9/26/07 – Defendant [Thomas Scarcello] Representing Himself In Mattress Suit
Times Record
September 26, 2007
by Wanda Freeman
Defendant Representing Himself In Mattress Suit
The main defendant in a federal lawsuit alleging he illegally sold high-end mattresses intended for donation is representing himself after all of his attorneys obtained permission to withdraw as counsel, according to court records.
A complaint, filed in February in U.S. District Court, Western District of Arkansas, by Tempur-Pedic International stated the company contracted with Waste to Charity, a New Jersey not-for-profit agency, to distribute 8,000 mattresses and other products valued at $15 million to charitable organizations working in areas stricken by Hurricane Katrina and other storms. The contract expressly prohibited selling the goods or distributing them for sale.
But Tempur-Pedic claims that Waste to Charity, owner Jack Fitzgerald of Sarasota, Fla., and several other groups and individuals sold and improperly distribute more than half of the goods.
Fitzgerald allegedly sold 5,500 foot comforters for $7,400 and 490 mattresses for $49,000 to a warehouse in Bowling Green, Ky.
The complaint also alleges he delivered 4,000 mattresses to Action Distributors Inc. and owner Thomas Scarcello.
Tempur-Pedic claims Scarcello, believed to be a Moffett resident, took those mattresses either to his Fort Smith warehouse or to a Booneville warehouse that formerly housed the Ace Comb factory, where he sold or tried to sell them.
The case is set for trial Feb. 11.
Fitzgerald came to be his own attorney following a flurry of motions and court orders this month, starting with a Sept. 7 filing by one of Tempur-Pedic’s attorneys, Edward F. Maluf of the New York law firm Bingham McCutchen.
Maluf stated that Tempur-Pedic had served notice June 5 that the depositions would be taken over several days at the law office of Warner, Smith & Harris in Fort Smith. Fitzgerald was set for Sept. 19.
After agreeing to the deposition dates, Maluf stated, “counsel for WtC and Mr. Fitzgerald abruptly announced that Mr. Fitzgerald would not appear for deposition in Fort Smith after all, but would instead only be made available for deposition in the Middle District of Florida.”
On Sept. 18 a motion to withdraw as counsel by two attorneys with the Carlton Fields law firm in Tampa, Fla. , was filed in the case.
In their motion, Ellen K. Lyons and Mark P. Rankin assert that financial disagreements had developed between them and Fitzgerald, and that he had stopped communicating with them altogether, making it impossible to represent him.
Judge Robert T. Dawson granted the motion Sept. 19.
On Sept. 20, local attorney David L. Dunagin also filed to withdraw, stating he had been “associated” by the Carlton Fields firm to serve as local counsel but had no separate agreement with Fitzgerald nor any direct communication with him.
Dawson granted Dunagin’s motion Sept. 21.