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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NETSPHERE, INC., §
MANILA INDUSTRIES, INC., and §
MUNISH KRISHAN, §
Plaintiffs. §
§ Civil Action No. 3-09CV0988-F
v. §
§
JEFFREY BARON, and §
ONDOVA LIMITED COMPANY, §
Defendants. §
RESPONSE TO CARRINGTON COLEMAN MOTION TO BE GIVEN
JEFF BARONS MONEY WITHOUT TRIAL [DOC 613]
Appellant, Jeffrey Baron makes this response to Carrington Colemans motion
filed as Doc 613, seeking to be given Jeff Barons money by this Court.
1. As a preliminary matter, objection is raised to Carrington Colemans
(hereinafter CCOLE) lack of standing. CCOLE is neither a party to this lawsuit
nor has made any prior motion for relief. Further, the Court has made no finding
or adjudication as to CCOLE. Since no right of CCOLE was adjudicated and no
motion was made by any party to adjudicate any right of CCOLE, CCOLE has no
standing to seek reconsideration of the Courts order.
2. CCOLE is not a party and their motion does not fall within the scope of
4(a)(1) which is expressly limited in application to motions filed by a party.
Accordingly, the trial court was divested of jurisdiction over the appealed from
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order when it was appealed. CCOLEs argument that their rights should have been
adjudicated by the Court when no pleading or motion seeking the adjudication of
their rights was before the court, borders on the frivolous.
3. Objection is further raised that CCOLE failed to comply with the local
rules of procedure in failing to confer with the undersigned prior to filing of their
motion.
4. The entire basis of CCOLEs motion is that the district court has created
a back door to do away with Americans Constitutional right to Jury trials to
adjudicate legal claims against them. Instead of CCOLE being required to file a
lawsuit and prove a claim in a lawsuit against Mr. Baron, CCOLE would like the
Court to bypass the US Constitution and simply give them some of Mr. Barons
money. However, that is not the law. Mr. Barons assets are in the possession of
the receiver. Mr. Barons alleged debts are not. CCOLE has no claim to the assets
held by the receiver. CCOLE has at best a claim at law against Mr. Baron, most of
which is barred by the statute of limitations and all of which is outside of the
subject matter jurisdiction of a US District court since Mr. Baron and CCOLE are
non-diverse.
5. Again, the claim asserted by CCOLE is not a claim against any asset of
the receivership, but against Mr. Baron personally. The legally fallacious grounds
asserted are that because a claim is alleged against an individual, that claim can be
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directly paidwithout trial from assets held in receivership because those assets
were seized from that person. Ordering that a persons assets be placed into a
receivership does not abrogate that persons Constitutional right to trial by
jury for all legal claims asserted against that person.
6. No prior motion seeking to pay CCOLE money has been filed, and
therefore there has been no opportunity to object to their claim. Most of the
claim is barred by the statute of limitations. Moreover, while it was initially
raised in preliminary negotiations between Mr. Baron, Ondova, and CCOLE that
Mr. Baron would be a formal party to the engagement agreement, in the final
agreement Ondova was the primary beneficiary of CCOLEs services and became
the exclusive party responsible for the payment of any fees incurred. CCOLE was
clearly on notice and acted in conformity with their being on notice that Ondova
was the sole obligee. Moreover, Ondova obligated itself not to seek resolution of
any dispute over the fees in court without first seeking resolution in arbitration.
7. For further cause, if same is necessary: Mr. Baron has appealed the order
appointing the receiver [Doc #136] and NovoPoint, LLC and Quantec, LLC
(SouthPacs LLC companies) have appealed from the order including the
SouthPac LLC companies into the receivership [Doc #227].
8. Accordingly, pending appeal the district court is without jurisdiction to
dispose of any of the assets which were seized by the receiver. See e.g., Taylor v.
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Sterrett, 640 F.2d 663, 668 (5th Cir. 1981) ([T]he District Court was divested of
jurisdiction only as to matters relating to the April 27 and May 12 orders and
subsequent orders and, for that reason, fees cannot be recovered for work relating
to these orders).
9. Mr. Baron would like to respond and object further, but requires access
to his money in order to retain counsel expert in objecting to improper fee claims,
and an expert to offer an opinion as to the unreasonableness of the fees claimed.
Mr. Baron objects to the Courts denial of his access to his own money for these
purposes, and moves to be allowed to have access to such funds and a reasonable
opportunity to further object to the motions and provide further evidence in
response to the motion. Objection is also made to the denial of Mr. Barons rights
to conduct discovery, and demand is made for a jury trial on the claims asserted by
CCOLE in their motion.
Respectfully submitted,
/s/ Gary N. Schepps
Gary N. Schepps
State Bar No. 00791608
Drawer 670804
Dallas, Texas 75367
(214) 210-5940
(214) 347-4031 Facsimile
COUNSEL FOR JEFFREY BARON
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CERTIFICATE OF SERVICE
This is to certify that this was served on all parties who receive notification
through the Courts electronic filing system.
/s/ Gary N. Schepps
Gary N. Schepps
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