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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA


TAMPA DIVISION

In re: MARK A. ADAMS CASE NO.: 8:08-cv-01570-RAL

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APPELLANT'S VERIFIED MOTION TO VACATE ORDER OF NOVEMBEB 14,U)OS


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GRANTING APPELLEE'S MOTION TO SUPPLEMENT THE RECORD ON 'APPEAL

COMES NOW, the Appellant, Mark A. Adams, and files this Verified Motion to Vacate

Order of November 14,2008 Granting Appellee's Motion to Supplement the Record on Appeal

showing:

1. On November 14,2008, the Appellee, Timothy W. Weber, appearing pro se, filed the

Appellees' Motion to Supplement the Record on Appeal and Extend the Time Period for

Filing an Answer Brief to One Week Following the Transmittal of the Complete Record

(Docket # 19) (hereinafter referred to as "Weber's Motion to Supplement the Record") with a

certificate of service falsely claiming to have served a copy to the undersigned via U.S. Mail.

However, the undersigned did not receive a copy of Weber's Motion to Supplement the

Record, and instead, had to incur charges to obtain a copy through PACER.

2. The record shows that no hearing was held on Weber's Motion to Supplement the Record

before it was purportedly granted by entry of an order by the Honorable &chard A. Lazzara

on November 14,2008 (Docket # 20). Although this Court's online docket indicates that the

foregoing order was signed by the Honorable Richard A. Lazzara, the signature is type
written, and the order was not mailed to the undersigned until November 17,2008 or later.

See a copy of the order of November 14,2008 with a copy of the clerk's envelope

transmitting the same with a postal meter stamp dated November 17,2008 attached as

Exhibit A.

3. IJndoubtedly, as attorneys are required to be familiar with and comply with the rules of

procedure and are prohibited from filing baseless or misleadiig documents with the court,

most motions to enlarge time which this Court reviews are likely timely and show good

cause why an enlargement of time should be granted and in instances when the motion is

untimely, also show that the failure to act was the result of excusable neglect.

4. However, the record shows that as usual, Weber filed a baseless and misleading motion

which failed to meet the basic requirements for a motion to enlarge time, perhaps that is why

he failed to serve a copy to me. Specifically, Weber's Motion to Supplement the Record was

untimely, failed to show good cause why an extension of time should be granted, failed to

show that his failure to act in a timely manner was the result of excusable neglect, and was

filed on the Friday just before his answer brief was due.

5. Furthermore, in an obvious effort to mislead this Court, Weber falsely claimed that no party

would be prejudiced by granting Weber's Motion to Supplement the Record. However,

Weber's false claim is absurd as the undersigned filed and served the Appellant's Initial Brief

(Docket # 18) on October 3 1,2008, a fact which Weber failed to mention, and Weber sought

to introduce documents not addressed in the Initial Brief, an action which would obviously

cause prejudice to the undersigned Appellant.

6. In addition, rather than explaining to this Court why his motion was untimely, why his failure

to act timely should be excused, and showing why his motion should be granted, Weber
falsely and misleadingly claimed that Weber's Motion to Supplement the Record should be

granted because the undersigned did not file the "entire record on appeal" claiming that the

record which was filed with this Court violates this Court's order entered on September 9,

2008 (Docket # 8). Once again, Weber either failed to read the governing rule of procedure

in violation of his duty to this Court or he has intentionally misled this Court. The record on

appeal is defined and explained by Federal Rule of Bankruptcy Procedure 8006 which states

in pertinent part, "The record on appeal shall include the items so designated by the

parties, the notice of appeal, the judgment, order, or dccrec appcalcd fiom, and any opinion,

findings of fact, and conclusions of law of the court." (Emphasis added.)

7. In Weber's Motion to Supplement the Record, Weber admitted that he was aware that on

September 22,2008, the undersigned filed a designation of items to be included in the record

and a statement of issues to be presented which were served to Weber via U.S. Mail on

September 20,2008, and that the items designated as the record on appeal were filed with

this Court on September 29,2008.

8. Apparently, Weber failed to notice or chose to ignore the pertinent part of Rule 8006 which

states, "Within 10 days after service of the appellant's statement the appellee may file and

serve on the appellant a designation of additional items to be included in the record on

appeal.. .." Instead, in paragraph 9 of Weber's Motion to Supplement the Record, Weber

falsely stated, "As a result of the confusion and procedural irregularity caused by the pro se

Appellant's actions, Appellees have never becn afforded an opportunity to file a dcsignation

of additional items to be included in the record."

9. Pursuant to Rule 8006 and Rule 9006 governing time, if Weber had wanted to file a timely

designation of additional items to be included in the record, he should have done so by


October 3,2008. Instead, Weber waited until November 14,2008,42 days past the deadline

and two weeks after the Appellant's Initial Briefhad been filed, to seek to tnclude add~ttonal
items in the record by filmy a baseless and misleading motion with thls Court

10. As Wekr's Motion to Supplement the Record was untimely, failed to show good cause why

an extension of time should be granted, filed to show that his failure to act in a timely

manner was the resdt of excusable neglect, was filed an the Friday just before hrs answer

br~efwas due, was also false and misleading, and was not served to the undersigned and as

Weber~sMotion to Supplement the Record was granted without notice and an opportunlty to

be heard being afforded to the undersigned, the order grantlng Weher's Motion to

Supplement the Record entered on November 14,2008 should be vacated.

1I. 'Curthermore, as Weber has engaged in bad faith conduct and as the undersigned has suffered

prejudice as a direct result of such egregious unethical conduct, this Court r;houid strnkc the

supplemental items and Weber's Answer nnef fmm the record and proceed with the

determination of this appeal based on the Appellant's Initial Brief.

WHEREFORE, d ~ Appellant
e respectfully requests that this Court enter an order

vacating the order entered on November 14,2008 whch granted Weber's Motion to Suppiement

the Record, striking the supplementat items and Webr's Answer Brief from the record, and

proceeding wlth the determination of this appeal based on the Appellant's lnltial Rnef

VERIFICATION

I !rider penalties of perjury, I declare that I have mad the foregoing and the facts stated in

it are true.

ark A. Adams Date


CERTIFICATE OF SERVICE

I hereby certify that 1 have served a true and correct copy of this document via U.S. Mail

to Donald R. Kirk, Esquire, of Fowler White B o g g Banker, P.A., counsel for Timothy W

Weber, at P.O. Box 1438; Tampa, FL 33601; and to Timothy W. Weber, Esyuirc, pro se of

Ratkglia, Ross, Dicw & Wein, P.A., at P. 0.Box 41 100; St Petersburg, FL 33743 on rhix
., , . .
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--- day of December, 2008.

-- ---
Mark A. Adams JIIIMBA
4129 Balington Dr.
Valrico, FL. 33596
Telephone: 81 3-643-4412
Exhibit A
Case 8:08-cv-01570-RAL Document 20 Filed 1111412008 Page 1 of 2

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MARK A. ADAMS.

Appellant,

CASE NO: 8:08-CV-1570-T-26

CORPOIU7'1<SPORTS MARKI:,'I'ING
GROIJP, INC., el al.,

ORDER

UPON DUE CONSIDERATION, it is ORDERED AND ADJUDGED as

follows:

1) Appellee's Motion to Supplement the Record on Appeal and 1:xtend the

Time Period for Filing an Answer Brief (Dkt. 19) is granted.

2) l'hc Clerk of the Bankruptcy Court is directed to supplement the record on

appeal in this casc wilh the docuinents specified on pages 5 and 6 of the motion.

3) Appellees shall tile their answer brief within one week of the

supplementation of the record as directed in paragraph two.

4) The Clerk of this Court is directed to forward a copy of Appellee's motion

and this order to the Clerk of the Bankruptcy Court.


Case 8:OR-cv-01570-RAL Document 20 Filed 11/14/2008 Page 2 of 2

DONE AND ORDERED at 'Tampa, Florida, on November 14,2008

siRichard A. Lazzu~.a
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:


Counscl ol'liccord
Clcrk, Bankruptcy Court
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
pFFIC?SOF THE C L E R K
UNITED STATES C O U R T H O U S E
'KAMFA, F~ORIDA33602
OFFICIALBUSINESS