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Zente v. Credit Mgmt., L.P.

United States Court of Appeals, Fifth Circuit

June 15, 2015

JOSEPH ZENTE, Plaintiff - Appellant
v.
CREDIT MANAGEMENT, L.P., Defendant - Appellee

Appeal from the United States District Court for the Western District of Texas.

For JOSEPH ZENTE, Plaintiff - Appellant: Sergei Lemberg, Jenny Diane DeFrancisco, Esq., Lemberg Law, L.L.C., Stamford, CT.

For CREDIT MANAGEMENT, L.P., Defendant - Appellee: Robbie LuAnn Malone, Esq., Dallas, TX.

Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.

OPINION

Page 602

JAMES E. GRAVES, JR., Circuit Judge:

Albeit in the name of Plaintiff-Appellant Joseph Zente, his attorney, Sergei Lemberg, appeals the district court's referral of his conduct to the disciplinary committee of the Western District of Texas. We conclude that neither Zente nor Lemberg has standing to appeal that referral, which was not accompanied by any finding of misconduct, and dismiss the appeal.

I. Factual and Procedural Background

This case arises from Defendant-Appellee Credit Management, L.P.'s debt-collection phone calls to Zente. Lemberg filed this action for Zente in the Western District of Texas for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.,

Page 603

the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the Texas Debt Collection Act, Tex. Fin. Code § 392.001 et seq. Zente alleged that Credit Management harassed him with automated telephone calls to which he did not consent, and continued to call him after he requested that the calls cease. On July 1, 2014, after information and audio recordings were produced in discovery, Zente filed a motion for dismissal with prejudice. On July 14, Credit Management responded to the motion to dismiss by requesting sanctions against Lemberg under Federal Rule of Civil Procedure 11, asserting that Lemberg knew the allegations in the complaint were false and that the case was frivolous.

Three days later, before Lemberg responded to the request for sanctions, the district court granted Zente's motion to dismiss with prejudice. The district court denied the request for Rule 11 sanctions, holding that sanctions were unavailable because Lemberg filed the motion to dismiss first, and thus obviously within twenty-one days of knowing that Credit Management was seeking Rule 11 sanctions. See Fed.R.Civ.P. 11(c)(2).

However, in the same order, the district court stated that: " In addition, the undersigned will forward a copy of this file to the Admissions Committee of the Western District of Texas for a review and appropriate action, if any, regarding Mr. Lemberg's license to practice in the Western District of Texas." On July 16, the district court sent a referral letter to the Admissions Committee of the Western District of Texas outlining Credit Management's allegations regarding Lemberg's conduct, enclosing a copy of the order granting the motion to dismiss, and requesting " that the Admissions Committee make an appropriate investigation in this case to determine what action, if any, should be taken against Mr. Lemberg, as he is a licensed member of the Western District of Texas."

Lemberg filed a motion for reconsideration, contesting Credit Management's assertions regarding whether and when he received information establishing that the case should be dismissed. The district court denied the motion for reconsideration, explaining that its referral was intended to allow the Admissions Committee to ...


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