Motion to dismiss

“You lawyers always look after each other,” Djamilia said to Albert. 

He rolled his eyes. “Fine. What do you think Judge Preston was before he was a judge?”

“I can’t handle her any more,” Djamilia said. “She’s costing the estate a fortune. She objects to every motion.” 

Albert shook his head once, twice. “Davida is a capable and intelligent lawyer.” 

“Just draft the motion, Albert,” Djamilia said and hung up. 

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The hearing was on November 15th. Djamilia wore her expensive heels and waited as Judge Preston heard the cases before hers: the personal bankrupts in their hoodies, a failed pizzeria owner listening mutely, somewhere between depressed and defiant. Running the docket briskly, Judge Preston looked tanned, which meant that he and Rachel had spent a week visiting Holt, their son at FSU, who would be graduating soon. Djamilia would write a note. 

Djamilia saw Davida at the back of the courtroom, dressed down, streaks of grey through her black hair. She was paying no attention to the court but worked, silent and upright, on her laptop. She had come alone today, none of her handsome associates in tow.

The clerk announced: “Archer Group, motion to dismiss,” and Djamilia took her place at the podium. 

Before she could say anything, the judge began. “I have to say that I am surprised by this motion today, Ms. Baring. In my view, creditors’ counsel has made a substantial contribution to this case. What’s the … the basis of this motion?” He picked up Djamilia’s brief. 

“The basis is case efficiency, your honor. I have a statutory duty under section 327(a) to -“

“I read the brief, Djamilia. You don’t need to tell me what the code says.”

Judge Preston had always treated Djamilia with deference. Indeed, his courtroom was the one place where she felt her long hours, her job-obsessiveness, her sacrifices were recognized and appreciated. His brusqueness was a surprise. 

She tried to regain herself. “Judge, this motion is about getting the restructuring plan over the line. Davida has been a valuable member of our team but the fact is her interests are adverse to ours.”

The judge glanced to Davida and back to Djamilia. 

“Of course they’re adverse, she’s management’s counsel.”

“The fees, your honor -“

“I’ve read the fee statements, Ms. Baring. There’s nothing out of order there, nothing atypical or unreasonable. Enough. This motion is dismissed.” He turned to the bailiff unhappily. “Next case.”

Djamilia gathered her papers from the podium as Davida strode past, giving off a definitive air of satisfaction.

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Normally, Davida’s fee statements arrived by post only, old-fashioned. Later that afternoon, however, Djamilia received a pdf from Davida’s billing person. There was just one fee entry: 

Guffrey, Davida. Preparing for and attending dismisssl hearing: $3,500. 

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In the weeks leading to Christmas, Djamilia started to think of herself as a soldier, or a general. Yes, the initial skirmish with Davida had been lost but the longer campaign continued. Her leadership in the team calls started to take on a military hue. For example:

“Ladies and gentlemen, the battle is the plan of restructuring, the hour is the last day of December. Our path will be hard, our enemies legion, but with patience and cunning we shall prevail.”

Towards Davida and her team, Djamilia adopted a disciplined, long-term strategy. As a rule, Djamilia was conscientious of other people’s schedules but now she reversed this policy. She waited until Friday to ask for urgent opinions, scheduled calls at 7pm, sent chasers on the weekend. 

She also became deliberately capricious. One week, she offered Davida’s associate Tom effusive praise; while Jadir, whose work was indistinguishable, she treated with unmasked contempt. The next week, she reversed their roles. 

In the last week of November, the strategy seemed to be working. Both associates went out sick. Davida herself missed a call for personal reasons, garbled a few emails, responded to others at 2am. On the last day of the month, Djamilia happily saw that her assumption and rejection motion had been approved by Judge Preston without a word of comment or opposition from Davida’s team. 

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But the week before Christmas - without previewing it to Djamilia - Davida filed an opposition to the restructuring plan. It was thirty-five pages. It called Djamilia’s plan “ill-considered and inequitable”. 

Djamilia gathered her troops. She called Davida and yelled at her. Then she called Tom and Jadir. She had her team do the same. She sensed she was losing credibility among her team. Albert asserted that they would not make the year-end deadline, the deadline that she had told the creditors that she would meet, the deadline the creditors were counting on. She redoubled her efforts. 

On the 24th, Albert filed a long, well-written response to Davida’s claims. No changes were made to the plan. She scheduled an all-hands for Christmas Day at noon. 

In the morning, Djamilia skyped with the kids, who were at Michael’s this year, and then dialed in. 

“Good morning, everyone,” she said. “Thank you for your commitment at this time of year. I know it’s difficult but I think that with grit we can make it to the top of this hill by thirty one December. I trust everyone has read our counter-pleading.”

Quickly, with an audible grin, Davida said, “Read it? Judge Preston rejected it this morning.”

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And so New Year’s Eve came and went. 2020. 

In January, Djamilia and the team answered the objections that Davida had raised at Christmas. They revised the plan. In February, Davida responded to the objections. At this point, Davida stopped joining the weekly calls and prevented the associates from joining either. “Any issues not addressed by the briefings can be sent by email,” she wrote. 

On Djamilia’s side, the creditors were becoming fatigued and impatient. One of them, a sweet bearded man from Suntory Capital, openly asked if Djamilia wanted to withdraw. Someone from Pierpont Advisors could take over, he suggested. 

Later that day, she booked a flight to Pisa. It was time for a vacation. 

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At Newark airport, Djamilia was drinking a latte at the back of Dunkin Donuts when she saw Davida looking up at the flight screens. She wore her usual mannish blazer but somehow looked older than when Djamilia saw her at work - more like a middle-aged mom than a senior partner. Djamilia crouched down low in her seat and sent out her worst vibes.

Djamilia’s flight was delayed. There was an alert about a new virus and some Asia flights had been cancelled, causing domino havoc across the world’s airports. Djamilia ordered another coffee and a couple bagels and settled herself back into the Dunkin. She would wait here to avoid running into Davida.

But, finally boarding, there Davida was sitting in first. They were not three meters apart as Djamilia trundled down the aisle open-mouthed. A moment of horror as they looked into one another’s eyes. Finally, Davida broke the stare, fishing her headphones out of her bag.

When they finally landed, she let everybody go before her. Anything to put some distance between her and Davida. 

Visas went okay but the wait for her rental car took forever. It seemed like no thought at all had been put into the system. There were forty people waiting and six car rental agencies but it turned out everyone was waiting for the same agency. 

At last, she arrived at the Agriturismo, a well-manicured affair thirty minutes from San Giminiano. As she walked past the dining room, the guests were finishing up. And there, there, at a single table, drinking a carafe of white, a fall sweater around her shoulders: Davida. Already finished with dinner, looking the lady, she smirked at Djamilia. 

Djamilia yelled out, “What are you doing here?”

Davida just closed her eyes and smiled. 

“Yeah,” Djamilia muttered and slumped to her room. “Yeah.”

And her bedroom was too small and damp. 

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Djamilia slept until 2am but then woke up, and couldn’t get back to sleep. She went to the bathroom and a cockroach ran under the shower between the tiling and the ceramic. She called reception but there was no answer.

At 7am, she went down to try to change rooms. The receptionist stayed seated and shriveled up her face as if she could not understand what Djamilia was saying. She said something in Italian to the office behind her and a balding man peered out. He spoke to the receptionist in Italian and then looked at Djamilia. 

“No, no. We have no other rooms,” he said. 

Djamilia and he argued for a while but it was futile. 

“Well, can you at least send someone to clean it?” 

The man waved a finger in her face, “Alora, every day we clean it, si.”

Djamilia walked around the corner into breakfast and there Davida was again, primly reading the FT. 

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Djamilia spent the day at the beach and relaxed a little. The farther she was from Davida and the hotel, the better. 

She read her telephone. The coronavirus was sweeping across the globe. The newspapers were full of cancellations, infections, deaths, panic. It was all any of the neighboring sunbathers were talking about. 

When she got back to the hotel, the balding manager flagged her down across the commotion of departing passengers. 

“Signora, you must leave - we are closing the hotel!”

That seemed like an overreaction but Djamilia had already decided to get back to New York in any case. This vacation had been a failure. 

She spent the day on the internet trying to get back but flights were grounded. She was stuck. 

She returned to the dining room. The staff had all but deserted, only three people remained including the balding manager. The receptionist was also there. They spoke to one another rapidly in Italian. 

Djamilia said that she had been unable to book a flight. 

“Signora, I insist. You must leave the hotel. We are closing. This is a health matter. It comes direct from the government.” 

He again spoke to the receptionist. It was clear that they were insulting her. Djamilia began to cry. 

Suddenly there was a torrent of fast, angry Italian from the door of the dining room: Davida stood. She was chewing the manager out. 

The receptionist now stood and the three yelled at each other in Italian, swearing, gesticulating. At last, the receptionist stormed out and the manager slunk away. 

Davida smiled at Djamilia. “Come on,” she said. “He’s bringing us some coffee and breakfast. Looks like we’re stuck here.”