Carrie Lynn Luft P.O. Box 495953, Port Charlotte, Florida 33952 May 31, 2013 Friday VIA FACSIMILE e-mail, and regular mail to: Mark H. Muller Mark H. Muller, Esq. 5150 Tamiami Trail N., Suite 303 Naples, Florida 34103 (239) 774-1436 (239) 774-3426 Facsimile E-mail: Mark@MullerLawNaples.com Dear Mr. Muller: I am writing for your agreement and stipulation to three separate but related and critical matters which must be resolved before proceeding with this case. First, I am simply shocked to see that you are the attorney who filed a response on behalf of all the Defendants. I am writing now to you to ask that you step aside as attorney in this case, in that you have been named as a Defendant and ARE clearly a fact witness. The rules of professional conduct prohibit you from being an advocate and a witness in the same proceedings. See Rule 4-3.7, R. Regulating Fla. Bar. You must recognize that, even under the framework set forth in your own Motion to Dismiss, Mr. Muller, that you will be a witness "in this case. While it may be true that [t]he fact that counsel will be a material witness does not preclude him from participating in proceedings before and after trial. KMS Restaurant Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley, P.A., 107 So.3d 552 (Fla. 4th DCA 2/27/2013). In your case, you are going to have to defend your own statements in a manner inconsistent with the position of one or more of your clients, who themselves may have conflicting defenses. I would submit to you that you are clearly disqualified from serving as your own counsel, pro se, and as counsel for 1
other defendants by virtue of a conflict of interest and conflicting defenses which may require disclosure of confidential communications. Your clients have the right to waive a conflict of interest based on conflicting defenses providing that you make proper disclosure to them but (a) you must show that you made the proper disclosure to them and (b) their right to waive conflicts of interest is not absolute to the degree that it may infringe upon or limit my own rights to prosecute this case fully and fairly. See, e.g., Wheat v. the United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). It is clearly improper for a lawyer to simultaneously represent two clients when he is unable to maintain loyalty to both clients and may need to breach client confidentiality. Your statements to the Court regarding the securitized or non-securitized status of the Luft Loan among other things are statements of fact suggesting either actual factual knowledge based on observation or experience or else access to inside information. In light of the strong circumstantial evidence that your statements are false, your knowledge, thoughts, and behavior are all key elements concerning the questions of fraud on the Court. And of course, any fraud you committed would not be readily apparent from a review of the record and thus is extrinsic fraud as that phrase is traditionally defined under analysis of Rule 60(b)(4) and similar statutes (such as Florida Rule 1.540). Because this circumstance of your status as a witness breeds unfair prejudice and delay and undermines the credibility of our judicial system, I think you must agree that I have identified a violation of the Rules of Professional Conduct severe enough to call into question the fair and efficient administration of justice. In your Motion to Dismiss, you offered absolutely nothing to diffuse or dispute the seriousness of these allegations. You are a material witness to many of the facts you which you (signing your Motion under Rule 11) submit to the Court are frivolous or irrelevant. Your ability to claim privilege and to refuse to answer or appear as a witness would inevitably and unfairly prejudice me, so that the interests of justice require that you step aside as attorney in this case. I urge you to tender your Notice of Withdrawal and substitution of counsel to the Court immediately, and thus to save me the time and expense (and unnecessary delay) of filing a motion to disqualify you as counsel, which I submit to you will inevitably be granted under the circumstances (including the fact that you did not specifically deny a single factual allegation made against you in your Motion to Dismiss, and the Court should presume, as I 2
do, that you specifically have admitted their truth by your failure to deny any particulars). Second, to you and to your successor as Counsel, I request your stipulation to jointly move the Court to engage in jurisdictional discovery prior to the decision on your (or your successor s) motion to dismiss my Second Amended Complaint. In Eaton v. Dorchester Dev., Inc., 632 F.2d 727, 729 n.7 (11th Cir. 1982) the Eleventh Circuit discussed the benefits of jurisdictional discovery and found that such discovery should be considered a qualified right. I intend to ask the Court to grant me that right, especially in light of all your extensive factual contentions under 12(b)(1) and 12(b)(7). The Eleventh Circuit varies its approach according to the factual records presented by the plaintiff and by the method and timing of the discovery request. See Mother Doe I, 632 F. Supp. 2d at 1145 ("Two reported decisions of the Eleventh Circuit address the issue of jurisdictional discovery, with varying outcomes based primarily on the records presented in each case."). In the Ninth and Eleventh Circuits, for example, "it is not necessarily an abuse of discretion to reject a request for jurisdictional discovery because no formal motion was made." However, the Third Circuit has adopted a much more lenient position on what constitutes a request for jurisdictional discovery, apparently taking the view that the plaintiff need do no more than "mention the possibility of conducting such discovery in their opposition to the motion to dismiss." I would support the Third Circuit approach but I plan to make a formal motion to the Court and it is for that reason that I tender you this letter now, with authority for my contentions. Mother Doe I v. Al Maktoum, 632 F. Supp. 2d 1130, 1146 (S.D. Fla. 2007) ("The decision to allow jurisdictional discovery is very much a product of the timing and nature of any jurisdictional discovery request."). Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1022 (Fed. Cir. 2009) review recent cases and trends in jurisdictional discovery, but here in the 11 th see United Tech. Corp. v. Mazer, 556 F.3d 1260, 1280 81 (11th Cir. 2009) (noting "UTC should have taken every step possible to signal to the district court its immediate need for such discovery"); Mother Doe I, 632 F. Supp. 2d at 1144 (noting delay of nearly a year); Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 336 (3d Cir. 2009) (citing Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255 56 3
(1st Cir. 1966)); accord Compagnie Des Bauxites de Guinee v. L Union Atlantique S.A. d Assurances, 723 F.2d 357, 362 (3d Cir. 1983) ("The condemnation of plaintiff s proposed further activities as a fishing expedition was unwarranted. When the fish is identified, and the question is whether it is in the pond, we know no reason to deny a plaintiff the customary license."); Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 312 n.3 (S.D. Ind. 1997) (distinguishing a contractual relationship from the "total stranger" situation); Hansen v. Neumueller, 163 F.R.D. 471, 474 (D. Del. 1995) (concluding that there is a "presumption in favor of allowing discovery to establish personal jurisdiction"), 566 F.3d at 341 (Stapleton, C.J., dissenting) (concluding that the plaintiffs "never requested jurisdictional discovery in the District Court, and it would clearly be unfair to [the defendant] to allow them to successfully insist upon it in the course of this appeal"). Your entire contention that my fraud exception to Rooker- Feldman and Res Judicata depends on facts over which you and your clients have EXCLUSIVE CONTROL. Metcalfe, 566 F.3d at 336 n.9; see also Ciolli v. Iravani, 625 F. Supp. 2d 276, 292 (E.D. Pa. 2009) (noting that "many jurisdictional facts are in the exclusive control of the defendant and that, without the benefit of discovery, the plaintiff may be unable to meet his burden in establishing personal jurisdiction"). Having reviewed the case law, and my Second Amended Complaint still being less than a month old, I think that the Court must surely grant my request for jurisdictional discovery and for this reason, I earnestly request your (or your successor Counsel s) stipulation to such discovery now, to conserve time and judicial resources. Third, I believe that the circumstances of this case mandate your withdrawal and substitution OUT as counsel, as well as your stipulation to withdraw and to allow jurisdictional discovery at this early stage of litigation. Accordingly, as a tertiary but necessary matter, I request your (or your successor counsel s) stipulation to an extension of time until AFTER the completion of a full range of jurisdictional discovery to respond to your Motion to Dismiss, or else to strike your Motion to Dismiss without prejudice to your refiling it AFTER and subsequent to the satisfactory completion of jurisdictional discovery. If you answer that this entire case could be comprehended within the ambit of jurisdictional discovery I do not necessarily disagree with your point, but it is of no moment. 4
You have accused me of frivolous filing because I lack the facts over which YOU and YOUR CLIENTS necessarily exercise complete control, and in the interests of justice, I am entitled under 11 th Circuit Precedent to conduct jurisdictional discovery precisely because under Rooker-Feldman and Res Judicata, jurisdiction depends upon proof of fraud on the Courts, and jurisdictional discovery prior to ruling on the motions would demonstrably be an effective way of obtaining this proof. I hope that you will not unduly complicate the litigation in this case by refusing my very reasonable requests herein presented and proposed to you by way of this letter and offer of stipulation. Yours very truly, Carrie Lynn Luft Telephone: 941-585-7027 E-mail: carrie.luft@gmail.com 5