Friedman v. Bloomberg LP et al

Filing 184

ORDER: As per the attached order, the Plaintiff's Motion for Leave to File Rule 72 Objection Nunc Pro Tunc (ECF No. 166-1) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 9/14/2020. (Brambila, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------- x
DAN FRIEDMAN,
:
:
Plaintiff,
:
:
v.
:
:
BLOOMBERG L.P., CHRISTOPHER
:
DOLMETSCH, ERIC LARSEN, MICHAEL :
HYTHA, and ANDREW DUNN, MILLTOWN :
PARTNERS, PATRICK HARVERSEN,
:
D.J. COLLINS, OLIVER RICKMAN,
:
PALLADYNE INTERNATIONAL ASSET
:
MANAGEMENT B.V., ISMAEL ABUDHER, :
and LILY YEO,
:
:
Defendants.
:
-------------------------------- x

Civil No. 3:15-cv-443 (AWT)

ORDER RE PLAINTIFF’S MOTION FOR LEAVE TO FILE
RULE 72 OBJECTION NUNC PRO TUNC
For the reasons set forth below, Plaintiff’s Motion for Leave
to File Rule 72 Objection Nunc Pro Tunc (“Motion for Leave”) (ECF
No. 166-1) is hereby DENIED.
Plaintiff Dan Friedman seeks leave to file an untimely Rule
72 objection to the magistrate judge’s Order on Defendants’ Motion
to Compel (ECF No. 143) in which the defendants’ motion to compel
Friedman

to

produce

certain

documents

(filed

by

defendants

Bloomberg L.P., Chris Dolmetsch, Erik Larson, Michael Hytha, and
Andrew Dunn) (see ECF No. 109) was granted in part.
Friedman states that “[t]his request is made to accommodate
a serious, temporarily debilitating medical condition impacting

the ability of plaintiff’s lead counsel to work.” Mot. for Leave
at 1-2. He states that the objection could not be completed because
plaintiff’s lead counsel had a fall in an airport on October 20,
2019. He explains:
In the normal course a motion for extension would have
been filed, but a specific date for filing could not be
requested and an indefinite extension request would not
have been either accurate or helpful. There was no
predictable end date to the . . . [consequences of the
medical condition], and co-counsel was immersed in
multiple other cases with deadlines. The option was to
wait until there was a reduction of the intensity of the
symptoms to file.
Id. at 2.
Federal Rule of Civil Procedure 6(b)(1)(B) provides that
“[w]hen an act may or must be done within a specified time, the
court may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because of
excusable neglect.” “To determine whether a party’s neglect is
excusable, a district court should take into account: ‘[1] the
danger of unfair prejudice to the [opposing party], [2] the length
of the delay and its potential impact on judicial proceedings, [3]
the

reason

for

the

delay,

including

whether

it

was

in

the

reasonable control of the movant, and [4] whether the movant acted
in good faith.’” Tancredi v. Metro. Life Ins. Co., 378 F.3d 220,
228 (2d Cir. 2004) (quoting Pioneer Inv. Serv. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Here, assuming
arguendo that the first and second factors have a neutral impact

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on the court’s analysis, the third and fourth factors weigh so
heavily

against

a

finding

of

excusable

neglect

as

to

be

controlling. See Silvanch v. Celebrity Cruises, Inc., 333 F.3d
355, 366 (2d Cir. 2003) (“[D]espite the flexibility of ‘excusable
neglect’ and the existence of the four-factor test in which three
of the factors usually weigh in favor of the party seeking the
extension,

we

and

other

circuits

have

focused

on

the

third

factor[.]”); In re Bulk Oil (USA) Inc., No. 89-B-13380, 2007 WL
1121739, at *6-8 (S.D.N.Y. Apr. 11, 2007) (“The Second Circuit has
. . . refused to find excusable neglect in cases where the moving
party has failed to provide a valid explanation for its delay.”)
(collecting cases).
The original deadline for the plaintiff to file his objection
was September 14, 2019. See ECF No. 158-1 at 6. On September 13,
2019, the plaintiff filed a consented-to motion to extend the
deadline to October 3, 2019, which was granted by the court. See
ECF Nos. 146, 149. On October 3, 2019, he filed a second consentedto motion to extend the deadline to October 9, 2019, which was
granted by the court. See ECF Nos. 151, 152. Finally, on October
8, 2019, he filed a third consented-to motion to extend the
deadline to October 14, 2019, which was granted by the court. See
ECF Nos. 153, 154.
The plaintiff did not file an objection by October 14, 2019.
On October 17, 2019, plaintiff’s lead counsel sent an email to

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defendants’ counsel stating that he would be “putting in a nunc
pro tunc filing [that day] or [the next day].” Mem. of Law in
Support of Defs.’ Mot. for Order to Show Cause (“Mem.”) at 8, ECF
No. 158-1. He failed to do so. But on October 4, 2019, the plaintiff
had filed a notice of appeal of the dismissal of a related lawsuit
before the court. See Friedman v. SThree Plc. et al (the “Palladyne
Lawsuit”), No. 3:14-cv-378 (AWT), ECF No. 366. Then, on November
4, 2019, the plaintiff filed forms before the Court of Appeals in
connection with that appeal. During this period, the plaintiff did
not file an objection, nor did he request a retroactive extension
of the due date for filing an objection.
On November 7, 2019, plaintiff’s lead counsel advised counsel
for the defendants that he would “finish up the Rule 72 papers for
filing over the weekend on a nunc pro tunc basis.” Mem. at 9.
Counsel for the defendants responded on November 10, 2010 stating
that the plaintiff “should file whatever [he] wish[es] with the
Court but our client is not consenting to a further extension,
given that the decision was issued back in August.” Id. The weekend
passed without the plaintiff filing either an objection or any
request for retroactive extension of the due date for an objection.
On November 12, 2019, counsel for the defendants wrote an
email to plaintiff’s counsel stating:
As you have not filed an objection to the magistrate’s
order of August 30 granting our motion to compel, and
the deadline to do so (already extended three times) has

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long since passed, please produce the documents at issue
in the motion no later than close of business this
Friday, November 15, 2019. (Since you already provided
the documents to the court for in camera review, we
presume it will not take very long to add bates stamps
and produce them to us.) If you decline to comply with
the court’s order compelling production of these
documents, we will have to seek relief from the judge.
Id.
On November 16, 2019, the plaintiff filed a notice of appeal
in

the

Palladyne

Lawsuit

with

respect

to

an

order

imposing

sanctions for failure to comply with discovery obligations. See
Palladyne Lawsuit, ECF No. 370. On November 18, 2019, plaintiff’s
lead counsel advised counsel for the defendants that he would get
back to them by the next day about their request that he comply
with the order. However, the plaintiff did not comply with the
order, did not file an objection, and did not file a request for
retroactive extension of the due date for filing an objection.
The plaintiff filed the instant motion on January 14, 2020,
only after the defendants had moved, on November 27, 2019, for an
order to show cause why the plaintiff should not be sanctioned for
failure to comply with the magistrate’s order and the plaintiff
had filed his opposition to that motion on December 23, 2019.
As an initial matter, the court notes that the deadline for
filing the objection was extended only to October 14, 2019 and
plaintiff’s lead counsel suffered his fall on October 20, 2019. So
the October 14, 2019 deadline to file an objection had already

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passed six days earlier. But neither an objection nor a fourth
motion for extension of time had been filed as of October 20, 2019.
Moreover, as plaintiff’s lead counsel represented to counsel
for the defendants in his October 17, 2019 email, he was working
with

his

co-counsel

on

an

objection

and

there

is

no

valid

explanation for why his co-counsel, who has had an appearance in
this case since it was filed, was unable to complete an objection
or at least file a fourth motion for extension of time. The
plaintiff states that “co-counsel was immersed in multiple other
cases with deadlines.” Mot. for Leave at 2. But “[o]ther legal
work is not a reasonable excuse for failure to meet federal
litigation deadlines, and it is certainly not a reasonable excuse
for failing to request an extension of time prior to expiration of
the original deadline.” Jones v. E. Hartford Police Dep’t, No. 13cv-1007, 2016 WL 1273170, at *7 (D. Conn. Mar. 31, 2016); see also
Shields v. Vivus, Inc., No. 09-cv-5495, 2010 WL 2816881, at *4
(S.D.N.Y. July 16, 2010) (noting that court “does not accept work
on other matters as a valid excuse” for failing to make timely
filings); Mason v. Schriver, No. 96-cv-6942, 1999 WL 498221, at *3
(S.D.N.Y. July 13, 1999) (“Preoccupation with another trial and
mere oversight [of the deadline] are not reasons for delay that
are sufficient to satisfy the standard for excusable neglect.”)
(citing Canfield v. Van Atta Buick/GMC Truck Inc., 127 F.3d 248,
251 (2d Cir. 1997)).

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The court concludes that the plaintiff has failed to provide
a valid explanation for his delay in filing an objection and cannot
conclude that he acted in good faith. The plaintiff suggests that
“the option” was to wait until what turned out to be January 14,
2020

to

file

the

instant

motion

with

the

proposed

objection

attached. However, the plaintiff had other options. The plaintiff
could have filed a fourth motion for extension of time in which to
file an objection even though he knew it would be opposed by the
defendants. It appears that he expected that such a motion would
be denied by the court, and consequently, adopted a different
strategy for obtaining an extension -- namely, the course of
conduct

he

pursued

here.

It

is

apparent

from

the

fact

that

plaintiff’s counsel worked on other matters in this case and a
related case over which the undersigned is presiding that he had
both the ability and the time to file a fourth motion for extension
of time. Also, if we accept at face value the representations by
plaintiff’s lead counsel to counsel for the defendants in his
October 17, 2019 email to the effect that his co-counsel “ha[d] a
penultimate draft for review and then we [had] to do some double
redactions,” Mem. at 8, he also had the ability and the time to
file an objection.

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It is so ordered.
Dated this 14th day of September 2020, at Hartford,
Connecticut.

/s/ AWT
Alvin W. Thompson
United States District Judge

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