IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WARREN CLAYBAR, et al., )

 )

Plaintiffs, )

)

v. ) CIVIL ACTION 14-0205-WS-C

 )

MICHAEL R. HUFFMAN, et al., )

 )

Defendants. )

ORDER

This matter came before the Court for a Final Pretrial Conference on October 21, 2015. 

The stated purposes of the conference were not only to make final preparations for the November 

2015 non-jury trial setting of plaintiffs’ claims against defendant Michael R. Huffman,1 but also 

to resolve certain representation issues raised by defendants’ counsel of record’s Renewed 

Motion to Withdraw (doc. 60), which set forth in detail defendants’ history of nonresponsiveness and failure to pay invoices of both counsel and third-party vendors (such as court 

reporters and videographers).

In order to resolve all of these issues fairly and efficiently without disrupting the current 

trial setting, the Court concluded that Michael Huffman’s presence at the Final Pretrial 

Conference was necessary, along with one or both of his lawyers. Through a series of court 

orders, Huffman was directed to attend the conference personally. On October 1, 2015, 

Magistrate Judge Cassady entered an Order stating as follows: “[T]he Court ORDERS 

MICHAEL R. HUFFMAN to attend the final pretrial conference scheduled before Chief Judge 

Steele on October 13, 2015, at 9:30 a.m., in Mobile, Alabama to participate in the discussion 

 1 Plaintiffs also assert claims in this action against another defendant, Huffman 

Construction, Inc.; however, those claims were stayed by Order (doc. 37) entered on March 6, 

2015, upon notice that Huffman Construction had filed a Chapter 11 bankruptcy petition in the 

U.S. Bankruptcy Court for the Northern District of Indiana. All indications before the Court are 

that the automatic stay remains in effect as to plaintiffs’ claims against Huffman Construction at 

this time.

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of the issues highlighted in this Order.” (Doc. 56, at 4.) On October 2, 2015, the undersigned 

entered an Order resetting the Final Pretrial Conference for October 21, 2015 at 2:00 p.m., to

accommodate scheduling conflicts with the undersigned’s criminal trial docket. The October 2

Order specifically noted that Huffman had been ordered to attend the Final Pretrial Conference, 

and directed the Clerk of Court to mail a copy of such Order to him to ensure his awareness of 

the new setting. (See doc. 57.) On October 14, 2015, the undersigned entered another Order 

carrying defendants’ counsel’s Renewed Motion to Withdraw to the pretrial conference and 

explaining as follows:

“[The Final Pretrial Conference] remains set for October 21, 2015 at 2:00 p.m. 

Both defendant Michael R. Huffman and at least one of his counsel of record are 

ordered to attend such conference, at which time the undersigned will hear from 

counsel and client alike regarding the representation issues described in the 

Renewed Motion and ... will forge a pathway forward to trial, which remains set 

for the November 2015 civil term.”

(Doc. 61, at 1-2.) Again, the Clerk of Court mailed a copy of the October 14 Order to Huffman 

at his address of record.

Michael Huffman did not contact court personnel concerning these orders until the 

morning of October 20, 2015 (the eve of the pretrial conference), when he personally called 

chambers and asked to speak with the undersigned. Chambers staff correctly informed Huffman 

that no such direct communication was permissible under applicable rules. Staff further 

explained that if Huffman sought any relief or wanted to submit any information or requests to 

the Court, he must do so via written filing made through the Clerk’s Office. At no time during 

this brief telephone call did Huffman reveal any facts or circumstances that might justify his nonattendance at the Final Pretrial Conference, much less warrant a continuance of same. To be 

clear, Huffman did not intimate during the call that he was requesting a continuance or asking to 

be relieved of the obligation to attend the Final Pretrial Conference.

On the morning of October 21, 2015 (less than five hours before the Final Pretrial 

Conference), Huffman filed a short, one-paragraph email message with the assistance of his 

estranged counsel of record. In its entirety, the body of that email consisted of the following text 

(typographical errors in original):

“Please excuse my absence from the pre trail today. I am on a project in 

Louisiana and cannot leave. I’m aware of john and clay filing another motion to 

withdraw from this case. I simply cannot afford to continue to pay them. We 

have payed in excess of $250,000.00 in attorney fees. I will either 

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havetoreprrsent myself or file personal bankruptcy. I’m doing my best to get this 

all worked out but I order to do so I must work. Sorry if this an enconvieniance 

for anyone.”

(Doc. 63.) Neither the undersigned’s staff nor Clerk’s Office personnel have had further contact

or interactions with Huffman following his submission of that email. At no point did the 

undersigned rule – much less any court official notify Huffman – that he was excused from 

attending the Final Pretrial Conference.

At the appointed hour of 2:00 p.m. on October 21, 2015, the undersigned convened the 

Final Pretrial Conference in this matter as scheduled. Plaintiffs’ counsel of record (John P. 

Kavanagh, Jr. and Brian McEwing) attended, the latter having flown in from out of state to 

participate in the conference. One of Huffman’s attorneys of record (A. Clay Rankin, III) was 

also present, albeit with the hope of being relieved of all further duties and responsibilities in this 

matter at the earliest possible time. Huffman was nowhere to be seen, despite his actual 

knowledge of both the Final Pretrial Conference and the Court’s unambiguous rulings mandating

his personal appearance. Via his unexcused absence, Huffman effectively prevented any 

meaningful discussion from occurring at the conference with regard to final trial preparations. 

The result is that, by electing not to comply with court orders, Huffman needlessly caused both 

judicial and litigant resources to be squandered, and derailed a trial setting that was fixed back in 

September 2014. In other words, Huffman’s disobedience reduced the Final Pretrial Conference 

to a colossal waste of time for all concerned.

Insofar as Huffman intended for his October 21 email message to excuse his participation 

in the Final Pretrial Conference, that submission is unsatisfactory. Again, three separate written 

judicial directives had placed Huffman squarely on notice that he was ordered to attend the 

conference himself. The Orders dated October 1, October 2 and October 14 were not phrased as 

invitations for Huffman to attend, nor as conferring upon him a discretionary, aspirational option 

to do so if it suited his fancy. These Orders were framed in unambiguous, mandatory terms. 

And there is no question that Huffman was aware of those judicial directives; after all, both the 

October 20 telephone call and the October 21 email evince Huffman’s subjective understanding 

that he was expected to appear in court for the pretrial conference. Nonetheless, the gravamen of 

his message was that Huffman had elected to stay at a job site in lieu of coming to court. 

Nothing in the October 21 email suggested that Huffman was physically unable to leave his work 

station, that doing so would expose him to severe financial or personal hardship, or that there 

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were emergencies or exigent circumstances in play. Instead, Huffman simply indicated that he 

was going to stay at work and breezily concluded, “Sorry if this an enconvieniance for anyone.” 

Mandatory court appearances are not a matter of convenience, to be waved off casually by one 

who would rather be somewhere else. Rarely does this Court encounter a litigant who would not

prefer to be somewhere else carrying on his or her normal workaday affairs, rather than coming 

to federal court in response to a court order. And yet, every single day, myriad case participants, 

witnesses and others set aside their professional and personal obligations and come to court when 

commanded to do so. The orderly, efficient administration of justice depends on it. Not 

Huffman. For those who do not appear in court when ordered to do so, there are – and must be –

significant adverse consequences. This Order delineates those consequences.

In light of the foregoing, it is ordered as follows:

1. Based on the substantial showing that defendants have failed to communicate 

with their retained counsel, have failed to pay substantial invoices now due and 

owing to counsel and third-party vendors, and have otherwise failed to comply 

with the terms of their engagement agreement, the Renewed Motion to Withdraw 

as Counsel (doc. 60) is granted. Attorneys Rankin and Jernigan are hereby 

deemed withdrawn from this matter and are relieved of any further obligation to 

represent or appear on behalf of Huffman and Huffman Construction in these 

proceedings. The Clerk of Court is directed to terminate Rankin and Jernigan as 

counsel of record for defendants. Henceforth (or at least until such time as 

substitute counsel appears), all court notices intended for Huffman or Huffman 

Construction shall be served on those defendants directly at Michael Huffman’s 

address of record, to-wit: 10149 S. 300 East, Warren, IN 46792. The same 

applies to plaintiffs’ filings, which plaintiffs must serve on defendants.

2. For defendant Michael Huffman’s willful disobedience, without cause, of 

multiple court orders compelling his attendance at the Final Pretrial Conference, 

the Court hereby imposes the sanction of default.

2

 “A defendant, by his default, 

 2 “A court may impose sanctions for litigation misconduct under its inherent 

power.” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 

2009). “The key to unlocking a court’s inherent power is a finding of bad faith.” Id. (ctation 

omitted). “A party demonstrates bad faith by delaying or disrupting the litigation or hampering 

(Continued)

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admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts 

by the judgment, and is barred from contesting on appeal the facts thus 

established.” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 

1298, 1307 (11th Cir. 2009) (citation and internal quotation marks omitted). 

3. Notwithstanding Huffman’s default, the issue of damages remains unresolved.3 

At the Final Pretrial Conference, plaintiffs’ counsel expressed their desire to 

prove up damages via written submission, rather than a hearing. Accordingly, 

 

enforcement of a court order.” In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1304 (11th Cir. 

2006) (citation and internal marks omitted). Huffman has unquestionably delayed and disrupted 

this litigation by disregarding multiple orders to appear at the Final Pretrial Conference, resulting 

in a needless waste of judicial and litigant resources and effectively scuttling the November trial 

setting of this case without good reason. Additionally, sanctions are appropriate under the 

Federal Rules of Civil Procedure, which authorize the sanction of “rendering a default judgment 

against the disobedient party” when that party “fails to appear at a scheduling or other pretrial 

conference” or “fails to obey a scheduling or other pretrial order.” Rule 16(f)(1)(A) & (C), 

Fed.R.Civ.P.; Rule 37(b)(2)(A)(vi), Fed.R.Civ.P. The Court understands, of course, that default 

is a severe sanction, not to be cavalierly imposed. See, e.g., Rasmussen v. Central Florida 

Council Boy Scouts of America, Inc., 412 Fed.Appx. 230, 232 (11th Cir. Feb. 2, 2011) (“[I]n 

order to impose the severe sanction of a default judgment, the district court must make a finding 

of willful or bad faith failure to comply. ... The district court must also find that lesser sanctions 

are not sufficient.”) (citations omitted). Here, however, the Court expressly finds that Huffman’s 

disobedience was willful and in bad faith, and that lesser sanctions will not suffice. Again, 

Huffman was notified on three different occasions by three different written orders (of which he 

had actual notice) that he must personally attend the Final Pretrial Conference. In lieu of 

attending, Huffman (whose trial testimony in related litigation in this District Court reveals him 

to be an experienced, sophisticated businessman) simply fired off an e-mail on the morning of 

the conference that announced his intention to remain at work and apologized if his decision

caused any inconvenience. Thus, Huffman knowingly and willfully refused to comply with 

multiple court orders without good cause, all to the detriment of the orderly and efficient 

administration of justice in this litigation. Under these circumstances, no lesser sanctions will 

suffice, and default is the only appropriate sanction under both Rule 16(f)(1) and the inherent 

powers of this Court.

3 See, e.g., PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F. Supp.2d 1287, 

1292 (S.D. Ala. 2010) (“While well-pleaded facts in the complaint are deemed admitted, 

plaintiffs’ allegations relating to the amount of damages are not admitted by virtue of default; 

rather, the court must determine both the amount and character of damages.”) (citation omitted). 

Such a determination of damages may be made without a hearing “when the district court 

already has a wealth of evidence ... such that any additional evidence would be truly 

unnecessary to a fully formed determination of damages.” Id. at 1292 n.9. 

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plaintiffs are ordered, on or before November 12, 2015, to file such affidavits, 

exhibits and other materials, together with a legal memorandum, that they deem

sufficient both to document and to explain the amount and character of the 

damages sought, so as to prevent the requested damages award from being either 

uncertain or speculative. Plaintiffs must serve a complete copy of these filings on 

Huffman at his address of record. Huffman will be allowed until November 25, 

2015 to be heard (solely as to plaintiffs’ damages showing, inasmuch as the 

default precludes him from contesting the merits of the claims against him), after 

which the issue of damages will be taken under submission. Default judgment 

will be entered against Michael Huffman at such time as damages determinations 

have been made on the record thus established.

4. This action remains stayed as to defendant Huffman Construction, Inc., whose 

bankruptcy proceedings are ongoing at this time. Given the withdrawal of 

Huffman Construction’s counsel of record, the burden shifts to plaintiffs’ counsel 

to file a written report on or before the 10th day of each month to apprise the Court 

of the current status of the Huffman Construction bankruptcy proceedings and 

whether the automatic stay remains in effect as to plaintiffs’ claims against that 

entity. Upon the lifting of the automatic stay and any resumption of these 

proceedings against Huffman Construction, that defendant will be required to 

make arrangements to retain new counsel promptly, given the prohibition on 

corporations appearing pro se in federal litigation.4

 4 See, e.g., Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (“The 

rule is well established that a corporation is an artificial entity that ... cannot appear pro se, and 

must be represented by counsel.”); S.E.C. v. Merchant Capital, LLC, 2012 WL 3205543, *1 n.2 

(11th Cir. Sept. 11, 2012) (“It is well established, however, that a business organization cannot 

appear pro se and must be represented by counsel, not merely by a stockholder or officer.”) 

(citation omitted). Simply put, Huffman Construction cannot represent itself, nor can its 

managers, members, officers or employees file papers in this case on behalf of that entity unless 

they are licensed attorneys acting in a representative capacity. For this reason, upon expiration 

of the automatic stay in bankruptcy, Huffman Construction must retain substitute counsel if it 

wishes to be heard or to defend in this action. 

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5. The Clerk of Court is directed to mail a copy of this Order to defendant Michael 

Huffman at his address of record.

DONE and ORDERED this 23rd day of October, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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