United States District Court, E.D. Wisconsin
ORDER CONSTRUING RESPONSE TO ORDER TO SHOW CAUSE AS
MOTION TO WITHDRAW (DKT. NO. 57), GRANTING MOTION TO WITHDRAW
(DKT. NO. 57), GRANTING PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT AS TO OFFICE OF LAWYER REGULATION AND LEONARD J.
KUTCHERA (DKT. NO. 45) AND DENYING PLAINTIFF'S MOTION FOR
DEFAULT JUDGMENT AS TO GUTHRIE & FREY WATER CONDITIONING,
LLC (DKT. NO. 45)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
19, 2018, counsel for defendant Larissa Ocheretner filed a
document titled “Stipulation and Consent for Withdrawal
of Attorney.” Dkt. No. 25. The motion bore the caption
and case number of a Chapter 7 bankruptcy proceeding; the
body of the motion indicated that the defendant stipulated to
the withdrawal. Id. Because it wasn't clear
whether the defendant had agreed to counsel's withdrawal
in this district court case, Judge Duffin denied the motion
without prejudice. Dkt. No. 26. He explained that if the
defendant wished to move forward without counsel in
this case, she could refile the motion with the
appropriate caption. Id. at 2. The defendant did not
file a second motion to withdraw prior to the February 20,
2019 scheduling conference, and the attorney who had filed
the July 2018 stipulation of withdrawal did not appear at the
conference. Dkt. No. 49.
court issued an order, requiring that attorney to show cause
why the court should not require him to appear in person and
explain why he had not withdrawn from representing the
defendant in the district court case. Dkt. No. 48. On March
19, 2019, the court received counsel's response to the
order to show cause. Dkt. No. 57. He explained that in July
2018, he had begun a new job with the State Public Defender;
at that time, he'd represented defendant Ocheretner both
in an adversary proceeding in bankruptcy court and in this
case. Id. at 1. He indicated that after he accepted
the job with the public defender, he'd contacted
defendant Ocheretner and told her she'd need to find a
new lawyer in both cases. Id. Counsel had the
defendant execute the stipulation for the bankruptcy
proceeding; he says he assumed he'd also drafted a
stipulation for this case, but that he accidentally filed the
bankruptcy stipulation in this case. Id. He says
that he had multiple conversations with the defendant-in
person and on the phone-in which he told her that she needed
to find a new lawyer both in the bankruptcy proceeding and in
this case. Id. In fact, he made referrals to the
defendant for lawyers in both cases. Id. at 1-2.
After counsel learned about the order to show cause, he
contacted defendant Ocheretner, who indicated that she had
talked with the lawyers counsel had identified for her, but
that she had not retained them. Id. at 2. Counsel
concluded by providing the court with defendant
Ocheretner's current contact information. Id.
court accepts counsel's explanation, concludes that he
has discharged the order to show cause, construes his
response as a motion to withdraw, and will grant that motion.
That means that until some other lawyer files a notice of
appearance on behalf of defendant Ocheretner, she is
representing herself. While the court understands that
defendant Ocheretner may not have legal training or
understand the legal process, she is nonetheless responsible
for appearing at court hearings and following the court's
rules and the federal rules.
the plaintiff has filed a motion for default judgment as to
the Office of Lawyer Regulation, Leonard Kutchera and Guthrie
& Frey Water Conditioning, LLC, asking the court to issue
an order finding that none of these defendants have any
rights, claims or interest in “the real property
subject of the United States' amended complaint in the
above-captioned litigation or the proceeds from any sale of
the real property.” Dkt. No. 45. The Office of Lawyer
Regulation executed a waiver of service on May 7, 2018. Dkt.
No. 12. The plaintiff filed a return of service indicating
that on June 14, 2018, a process server left the summons and
complaint with office manager Jean Klemmons of Guthrie &
Frey. Dkt. No. 20. Finally, the plaintiff filed a return of
service indicating that the process server served defendant
Kutchera personally on July 3, 2018. Dkt. No. 21. To date,
none of the defendants have responded to the complaint, and
none have asserted any right or interest in the properties
listed in the complaint. The clerk of court entered default
against the Officer of Lawyer Regulation on June 27, 2018,
against Guthrie & Frey on August 1, 2018 and against
Kutchera on August 10, 2018.
court will grant the plaintiff's motion for default
judgment as to defendants OLR and Kutchera. But the court
cannot determine whether the plaintiff properly served
defendant Guthrie & Frey. The Wisconsin Department of
Financial Institutions' web site indicates that the
registered agent for Guthrie & Frey is Robert K. Frey,
1125 Richards Road in Hartland, Wisconsin.
https://www.wdfi.org. Guthrie & Frey's web site says
that “Rob Frey” and his wife Susan Frey run the
company. https://www.guthriefreywater.com. The court has no
way of knowing whether service on office manager Jean
Klemmons constitutes service on “an officer, a managing
or general agent, or any other agent authorized by
appointment or by law to receive service of process, ”
as required by Fed.R.Civ.P. 4(h)(1)(B).
court FINDS that Attorney Kyle Jesinski has
discharged the court's order to show cause.
court CONSTRUES Attorney Jesinski's
response to the order to show cause as a motion to withdraw
from representing defendant Ocheretner. Dkt.
The court GRANTS Attorney Jesinki's
motion to withdraw from representation of defendant
Ocheretner. Dkt. No. 57.
court ORDERS the clerk's office to
remove Attorney Jesinski as counsel of record for defendant
Ocheretner, and to add the contact information for Ocheretner
to the docket as provided on page 2 of Attorney
Jesinski's response to the order to show cause.
GRANTS the plaintiffs motion for default
judgment as to the Office of Lawyer Regulation and Leonard J.
Kutchera. Dkt. No. 45. The court ORDERS that
defendants Office of Lawyer Regulation and Leonard Kutchera
have no rights, claims, or interests in the real properties
identified in the original and the amended complaints,
specifically 10919 N. Hedgewood Lane, Mequon, Wisconsin, and
4275 W. Cherrywood Lane, Brown Deer, Wisconsin, or the
proceeds from any sale of those properties.
court DENIES WITHOUT PREJUDICE the
plaintiffs motion for default judgment as to defendant
Guthrie & Frey.