United States District Court, D. Nebraska
THE MEHNER FAMILY TRUST, RAYMOND H. MEHNER, MARK A. MEHNER, ANDREA L. MEHNER, ANTHONY Q. MEHNER, and DANIELLE N. MEHNER, Plaintiffs,
U.S. BANK NATIONAL ASSOCIATION, KOZENY & MCCUBBIN, L.C., WELLS FARGO BANK, N.A., and REO ASSET MANAGEMENT COMPANY LLC, Defendants.
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court after the named plaintiffs and
their former attorney Christopher Pfanstiel
(“Pfanstiel”) have failed to pay sanctions
imposed on them for over a year. Now, plaintiffs' current
attorney of record Benjamin E. Maxell (“Maxell”)
has filed a Motion to Withdraw (Filing No. 117), and
plaintiff Mark A. Mehner (“Mehner”) has filed a
pro se Motion for Contempt for Violation of Court Order and
for Show Cause Order (Filing No. 118). For the reasons stated
below, both motions are denied.
August 30, 2017, Order (Filing No. 112), the Court held the
named plaintiffs and Pfanstiel jointly and severally liable
to Kozeny & McCubbin, L.C. (“K&M”) for
sanctions in the amount of $6, 544.50. On October 25, 2018,
K&M filed another Motion for Sanctions (Filing No. 114),
reporting that neither the named plaintiffs nor Pfanstiel
paid the sanctions or explained their failure to pay.
December 11, 2018, Memorandum and Order to Show Cause (Filing
No. 115) (“Order to Show Cause”), the Court
ordered each of the named plaintiffs and Pfanstiel to pay the
$6, 544.50 in sanctions owed to K&M or show cause within
thirty days why the payment has not been made. Maxell then
moved to withdraw.
Maxell's motion first, the Court finds that motion should
be denied. Pursuant to Nebraska General Rule 1.3(f),
“[a]n attorney of record may withdraw upon showing good
cause, but is relieved of duties to the court, the client,
and opposing attorneys only after (1) filing a motion to
withdraw, (2) providing proof of service of the motion on the
client, and (3) obtaining the court's leave to
withdraw.” The decision to allow counsel to withdraw is
left to the Court's discretion. Fleming v.
Harris, 39 F.3d 905, 908 (8th Cir. 1994). Because Maxell
has failed to comply with Rule 1.3(f), his motion is denied.
Mehner moves the Court to find Maxell in contempt for
violating the Order to Show Cause. According to Mehner, Maxell
“fail[ed] to notify all the Mehner Plaintiffs of [the]
most recent Order.” Mehner's motion is without
December 12, 2018, Rachel Tunks (“Tunks”),
Maxell's legal assistant, filed an affidavit (Filing No.
116) declaring that Maxell copied her on an email in which
Maxell provided the named plaintiffs notice of the Order to
Show Cause. Despite this, Mehner states the named plaintiffs
received “[n]o notice, of any kind” and
goes on to recite various correspondence with Maxell, Tunks,
Pfanstiel, and K&M's counsel. The Court finds
Tunks's affidavit credible and Mehner's contention
preposterous. Even if not credible, Mehner has clearly
received some notice, otherwise he could not have made his
latest filing. Accordingly, Mehner's motion for contempt
and request for fines, fees, and costs is
Motion for Contempt against Maxwell appears to be nothing
more than an additional attempt to muddy the waters and
deflect attention from the only issue before the
Court which is whether Mehner, the Mehner Family Trust,
Raymond H. Mehner, Andrea L. Mehner, Anthony Q. Mehner,
Danielle N. Mehner, and Pfanstiel have paid the monetary
sanctions ordered by this Court over a year ago.
motion is completely unresponsive to the Court's Order to
Show Cause. The January 10, 2018, deadline to pay in
full the $6, 544.50 in sanctions owed to K&M or show
cause why the payment has not been made remains in
Benjamin E. Maxell's Motion to Withdraw (Filing No. 117)
A. Mehner's Motion for Contempt for Violation of Court
Order and for Show Cause Order (Filing No. 118) is denied.
Benjamin E. Maxell will serve notice of this Order to each of
the Mehner parties within seven (7) days of this Order at the
addresses provided in Mark A. Mehner's Affidavit ...