK, LTD a/k/a WIN, et al., United States District Judge 

 Defendants. 

___________________________________/ 

MOTION FOR RECONSIDERATION

 NOW COME the Plaintiffs, Richard Sharif, on behalf of Soad Wattar, Hafai Kaj 

and Ragda Sharief, together with Plaintiffs, Waqar Khan, Shafquit Khan, Abdul 

Rashid and Shaheen Rashid by and through their attorney, Michael B. Cohen and 

pursuant to Fed.R.Civ.P. 59(e), respectfully moves this Honorable Court to reconsider 

its order of May 7, 2007 overruling Plaintiffs’ objections to the Magistrate Judge’s 

order of April 12, 2007 and the Court’s order of May 8, 2007 denying Plaintiffs’ 

motion for a continuance of the trial date of this matter and to amend the Court’s prior 

trial scheduling order. In support thereof, the following is offered. 

I. Prefatory Statement 

 The Court entered an order on May 7, 2007 overruling Plaintiffs’ objections to the 

Magistrate Judge’s order of April 12, 2007, denying Plaintiffs’ Motion to Vacate 

Alleged Defaulted Admissions. Said order reveals in a footnote at p.1, that based upon 

a motion filed on January 24, 2007 by Mr. Plotkin’s Law Firm to withdraw from this 

matter which the Court granted on January 25, 2007, the undersigned has been acting 

as lead counsel in this matter since September 15, 2006. However, the May 7, 2007 

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order is devoid of any reference to Mr. Plotkin’s Law Firm’s failure to assist the 

undersigned in his efforts to prosecute this matter in a timely matter. Moreover, a 

liberal reading of the May 7th order would leave any reasonable person with the 

impression that the undersigned was not diligent in attempting to obtain the Plaintiffs’ 

records from Mr. Plotkin’s home after the undersigned filed his appearance in this 

matter on September 15, 2006. 

 Likewise, a liberal reading of the order entered by the Court on May 9, 2007, 

wherein the Court denied Plaintiffs’ Consolidated Motion to Continue the Trial Date 

of this matter and to Amend the Court’s prior Scheduling Order would leave a 

reasonable person with the impression the Court determined the undersigned had not 

been diligent in prosecuting this matter on behalf of the Plaintiffs. 

 However, the Court in entering both of these orders appears to have overlooked the 

fact, that during the time period beginning on August 22, 2006 the date upon which the 

Scheduling Order was entered and continuing on through January 25, 2007, the date 

upon which this Court granted Robert Plotkin’s Law Firm’s Motion for Leave for the 

Law Firm of Robert Plotkin, Robert Plotkin and Michael Curletti to withdraw from 

this case, as co-counsels, Robert Plotkin’s Law Firm and Michael Curletti also had a 

responsibility to adhere to the deadlines set forth in the Court’s Scheduling Order set 

on August 22, 2006. 

 Therefore, the withdrawal of Robert Plotkin’s Law Firm, Robert Plotkin and 

Michael Curletti, does not mitigate their responsibilities during the period of time in 

which they remained counsels of record and continued to receive court orders and 

notices. Nevertheless, the Court in its orders places all blame for the failure to meet the 

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deadlines set forth in the Scheduling Order upon the undersigned. Consequently, the 

Plaintiffs argue below, the Court erred in overruling their objections to the Magistrate 

Judge’s ruling and in failing to grant their motion for a continuance of the trial date of 

this matter and in failing to amend the trial scheduling order. 

II. FINDINGS PRESENTED FOR RECONSIDERATION 

A. Applicable Standard in Ruling Upon Rule 59(e) Motions 

 When a party moves to alter or amend a judgment under Rule 59(e), a district court 

is obligated to balance carefully the need for finality with the need to render a just 

decision on the basis of all the facts. Edward H. Bohlin Co., Inc. v. Banning Co., Inc. 6 

F.3d 350, 355 (5th Cir. 1993). The Fifth Circuit in Lavespere v. Niagra Mach. & Tool 

Works, Inc., 910 F.2d 167, 174 (5th Cir.1990), gave district courts guidance in 

evaluating cases under Rule 59(e). The Fifth Circuit directs the district courts to 

“strike the proper balance” between two competing judicial imperatives: “the need to 

bring litigation to an end and the need to render just decisions on the merits.” 

 Accordingly, for the reasons set forth below, the balance tips in favor of this Court 

vacating its orders entered on May 7 and May 9, 2007 to allow the Plaintiffs their day 

in court and to allow this Court to render a just decision on the merits. 

B. The Court’s orders unfiling Plaintiffs’ motions for extensions of time to comply 

with Defendants’ Request for Discovery predicated upon the undersigned’s failure 

to attach a Certificate of Conference as required under Local Rule 7.1(b). 

 

The Court in its Memorandum Opinion of May 7, 2007, at p.10, wrote: 

 “Finally, the Court addresses Plaintiffs’ contention that a such a venial misstep as 

 their failure to attach a certificate of conference to their motions to extend the time to 

 discovery requests should not serve as a basis for having Defendants’ requests for 

 admissions admitted. Plaintiffs miss the point. Plaintiffs had admissions deemed 

 against them not because of their failure to include a certificate of conference but 

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 rather because Plaintiffs never corrected their defective Motions to Extend to comply 

 with the local rules and, and more importantly, because Plaintiffs inexplicably waited 

 until three months after their responses to Defendants’ requests were due to move to 

 withdraw the admissions. At no point did the Court inform Plaintiffs that they could 

 not file a motion to extend their response deadline (in fact, had Plaintiffs properly filed 

 such a motion it assuredly would have been granted); it simply instructed them that 

 the motions that theydid file failed to conform to the local rules of this district. 

 Reasonably prudent counsel would have promptly corrected this error by re-filing the 

 motion with a proper certificate. Plaintiffs’ counsel chose not to do so, and Plaintiffs 

 must now bear the responsibility for that decision and for their own lack of diligence 

 in untimely moving to vacate their deemed admissions.” 

 However, the record of this matter shows that on January 11, 2007, the date upon 

which the Court entered the second order un-filing the Plaintiffs’ Renewed Motion For 

an Extension because a certificate of conference was not attached to said motion, the 

Court also entered an order referring Defendants’ Motion to Compel Discovery to the 

Magistrate Judge. (Dkt. 51). 

 Plaintiffs in their Response to Defendants’ Motion to Compel Discovery which 

included a certificate of conference stated at p.2, ¶-7: 

 “ 7. At this juncture, the undersigned believes that it still take approximately 

 three more weeks until he can provide the Defendants with; (1) initial Rule 26 

 Disclosures; (2) the Defendants’ First Requests for Admissions; (3) Defendants’ 

 First Requests for Written Interrogatories and (4) the Defendants’ Request for 

 documentation and other materials from each of the Plaintiffs.(Dkt. 59, p.2, ¶-7). 

 Magistrate Judge, Paul D. Stickney, subsequently granted Defendants’ Motion to 

Compel and entered an order containing the following language: 

 “ On February 20, 2007, the Court heard Defendants’ Motion to Compel Initial 

 Disclosures, response to Requests for Production, and Answers to Interrogatories 

 [Docket No. 48]. After considering the pleadings and all other evidence and 

 argument submitted to the Court, the Court decides to GRANT the Motion. 

 IT IS HEREBY ORDERED that Plaintiff shall serve response to Defendants’ 

 First Set for Interrogatories, response Defendants’ First Request for Production of 

 Documents, by no later than March 13, 2007. 

 IT IS FURTHER ORDERED that all objections to Defendants’ First Requests 

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 for Production, First Requests for Admissions and First Set of Interrogatories are 

 WAIVED. 

 IT IS FURTHER ORDERED that counsel for Defendants shall submit a brief 

 status report by March 15, 2007 indicating whether Plaintiffs have complied with 

 this order. The Court will defer whether to award attorneys’ fees or to sanction 

 Plaintiffs until that that time. 

 SO ORDERED on this 21st day of February 2007.” (See Copy of the order 

attached hereto as Exhibit No. 3). 

 Therefore, based upon the language set forth in Magistrate Judge Stickney’s order, 

the undersigned believed Plaintiffs had until March 13, 2007, to submit their answers to 

Defendants’ First Request for Admissions. Consequently, the undersigned did not re-file 

Plaintiffs’ Motion for an Extension of Time. 

 However, even if the Court declines to accept the above explanation as cause for the 

undersigned’s decision not to re-file Plaintiffs’ Motion for an Extension of Time which 

the Court states in its order it assuredly would have granted. The Fifth Circuit’s holding 

in Culwell v. City of Forth Worth, 468 F.3d 868 (5th 2006), also provides Plaintiffs with 

a basis for the Court to vacate its judgment entered on May 7, 2007. 

 The facts in this case are similar to facts, in Culwell, wherein the panel found the 

district court had abused its discretion in un-filing a proper and timely motion based upon 

a technical violation of the local rules which would ultimately result in the dismissal of 

the Plaintiff’s case with prejudice. 

 Likewise, in this case, the undersigned’s failure to attach a separate certificate of 

conference to Plaintiffs’ Motion for Extension of Time can surely be characterized as a 

technical violation of the local rules in light of the body of said motion advising the Court 

Defendants’ counsel opposed any extension of time. 

 Additionally, the panel in Culwell, also found that the district court did not sanction or 

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record any disproval of a motion which the plaintiff had previously filed which suffered 

from the same defect as the motion which the district court ordered unfiled. Likewise, in 

this case, although the Court in its order at pp. 10-11, explains why it had ruled upon the 

Plaintiffs’ Motion to Extend the Mediation Deadline Date which suffered from the same 

defect as the Plaintiffs’ Motion For Extension of Time to Comply With Defendants’ First 

Requests for Discovery which the Court ordered the Clerk to un-file. 

 Nonetheless, based upon the panel in Culwell finding such reasoning to be an abuse 

of discretion after the district court had ruled upon a motion which suffered the same type 

of defect as a motion which the district court had ordered the Clerk to unfile. Plaintiffs 

respectfully ask this Court to reconsider its judgment overruling Plaintiffs’ objections to 

the Magistrate Judge’s order entered on May 7, 2007. 

 C. The Court’s findings the undersigned has not been diligent in prosecuting this 

case as grounds for the Court to overrule plaintiffs’ Objections to the Magistrate 

Judges’ Order and as a basis for the Court to deny Plaintiffs’ Motion to Continue 

the trial date and amend the Trial Scheduling Order. 

 The Memorandum Opinion of May 7, 2007 and Order of May 9, 2007, show that the 

Court has found the undersigned has not been diligent in prosecuting this matter on the 

Plaintiffs’ behalf. The Court in making this determination appears to have relied upon 

statements set forth in the motion filed by attorney, Michael Curletti, seeking withdrawal 

of the Law Firm of Robert Plotkin, Robert Plotkin and Michael Curletti as the Plaintiffs’ 

counsel in this case. (Dkt. 56). More specifically, the Court wrote in its of May 9, 2007 at 

pg.3, 

 “Despite becoming Plaintiffs’ chief counsel in September 2006, Cohen states he 

 could not get up to speed on the facts of this case until the end of January 2006, when 

 finally obtained Plaintiff’s documents. Cohen attributes the delay in obtaining the 

 documents on the fact that Plotkin was hospitalized on two occasions between Octo- 

 ber 2006 and January 2007 and the documents were stored at Plotkin’s house. This, 

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 excuse, however, fails to square with Plotkin’s representation in his motion to 

 withdraw that Cohen has been responding to “all of defendants’ discovery 

 requests” since coming on board in September 2006. In any event, Cohen fails 

 to explain why he was prevented from so much as stopping by Plotkin’s 

 house to retreive the documents. Both Plotkin and Cohen, after all, live 

 in Chicago. [Emphasis Added]. 

 With respect to the Court writing the undersigned obtained Plaintiffs’documents at 

the end of January 2006, this date is incorrect and is probably the result of a typing error 

contained in Plaintiffs’ Motion for Continuance. The actual dates, the undersigned had 

obtained the Plaintiffs’ documents from Mr. Plotkin are January 19, 2007 and January 22, 

2007. Moreover, with respect to the Court finding the undersigned’s excuse is contrary to 

Mr. Plotkin’s statements set forth in his motion to withdraw, it is Mr. Plotkin’ delay in 

turning over the Plaintiff’s documents to the undersigned which is the direct cause of the 

undersigned’s not being able to meet the deadlines set forth in the Scheduling Order 

entered on August 22, 2006. Finally, the undersigned was not prevented from stopping 

by Mr. Plotkin’s house to obtain the Plaintiffs’ documents. Rather, it was Mr. Plotkin 

and his associate Michael Curletti who failed to make the Plaintiffs’ documents available 

to the undersigned on at least 16 different occasions during the time period beginning on 

September 15, 2006 and continuing on through to January 19, 2007. (See Declarations of 

the undersigned’s law clerk, Edward Bontkowski and Plaintiff, Richard Shraif, attached 

hereto as Exhibits 1 & 2). 

 Therefore, in light of Mr. Plotkin having possession of all of the Plaintiffs’ documents 

during the time period in which Plaintiffs’ First Requests for Discovery were due, it was 

impossible for the undersigned to be the attorney responsible for responding to the 

Defendants’ Requests for discovery. Consequently, Mr. Plotkin’s statements set forth 

in the motion to withdraw do not square with the true facts showing he was in physical 

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possession of the Plaintiff’s documents at the time Plaintiffs’ responses to the Defendants 

were due. Moreover, the record shows, Mr. Plokin’s motion to withdraw was filed on 

January 24, 2007 and granted by the Court on January 25, 2007. (Dkt. 56-57). Therefore, 

as co-counsels, Mr. Plotkin and Michael Curletti also had a responsibility for adhering to 

court deadlines prior to the Court granting them leave to withdraw. See, e.g. Kagan v. 

Catepillar Tractor Co., 795 F.2d 601, 609 (7th Cir. 1986); Pryor v. United States Postal 

Service, 796 F.2d 281, 287 (5th Cir. 1985). 

 Thus, the Court should hold an evidentiary hearing to make factual findings related to 

the undersigned’s difficulties in obtaining the Plaintiffs’ documents from Mr. Plotkin 

related to this case which formed the Plaintiffs’ basis for requesting a continuance of the 

trial date of this matter. 

III. Conclusion 

 For the reasons stated herein, the circumstances of this case warrant the application of 

Rule 59(e) to vacate the judgment entered on May 7, 2007 and an evidentiary hearing 

should be held to determine if the Court’s was correct in denying Plaintiffs’ Motion for 

a Continuance of the Trial Date of this matter on May 9, 2007. 

 

 Respectfully submitted, 

 /s/ Michael B. Cohen___________

 Michael B. Cohen, attorney for all 

 of the Plaintiffs 

 35 E. Wacker Drive, Suite 1525 

 Chicago, Illinois 60601 

 (312) 726-0739

 cohen2707@sbcglobal.net

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CERTIFICATE OF CONFERENCE

 Pursuant to Local Rule 7.1(b), the undersigned certifies that he communicated with 

counsel for the Defendants, John F. Martin, pertaining to the Plaintiffs’ Motion For 

Reconsideration and was advised the Defendants oppose said motion. 

 /s/_Michael B. Cohen_____

 Michael B. Cohen 

CERTIFICATE OF SERVICE

 The undersigned certifies that on May 21, 2007, a true and correct copy of the 

foregoing has been forwarded to all counsel of record in accordance with Rule 5 of 

Federal Rules of Civil Procedure and/or N.D. Texas Miscellaneous Order 61 (service 

on counsel who have consented to electronic service). 

John F. Martin F. Leon Carter 

Gruber Hurst Johansen & Hail LLP Munck Butrus, PC 

1445 Ross Avenue 13155 Noel Road 

Suite 4800 900 Galleria Tower Three 

Dallas, Texas 75270 Dallas, Texas 75240

jmartin@ghjlaw.com carter@munckbutrus.com

 By: /s/ Michael B. Cohen______

 Michael B. Cohen 

 35 E. Wacker Drive 

 Suite 1525 

 Chicago, Illinois 60601 

 cohen2707@sbcglobal.net

 

 

 

 

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