duane morris affidavits in support of response (ecf#246)

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA FT. LAUDERDALE DIVISION

www.flsb.uscourts.gov

In re: Case No.: 14-32819-JKO (Jointly Administered) US CAPITAL/FASHION MALL, LLC, et al., Chapter 7

Debtors. _______________________________________/

NOTICE OF FILING AFFIDAVITS IN SUPPORT OF DUANE MORRIS’S RESPONSE TO

ORDER DIRECTING DUANE MORRIS TO SUBMIT PAPERS

DUANE MORRIS LLP, by and through undersigned counsel and in support of Duane

Morris’s Response to Order Directing Duane Morris to Submit Papers [ECF #246], files the

following Affidavits:

1. Second Affidavit of Kevin E. Vance, attached hereto as Exhibit A;

2. Second Affidavit of Rebecca L. Guillou, attached hereto as Exhibit B; and

3. Affidavit of Connie Graver, attached hereto as Exhibit C.

Dated: February 13, 2015.

Case 14-32819-JKO Doc 247 Filed 02/13/15 of 37

Case No.: 14-32819-JKO

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Respectfully submitted,

We hereby certify that we are admitted to the Bar of the United States District Court for the Southern District of Florida and are in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A).

STEARNS WEAVER MILLER WEISSLER

ALHADEFF & SITTERSON, P.A. Counsel for Duane Morris, LLP Museum Tower, Suite 2200 150 West Flagler Street Miami, Florida 33130 Telephone: (305) 789-3200 Facsimile: (305) 789-3395 By: /s/ Drew M. Dillworth DREW M. DILLWORTH Florida Bar No. 167835 [email protected] DAVID C. POLLACK Florida Bar No. 362972 [email protected]

CERTIFICATE OF SERVICE

I CERTIFY that on February 13, 2015, I electronically filed the foregoing document with

the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served

this day by transmission of Notices of Electronic Filing generated by CM/ECF to those parties

registered to receive electronic notices of filing in this case, as indicated on the attached Service

List.

By: /s/ Drew M. Dillworth DREW M. DILLWORTH



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SERVICE LIST

Electronic Mail Notice List

The following is the list of parties who are currently on the list to receive email notice/service for this case, and should have been served by Notice of Electronic Filing generated by the Court’s CM/ECF system:

Joaquin J Alemany [email protected] [email protected]

Valerie Barton Barnhart [email protected] [email protected] [email protected]

Becket and Lee LLP [email protected]

Richard E Berman [email protected] [email protected]

Timothy R Bow [email protected] [email protected] [email protected] [email protected] [email protected]

Daniel DeSouza [email protected]

Drew M Dillworth [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]



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Jeffrey R Eisensmith [email protected]

Michael J Friedman [email protected]

John C Hanson [email protected]

Jason Z. Jones [email protected]

Mark A Levy [email protected] [email protected] [email protected]

Nicole L Levy [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Charles H Lichtman [email protected] [email protected] [email protected]

Brett D Lieberman [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]



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Jerry M Markowitz

[email protected] [email protected] [email protected] [email protected] [email protected]

Thomas M. Messana [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Glenn D Moses [email protected] [email protected] [email protected] [email protected]

Office of the US Trustee [email protected]

Chad S Paiva [email protected] [email protected]

Alan J. Perlman [email protected] [email protected]

Grace E. Robson [email protected] [email protected] [email protected] [email protected]



#4039477 v1

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Michael E Rothenberg [email protected] [email protected]

Michael L Schuster [email protected] [email protected] [email protected] [email protected]

Steven J. Solomon [email protected] [email protected] [email protected] [email protected]

Kevin E. Vance [email protected] [email protected] [email protected]

Kenneth A Welt [email protected] [email protected] [email protected] [email protected]


EXHIBIT A


COMPOSITE EXHIBIT 1


EXHIBIT B


SECOND AFFIDAVIT OF REBECCA L. GUILLOU

Rebecca L. Guillou, being duly sworn, deposes and says:

1. I am a paralegal in the trial department in the Miami office of Duane Monis LLP.

I make this affìdavit on personal knowledge. If called as a witness I would competently testify to

the facts set forth herein.

2. In my first aff,rdavit f,rled January 22,2015 IDE 192-51,I stated:

I did not use E-orders to upload any stipulation or proposed agreed orderdirectly to the Judge. I filed everything with Pacer, and all counsel ofrecord were served by email via ECF.

3. That assertion was true to the best of my knowledge, information, and belief when

I signed my affidavit on January 20, 2015. I had no reason to doubt the accuracy of my

statement until the moment during the January 27 hearing when the Judge read, from an E-

Orders Transaction Repoft, that the Amended Agreed Order on Ganglu's motion for relief from

the automatic stay had been uploaded to E-orders at 14:56:40 on November 3,2014. Even then,

I did not believe that I was the person who had uploaded the Amended Agreed Order.

4. I have been a litigation paralegal since 1994. I have extensive experience

electronically filing documents in the United States District Courl for the Southern District of

Florida and in Florida state courts.

5. On Thursday, October 30, 2014, Dawn Perez, another litigation paralegal in

Duane Morris's Miami offrce, told me that she would be out the next day (Halloween) to spend

time with her daughter, and would also be out the following Monday and Tuesday, November 3

and 4. As is our practice when one of us plans to be absent from the office, Ms. Perez and I

discussed which of her matters I might have to cover for her. She mentioned (among other

cases) Mapuche and its related bankruptcy cases, and she said if there were filings, I could log on

t


to the bankruptcy court's CM/ECF system via PACER, but that the log-on system and password

were different than the District Court's. She gave me Kevin Vance's log-in credentials.

6. On Monday, November 3, 2014, Ms. Rodriguez-Taseff asked me to file the

Stipulation on Motion for Relief from the Automatic Stay and its Exhibit A, an Agreed Order.

Using Mr. Vance's password and for the first time in my career, I accessed the Bankruptcy

Court's CM/ECF system. It looked somewhat different than the District Court's system, as Ms.

Perez had told me it would. I was confident that my years of experience on the District Coutl's

CM/ECF site would enable me to figure out how to f,rle the documents. I had some issues

navigating around the system, but when I signed off, I was equally conf,rdent that I had

successfully accomplished what Ms. Rodriguez-Taseff had asked me to do - file the Stipulation

and the Agreed Order.

7. A little while later, the Trustee's counsel communicated some changes to the

Agreed Order, and the lawyers agreed to the form of an Amended Agreed Order. In an email at

2:41 PM onNovember 3, 2014, the Trustee's counsel asked me to file it, and by reply email at

2:49 PM,I wrote, "l will file the Amended Agreed Order, shoftly." A copy of the email thread

that contains those two emails is Exhibit I to this affidavit.

8. In my first affidavit, I reported (at paragraph 2)that onNovember 3, I had filed

the Stipulation, on the Bankruptcy Court's CM/ECF system twice -- first without the Agreed

Order and then with the Agreed Order. I further reported (at paragraph 4) that later that same

afternoon, I filed a Certificate of Service with the Stipulation, the original Agreed Order, and the

Amended Agreed Order. I did not notify Mr. Vance that I was going to use his filing credentials

to file the Stipulation, the Agreed Order, or the Amended Agreed Order, and I did not advise

him, after the fact, that I had done so. I realize that I should have advised him of the filing before

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I made it. In the future, before I make any electronic filing, I will obtain specific permission to

make the filing from the individual whose credentials I have been authorized to use.

9. When I signed my first Affidavit, I did not remember that between filing the

Stipulation and Agreed Order IDE 38, 38-1] and later filing the Certificate of Service IDE 39], I

had accessed the CM/ECF system in order to file the Amended Agreed Order. My first affidavit

did not mention that filing because I simply did not recall it.

10. My belief that all the documents I filed on the CM/ECF system on November 3

were filed in the electronic docket and emailed to all counsel by the system is reflected in how I

reported my time for that day:

111312014: numerous revisions to stipulation on motion for relief from teh

[sic] automatic stay; draft and finalize agreed order; draft and finalizeamended agreed order; file ønd serve all pleudings; draft and finalizecertificate of service;

(Emphasis added). My November 3 time entry, taken from a Duane Morris print-out (with one

phrase, unrelated to filing, redacted) is Exhibit 2 to this affidavit.

11. On January 28,2015, the day after the hearing, Michael Silverman, Duane

Moris's General Counsel, asked me to attend a meeting in one of the conference rooms in

Duane Morris's Miami office to try to figure out how someone had uploaded the Amended

Agreed Order to E-orders the aftemoon of November 3. David Pollack and Connie Graver were

also at the meeting. Mr. Silverman showed me reports that Duane Morris's I.S. department had

run that showed that I was the only person to access the Amended Agreed Order on the firm's

document management system on November 3 and also the only person to have connected to the

Bankruptcy Court's CM/ECF system that day. That is when I realized that I must have uploaded

the Amended Agreed Order, even though I did not then, and still do not now, remember doing

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SO


12. Mr. Silverman asked me to show him, Mr. Pollack, and Ms. Graver how to use

the Bankruptcy Courl's CM/ECF system to file a document. Ms. Graver, who Mr. Silverman

told me is an expert on that system, had connected to it on the Fitm's computer system and

displayed the main page on a large screen in the conference room. Ms. Graver asked me to show

her how I filed the Stipulation. I had difficulty maneuvering through the screens and menu

choices, most of which did not look familiar to me. 'With her help, I was able to get to the

correct screen. Once there I knew, from my experience e-filing in District Cout1, how to attach a

PDF of the document and file it.

13. Ms. Graver then asked me to show her how I filed the Amended Agreed Order. I

told her I did not remember. She then asked me try to figure it out. I found a menu option called

"Order Upload" and clicked on it. With Ms. Graver's help I was able to click through to the end

of the process, that is, to the screen that would permit me to file an order.

14. The task I was assigned November 3 was to file the stipulation and the agreed

order, and later the amended agreed order. No one told me to send the original or amended order

to the judge for signature without copying the lawyers on the service list or to upload the

Amended Agreed Order to E-orders, and I did not intend to do so. Every document I file on the

District Couft's CM/ECF system is served on all counsel on the service list. I had no reason to

believe that was not also the case on the Bankruptcy Coutl's system. In District Court, when an

order is submitted to the court for signature, it is emailed to the Judge's chambers in Word

format and copied to all counsel. I had no idea that in the Bankruptcy Court, such an order is

uploaded, in PDF format, to the CM/ECF system, which does not send email notice to all

counsel.

15. I now understand that I did not use the Bankruptcy Couft's system correctly. It

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was a mistake. I did not intend to do anything other than follow my instructions to file the

stipulation, agreed order, and amended agreed otder, and until my meeting with Mr. Silverman

on January 28, I believed I had accomplished that and only that. Because of my unfortunate

filing experience on this Court's CN,I/ECF system, I wanted to leam how to use the system

properly. I took and completed the online training on February l0 and received my certihcate of

completion on February 1 1. It is attached as Exhibit 3.

16. Mr. Silverman has instructed that until further notice, any bankruptcy filings for

personnel in our Miami office are to be handled by an experienced bankruptcy paralegal in our

Boca Raton or Philadelphia office.

tTêùt ro -(''.

STATE OF FLORIDA

COUNTY OF MIAMI-DADE

The foregoing instrumentby Rebecca L. Guillou who is

Commission Number and Expiration

Rebecca L. Guillou

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{þþ';ø¿aÍYof Jamy, 2015,

to me C_____J produced

N blic, State of Florida

Name Notary Public

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DAWT¡ PEREZPr¡bllc1{olary Strte of Florida

My Comm. Etpirss 2015sap 20,Commlsslon # EE r00603

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#4033235 v3


EXHIBIT 1


Guillou, Rebecca L

Êrom:

ient:To:Cc:

Subject:

Guillou, Rebecca L

Monday. November 03,2014 2:49 PM

'Moses, Glenn'; Schuster, Michael

Rodriguez-Tasefl, Lida; Day, Allison

RE: Agreed Order on Motion for Relief from Autotnatic Stay.DOCX

Hello. Thank you for clarifying. I will file the Amended AgroecJ Order, shortly

From : Moses, G len n Ima ilto : gmose$lÒoib-law.com ISent: Monday, November 03, 2014 2:41 PM

Tor Guillou, Rebecca L; Schuster, MichaelCcr Rodrlguez-Taseff, Lida; Day, AllisonSubjech RE: Agreed Order on Motion for Relief from Automatfc Stay,DOCX

Hi Rebecca: The cases are being administratively consolidated, so tllere will be jLrst one caption (orrce the consolidation

order is entered), lfurther revisecl ihe proposed order (attachecJ)to refle ct that the stay rclief nìotion w¿s filed in just

Mapuche), but w¡ll technically apply to all 3 debtors (r,'rlrich yciu worrld prol:aLlly v'ranI anyway).

I would f ile, however, the amended exhibit in the case ¡t was initially file d in.

(Sorry for any confusion)

-rom: Guillou, Rebecca L [mailto:[email protected]]Jent: Monday, November 03/ 2014 2:16 PM

To: Moses, Glenn; Schuster, MichaelCc: Rodriguez-Taseff, Lida; Day, AllisonSutrject: RE: Agreed Order on Motion for Relief from Automatic Stay.DOCX

Prior to rny filingthe ABreed Order, can you please clarify a fcw things for tne, fh¡s tnorn¡ng we were told by M¡chael

to use the Mapuche case caption for rhe AgreerJ Order (Case No.: 14-32827) is this no lorrger correct? Anr lto file the

amendeclexhibit A in both the US Capital Fashion Mall, LLC case (14-32819)and also in the Mapuche case?

F ro m : M o s e s, G le n n I rn a ilt o : g nLo-s-qs @g jÞ-laW*Co-m ]Sent: Monday, November 03, 2014 2:02 PM

To: Guillou, Rebecca L; Schuster, MichaelCc: Rodriguez-Taseff, Lida; Day, AllisonSubject: RE: Agreed Order on Motion for Relief from Automatic Stay.DOCX

Plc'ase see the revisecl proposetl orcler in redline and clean. Please subnrit the clean version as the amended exhibít A to

the stip, Ihanks.

From: Guillou, Rebecca L Imaílto:RLGuillou@duanemorris,com]Sent: Monday, November 03t 20L4 12:47 PM

To: Schuster, Michael; Moses, GlennCc: Rodriguez-Taseff, LídaSubjech Agreed Order on Motion for Relíef from Automatic Stay.DOCX

iúichael,


lreceivedyourvoicemail,PleaseseeattachedtheAgreedOrderinWord. lhavealreadyuploadedtheAgreedOrder,with Pacer, so we will need to submit a revised Agreed Order.

Rcbccca GulllouParalegal

Duane Morris l.LP200 South tsiscayne Boulevard, Suitâ3400tvlíami. FL 33131-23'18

P: +1 305 960 2327F: +1 305 397 1872

i::.)r lIiJ,$ irìii.¡ìììiìli{)il ,jL{jl.¡ì [)(:¡trì(i lri(i:fi$. l)h)¿ì!,¡;j vlsii htlp://Www.DUanglú,SÍþ-SSn

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2


EXHIBIT 2


r1./3/2O1.4 4536 REBECCA L. GUILLOU 1,O2O.OO NUMEROUS REVISIONS TO STIPULATION ON MOTION FOR

RELIEF FROM TEH AUTOMATIC STAY; DRAFT AND

FINALIZE AGREED ORDER; DRAFT AND FINALIZE

AMENDED AGREED ORDER; FILE AND SERVE ALL

PLEADINGS; DRAFT AND FINALIZE CERTIFICATE OF SERVICE;

REDACTED

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EXHIBIT 3


CMIE,CF Online Trainincerffies thut

Rebecca GuxüXæu

h as s ucces sfully completed

CMECF for Attorneys

und is hereby awarded this

C ertiftc ut e of C o mp letío n

CMECF T,*;*,^aTuo, 02nu2015Date


EXHIBIT C


AFFIDAVIT OF CONNIE GRAVER

Connie Graver, being duly sworn, deposes and says:

1. I am a senior paralegal in the Bankruptcy Department at the law firm of Stearns

Weaver Miller Weissler Alhadeff & Sitterson, P.A. I make this affidavit on personal knowledge.

If called as a witness, I would competently testify to the facts set forth herein.

2. I have completed training for the Court’s Case Management/Electronic Case Files

System (“ECF”). I also was a participant in the Court’s pilot program for agent filings. I have

routinely filed documents electronically through ECF since the Court first implemented ECF in

2005. I am fully familiar with and knowledgeable about the electronic filing of documents and

submission of orders in this Court, as well as in other bankruptcy courts and district courts.

3. On January 28, 2015, David Pollack, a litigation partner at my firm, asked me to

attend a meeting at Duane Morris LLP later that day to assist in the investigation of certain of its

electronic filings and representations made about them in Duane Morris’s Response to this

Court’s Order to Show Cause [ECF #107]. Before the meeting, I reviewed the filings at issue

and noted the following errors:

The Stipulation for Relief From the Automatic Stay was filed twice, once as a separate document without an attachment [ECF #38], and then again with the attachment, a proposed Agreed Order [ECF #38-1]. The Court prefers that exhibits be filed with the main document unless they are voluminous. The Stipulation should have been filed one time, with the exhibit attached.

A Certificate of Service [ECF #39] was filed with the Stipulation, the proposed Agreed Order, and proposed Amended Agreed Order. Pursuant to Local Rule 9004-1(D), “documents filed with the court shall not have as an attachment any document already filed in the case or proceeding.”

I also noted that the proposed Amended Agreed Order, which was not served by ECF when it

was uploaded, was subsequently served by ECF when attached to the Certificate of Service [DE

39].


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4. At the beginning of the meeting on January 28, I met with Michael Silverman of

Duane Morris and David Pollack. I explained to them the process for electronic filings in this

Court, including the filing of a stipulation and the uploading of an order. I also demonstrated

how to query the status of an uploaded order.

5. Mr. Silverman then asked Rebecca Guillou, a paralegal at Duane Morris, to join

us. Ms. Guillou told us that the documents she filed in this case on November 3, 2014 were the

first documents she had ever electronically filed in bankruptcy court. She also told us that

because she had previously filed documents electronically in district court, she thought she could

“maneuver” her way through this Court’s ECF system.

6. As the meeting continued, I discovered that Ms. Guillou had limited knowledge of

bankruptcy, did not understand how to correctly file through ECF in this Court, and did not

understand language commonly used in bankruptcy filings in this Court. For example, Ms.

Guillou did not know the meaning of an “E-Order.” When I explained that an E-Order is an

order uploaded in ECF that goes only to the judge for signing, she said that in her experience,

such orders are submitted to the judge via email, not filed on the ECF system. She added that

she believed that anything she did on an ECF system would be disseminated to all counsel of

record electronically.

7. In my experience, uncontested orders are submitted to different courts in different

ways. For example, in this Court a party uploads a non-competing proposed order via ECF

under an event called “Order Upload.” In the District Court for the Southern District of Florida,

a party submits proposed orders to the judge by e-mail. For all divisions of the Bankruptcy

Court for the Middle District of Florida (except for Judge Funk in Jacksonville), a party submits

a proposed order via a link (https://pacer.flmb.uscourtslgov/orders/login.asp). For Judge Funk, a


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party submits an Order though ECF under an event entitled “Proposed Order – Judge Funk

Only.”

8. At Mr. Silverman’s request, I conducted a mock electronic filing with Ms.

Guillou to try to determine how she filed the Stipulation and submitted the Amended Order. I

accessed this Court’s ECF system on the computer in the conference room and displayed its

main page, pictured below, on a large screen that had been set up in the conference room.

I asked Ms. Guillou how she had filed documents electronically in Bankruptcy Court. She told

me that the main page screen did not look familiar and she did not remember what she did on the

site to file the documents. I suggested that she click on “Bankruptcy” in the blue banner at the

top of the screen. She did so, and the following screen, called Bankruptcy Events, opened.


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9. I asked Ms. Guillou how she had filed the Stipulation. She said she might have

clicked on “Other.” She proceeded to click “Other” and saw no “Stipulation” option on the

drop-down menu. She returned to the “Bankruptcy Events” screen and clicked on

“Motions/Applications.” Its drop-down menu had a “Stipulation” option, which she clicked.

She knew how to attach her pdf document and to complete the filing (although we did not file

anything during the exercise).

10. I then asked Ms. Guillou to show me how she had submitted the Amended

Agreed Order. She told me she did not remember. I asked her to try to figure it out. She said

she might pick “Order Upload” on the Bankruptcy Events menu, and asked whether that is an E-

Order. I said yes, and she clicked on it, opening the “Order Upload for Bankruptcy” screen

pictured below.


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Ms. Guillou chose “Upload Single” and clicked on it, which opened the “Single Order Upload”

screen pictured below.

Ms. Guillou said she did not know what to do next. I prompted her to type in the case number in

the case number box. She did so, and got the “Single Order Upload” screen, with the full case

number, pictured below.


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Ms. Guillou said that the screen looked unfamiliar. I prompted her to type “38” as the related

document number; ECF # 38 is the Stipulation. Ms. Guillou typed in 38, and the drop-down

menu pictured below appeared.

11. Ms. Guillou told me that the screen looked a little familiar, but that she did not

understand the choices and did not know which one she chose. She guessed wrong, and then

asked me to tell her. I told her she had selected the “Order on Pleadings (No Hearing Required)”

option. It did not refresh her recollection. I then asked whether she had received a confirmation

from ECF after she uploaded the order. She said she had gotten an email but had not saved or

printed it because she thought it was the typical notification that the Order, like the Stipulation,

had been sent electronically to all parties.

12. Next I asked Ms. Guillou whether she could do an Order Query. She said she did

not know how, so I showed her. First, I opened the “Reports” screen pictured below.


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Then I clicked on the “Order Query” option, which opened the screen, pictured below, that

shows the status of orders that had been uploaded.

In particular, I pointed out the order next to the number 38 in the Related Doc # column. Ms

Guillou said it was now obvious to her that she had uploaded the Amended Agreed Order. She

also said that she did not realize it, intended to file it in the case docket like she had filed the

original Agreed Order, and believed she had done so.


13. Ms. Guillou was gracious and cooperative throughout our discussion and filing

exercise, seemed to want to help answer the questions surrounding the uploading of the

Amended Agreed Order, and appeared sincerely apologetic about the error she made.

Connie Graver

STATE OF FLORIDA) ss:

couNTY oF MIAMI-DADE )

BEFORE ME personally appeared Connie Graver, who is p-e.{qqgally*kqqy-ry !q e or

who produced

acknowledged

her knowledge

(Seal) &Notary Public, State Florida

as identification and attests that the foregoing instrument was

bædayofFebruary,2015andistrueandcorrecttothebestofand belief. Affrant took an oath.

l[av¿. êta ¿l- I"Å.û'"ut J"lPrinted Name of Notary Public

8

. MARIE GRACE MASVIDAL

,,ii'åiåliiTi,;,'Jffi li:îå11uommission # EE 124gg4


duane morris affidavits in support of response (ecf#246)

Documents

dillworth case

dillworth drew

jko doc

dillworth florida bar

attached service list

papers duane morris

notice of electronic

s drew