Industrial Maritime v. Luxor California Exp ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-20632
Summary Calendar
_____________________
INDUSTRIAL MARITIME CARRIERS
(BAHAMAS) INCORPORATED,
Plaintiff-Appellee,
versus
LUXOR CALIFORNIA EXPORTS CORPORATION,
Defendant-Appellant.
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
(H-95-CV-5025)
_______________________________________________________
February 11, 1998
Before REAVLEY, KING and DAVIS, Circuit Judges.
PER CURIAM:*
This is an appeal from a denial of a motion for continuance.
International Maritime Carriers, Inc. (IMC) sued Luxor California
Exports Corp. (Luxor) to recover damages in relation to a
shipping contract. IMC filed its complaint on October 26, 1995,
and Luxor answered on November 30, 1995. On February 24, 1997,
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
after discovery and an unsuccessful attempt at mediation, the
district court set trial for June 24, 1997.
On April 15, 1997, Luxor’s attorney filed a motion to
withdraw as attorney of record, in part due to nonpayment of
fees. On April 24, the district court granted the motion and
gave Luxor thirty days to locate substitute counsel. On May 29,
Luxor filed a letter with the court requesting a thirty day
extension. On June 2, the court entered an order granting Luxor
until June 12 to obtain a new lawyer. The order indicates that
Luxor was notified, although Luxor claims it was not. Luxor
subsequently sent the court two more letters requesting a
continuance.
On June 23, the day before trial, Luxor faxed a letter to
the court requesting an extension to obtain counsel. The court
denied the request, and on June 24, a trial was held without the
participation of Luxor and final judgment was rendered against
Luxor.
Discussion
We review a district court’s denial of a motion for
continuance under an abuse of discretion standard, understanding
that the trial court’s “judgment range is exceedingly wide” on
this issue.1 In reviewing a denial of a motion for continuance,
1
Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir.
2
“we consider the particular circumstances of each case,
especially the reasons that appellant presented to the trial
court at the time the request was denied.”2
A corporation can be represented only by legal counsel, and
cannot appear in court on a pro se basis.3 The trial court gave
Luxor approximately two weeks in addition to the original thirty
days to retain new counsel. Luxor asserts that it did not
receive notification of the court’s order. However, the court’s
docket reflects that the parties were notified. The source of
Luxor’s assertion is a post-judgment deposition, which would not
have been before the district court when it made its decision,
and thus should not be considered by this court.4 Moreover, the
trial date had been set four months before, and two months before
Luxor’s counsel withdrew. Even if Luxor somehow was not informed
of the continuance, it still could have continued to attempt to
locate new counsel.
Luxor argues that its changed circumstances——its business
problems resulting from political turmoil in the areas it ships
1986); see also Command-Aire Corp. v. Ontario Mechanical Sales &
Serv. Inc., 963 F.2d 90, 96 (5th Cir. 1992).
2
United States v. Martinez, 686 F.2d 334, 339 (5th Cir.
1982).
3
K.M.A., Inc. v. General Motors Acceptance Corp., 652 F.2d
398, 399 (5th Cir. Unit B 1981).
4
See Topalian v. Ehrman, 954 F.2d 1125, 1131-32 n.10 (5th
Cir. 1992).
3
to——constitute grounds for reversing the denial of continuance.
However, changed circumstances generally refer to unexpected
matters that develop on the eve of trial, such as illness of a
key witness, illness of counsel, or newly discovered evidence.5
Luxor’s lack of counsel resulted from its inability to pay an
attorney for a period of over a year before the trial date.
Luxor did not inform the court of its business problems
until its letter the day before the trial. Luxor did not explain
what actions it had taken to secure new counsel since the last
continuance or how additional time would allow it to obtain the
needed funds for counsel. The trial court did not abuse its
discretion in refusing the request for a further continuance
under these circumstances.
AFFIRM
5
Daniel J. Hartwig Assocs., Inc. v. Kanner, 913 F.2d 1213,
1222-23 (7th Cir. 1990).
4