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Dr. Barry Eppley Tries To Deny Lucille Iacovelli Due Process in Indiana Federal Court

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Dr. Barry Eppley Tries To Deny Lucille Iacovelli Due Process in Indiana Federal Court Powered By Docstoc
					Case 1:09-cv-00386-SEB-JMS

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Filed 04/15/2009

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) LUCILLE IACOVELLI, ) ) Defendant. ) __________________________________________) DR. BARRY EPPLEY, MD, DMD,

Cause No. 1:09-cv-386-SEB-JMS

OPPOSITION TO DEFENDANT’S INFORMAL REQUEST FOR CONTINUANCE, TO BE REPRESENTED BY NON-ATTORNEY NON-PARTY, AND TO APPEAR TELEPHONICALLY AT PRELIMINARY INJUNCTION HEARING Dr. Barry Eppley, by counsel, submits this opposition to the informal request by defendant Lucille Iacovelli as submitted by letter to the Court dated April 14, 2009 (Docket No. 36). In her letter, Ms. Iacovelli requests leave to appear telephonically at the preliminary injunction hearing scheduled for April 17, 2009, and further requests that Rich Bergeron be permitted to represent her at that hearing. Ms. Iacovelli further requests a thirty-day continuance of, apparently, all proceedings in this case. Dr. Eppley respectfully opposes those requests. In the Court’s April 6, 2009 Order regarding Ms. Iacovelli’s informal request to appear telephonically at the April 7th hearing (Docket No. 19), the Court stated, with emphasis in the original: “Mr. Bergeron, who is not an attorney, may NOT participate in the Show Cause hearing as Defendant’s de facto attorney or spokesperson.” In the April 8th Order following that hearing (Docket No. 22), the Court granted Dr. Eppley’s motion to prohibit Mr. Bergeron from engaging in the unauthorized practice of law, and reiterated: “Mr. Bergeron may not serve as Defendant’s

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de facto lawyer or spokesperson in this cause.” Notwithstanding the Court’s unambiguous decision on that point, Ms. Iacovelli has again requested that Mr. Bergeron be permitted to act as her advocate and de facto attorney at the preliminary injunction hearing on April 17th, asserting that she cannot appear personally or by actual counsel, and that the strain of appearing even by telephone would be too great. See April 14, 2009 Letter (Docket No. 36) (“I respectfully request that Rich Bergeron have an opportunity to appear at this coming hearing via telephone”). The defendant has offered no grounds for changing this Court’s determination that Mr. Bergeron should not be permitted to engage in the unauthorized practice of law by attempting to represent Ms. Iacovelli in this case. The Court has also been clear in ruling that Mr. Bergeron is not a party to this case and cannot insinuate himself in the proceedings as though he were. He participated by telephone in the April 7th hearing only as Ms. Iacovelli’s witness. See April 6, 2009 Order (Docket No. 19). The Court’s April 9th Order (Docket No. 23) accepted for filing certain documents tendered by e-mail by Mr. Bergeron, but expressly clarified that “nothing in those filings effectively makes Mr. Bergeron a party in the case.” The Court reiterated in the April 13, 2009 Entry (Docket No. 34), with emphasis in the original: “Purported claims of Rich Bergeron in this action are of no effect at this point. Mr. Bergeron is not a party to the complaint, nor has he been made a party by appropriate proceedings subsequent to the filing of the complaint.” As a non-party, accordingly, Mr. Bergeron is not entitled to appear at the preliminary injunction hearing, telephonically or otherwise, in order to represent himself in any pro se capacity. Ms. Iacovelli’s request that he appear by telephone in her stead, therefore, is a request that he be allowed to represent her, the actual party, as a de facto lawyer.

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The request for a thirty-day continuance is untenable and threatens irreparable injury to Dr. Eppley. Pursuant to Fed. R. Civ. P. 65(b)(2), a temporary restraining order (“TRO”) expires after ten days, unless the Court within that time extends it up to an additional ten days. The Court, accordingly, extended the TRO in this case in the April 8th Order (Docket No. 22), through and including April 17th. By the terms of that Order, the TRO will expire at that time, and by Ms. Iacovelli’s continuance request there would be no preliminary injunction in effect from that point forward. Notably, Ms. Iacovelli has not requested or consented to any additional extension of the TRO, and apparently seeks a thirty-day period in which she would not be subject to any restraint or injunctive relief. Even if she were to agree to an extension, there is already a substantial record demonstrating that Ms. Iacovelli and her associates have willfully violated the existing TRO. See Third Affidavit of Counsel (Docket No. 31); Supplement to Show Cause Motion (Docket No. 32). Defendant should not be granted additional time to engage in violations of the TRO. The Court has been tolerant in allowing Ms. Iacovelli a degree of informality in the proceedings to date, allowing her to appear telephonically at the April 7th hearing in response to a letter request, accepting for filing the documents tendered by e-mail by Mr. Bergeron, and postponing the preliminary injunction hearing in order to permit her to seek counsel or to appear in person. At the same time, the Court has repeatedly informed Ms. Iacovelli that her pro se status is not a license to disregard the rules of procedure and evidence. See April 8, 2009 Order (Docket No. 22); April 9, 2009 Order (Docket No. 23); April 9, 2009 Entry (Docket No. 28); April 13, 2009 Entry (Docket No. 34). Despite the Court’s directions, Ms. Iacovelli has submitted her pending requests by faxed letter, without filing any motion, and again seeks leave to appear by telephone through a non-attorney advocate, Mr. Bergeron.

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To the extent Ms. Iacovelli intends to offer evidence or engage in cross-examination at the preliminary injunction hearing, Dr. Eppley respectfully objects to her request to participate by telephone. The Court’s ability to observe testimony, make credibility determinations and evaluate the evidence would be impaired, and the Court’s control over the proceedings before it would be diminished, if one party were present only by telephonic communication. WHEREFORE, Dr. Eppley respectfully opposes Ms. Iacovelli’s informal requests to be represented by Mr. Bergeron at the preliminary injunction hearing, to participate in that hearing by telephone, and to continue proceedings in this case for thirty days.

By his attorneys, LEWIS & KAPPES By:/s/ Todd A. Richardson Todd A. Richardson (16620-49) One American Square, Suite 2500 Indianapolis, Indiana 46282 (317) 639-1210 Counsel for Plaintiff, Dr. Barry Eppley

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CERTIFICATE OF SERVICE I hereby certify that on April 15, 2009, that the foregoing was filed electronically. Notice and service was sent to the following party via email and United States Postal Service Mail, this 15rd day of April, 2009: Lucille M. Iacovelli 3 Deer Hollow Road Forestdale, MA 02644-1714 luciacovelli@gmail.com I further certify that notice of the filing of the foregoing pleading was given to the following by sending a copy of the filing to the following individual via United States Postal Service Mail, this 15th day of April, 2009: Richard Bergeron 141 Green Street Abington, MA 02351

s/Todd A. Richardson Todd. A. Richardson

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DOCUMENT INFO
Description: EPPLEY, MD, DMD v. IACOVELLI, Judge Sarah Evans Barker, corruption, judicial review, Indiana Kangaroo Court, Judge Recusal, Lanham Act Fraud: www.eppleyplasticsurgerysucks.com, www.lewis-kappessucks.com