Acosta v. Puccio

Filing 26

ORDER. The 25 order attached the incorrect PDF document and is therefore VACATED. As stated in the text of the 25 order, the 21 motion to dismiss and 23 motion for extension of time to file a Rule 26(f) report are DENIED. The Court adopts the schedule in the attached, corrected PDF document. Signed by Judge Michael P. Shea on 5/14/2019. (Guevremont, Nathan)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

R. ALEXANDER ACOSTA, SECRETARY OF
LABOR,
No. 3:18-cv-00532 (MPS)
United states Department of Labor
Plaintiff,
v.
KATHRYN T. PUCCIO,
Defendant.

MEMORANDUM OF DECISION AND SCHEDULING ORDER
The Secretary of Labor brings this action against Kathryn T. Puccio alleging violations of
the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. The Secretary filed his
complaint on March 29, 2018. (ECF No. 1.) After granting two motions for extensions of time to
serve the complaint, I set a service deadline of October 1, 2018. (ECF No. 11.) The Secretary
filed an affidavit of service stating that Ms. Puccio was personally served on October 16, 2018,
but she refused to take the documents. (ECF No. 12.) Ms. Puccio failed to answer the complaint.
Accordingly, on January 24, 2019, I ordered the Secretary to file a motion for default entry
within 21 days. (ECF No. 13.) The Secretary filed a motion for default entry on January 30, 2019
(ECF No. 14), the Clerk entered default on January 30, 2019 (ECFF No. 15), and the Secretary
filed a motion for default judgment on February 19, 2019. (ECF No. 16.)
On March 12, 2019, Ms. Puccio filed a motion to set aside the default. She acknowledged
that she had received the summons and complaint, but explained that as “a widowed housewife
whose formal education is limited to a high school degree,” she did not “understand[] that the
papers should have been forwarded to [her attorney].” (ECF No. 17 at 1.) Defense counsel
represented that he reasonably expected that Ms. Puccio had “good defenses” to the allegations
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in the complaint. (Id 1–2.) I granted the motion to set aside default on April 17, 2019. (ECF No.
20.) I required Ms. Puccio to file her responsive pleading within 14 days and counsel to confer
and file a joint Rule 26(f) Report within 21 days. (Id.) I also reminded the parties of their
obligation under Fed. R. Civ. P. 1 to ensure a “just, speedy, and inexpensive determination” of
the proceeding, particularly in light of the lengthy delays at the outset of the case. (Id.)
Ms. Puccio has now filed a motion to dismiss the complaint for lack of personal
jurisdiction and for insufficient service of process. (ECF No. 21 at 1–2.) She asserts that service
of process was untimely because the Secretary served the summons and complaint on October
16, 2018—15 days after the twice-extended deadline for service. (Id.) Further, she explains, she
is a “septuagenarian” and “as time passes, [her] health and ability . . . to participate in her
defense do not increase . . . .” (Id. at 2.) The Secretary opposes the motion. (ECF No. 22.) He
details his communication with Ms. Puccio’s former attorney about the claims before the filing
of the complaint and efforts at service after he instituted this action. (Id.) In short, he asserts that
Ms. Puccio deliberately avoided accepting service until it became clear that she faced financial
consequences if the Court entered default judgment. (Id.)
The Secretary has shown good cause for failing to serve the complaint within the
deadline established by the Court. See Counter Terrorist Grp. U.S. v. New York Magazine, 374
F. App’x 233, 234 (2d Cir. 2010) (“Although a district court must grant an extension [for
service] where good cause is shown, it may also grant a discretionary extension absent such
showing.”). In particular, the Secretary explains that the process server attempted service at Ms.
Puccio’s residence on multiple occasions, but the house appeared vacant. He mailed a request for
waiver of service, but received no response. He was nevertheless able to serve Ms. Puccio at her
residence in October, suggesting that she had been living at that location all along. Ms. Puccio
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also had actual notice of the Secretary’s claims against her through the Secretary’s discussions
with her attorney before the complaint was filed. Here, the only prejudice Ms. Puccio identifies
from the untimely service is her potential inability to recall information relevant to her defense.
The parties jointly represent that, if the Court dismisses the complaint for insufficient service of
process, the Secretary will simply refile the complaint, and Ms. Puccio’s attorney agrees that he
will accept service on her behalf and file an answer promptly. (ECF No. 24 at 1–2.) Thus,
dismissing the case now would only cause additional delay, ultimately working to her detriment.
The parties have also filed a joint motion for extension of time to conduct a planning
conference and file a report pursuant to Local Rule 26(f). (ECF Nos. 23 & 24.) The parties filed
their motion one day before their report was due. Under Local Rule 7(b), all motions for
extensions of time must “be filed at least three (3) days before the deadline sought to be
extended, except in cases in which compelling circumstances warranting an extension arise
during the three days before the deadline.” The joint motion does not describe any “compelling
circumstances” warranting a departure from the Local Rules. As a result, the motion is DENIED.
In view of the parties’ apparent unwillingness to cooperate to move this action forward, the
Court adopts the following schedule for this case:
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Plaintiff shall file her responsive pleading within 7 days of this order.

•

All discovery will be completed, not propounded, by November 8, 2019.

•

Dispositive motions are due by December 8, 2019.

•

If a dispositive motion is filed, the joint trial memorandum will be due thirty days from
the date of the Court’s decision on the motion. If no dispositive motion is filed, the joint
trial memorandum is due by January 10, 2020. The case will be considered trial ready
immediately upon the filing of the joint trial memorandum.

•

The Court will hold a Telephonic Status Conference on August 2, 2019 at 10:00 a.m.
The Court will circulate dial-in information via email. The parties will file a joint status
report by July 26, 2019.
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•

Plaintiff’s expert reports are due August 9, 2019, and depositions of Plaintiff’s experts
will be completed by September 9, 2019. Defendant’s expert reports are due October 8,
and depositions of Defendant’s experts will be completed by November 8, 2019.

The Court is unlikely to grant extensions to this schedule, and will not do so absent a showing of
diligence and good cause. The parties are responsible for following the appended instructions
regarding (1) joint status reports, (2) discovery disputes, and (3) the joint trial memorandum, all
of which the Court hereby incorporates as part of this Scheduling Order. Finally, defense counsel
has not yet filed an appearance in accordance with Local Rule 5(b). He shall file an appearance
within 7 days.

IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.

Dated:

Hartford, Connecticut
May 10, 2019

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I.

INSTRUCTIONS FOR STATUS REPORTS
On or before the deadline assigned by the Scheduling Order, the parties shall file with the

Clerk’s Office, with certification copies sent to all counsel of record, an original joint status report,
stating the following:
(a) The status of the case, describing the status of discovery and identifying any pending
motions and any circumstances potentially interfering with the parties’ compliance
with the scheduling order;
(b) Interest in referral for settlement purposes to a United States Magistrate Judge or to the
District’s special masters program;
(c) Whether the parties will consent to a trial before a magistrate judge; and
(d) The estimated length of trial.
No status reports will be accepted via facsimile.

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II.

INSTRUCTIONS FOR DISCOVERY DISPUTES
All discovery issues should be resolved in good faith by counsel in accordance with their

obligations to the Court under the Federal Rules of Civil Procedure and the District’s Local Rules.
Before filing any motion relating to discovery, the parties are required to comply with the
following requirements:
1.

Counsel for parties to discovery disputes must jointly contact Judge Shea’s Chambers by
telephone to notify the Court that a dispute exists and provide a brief oral description of
the nature of the dispute. Except in extraordinary circumstances, Chambers staff will not
entertain such a communication unless counsel for all parties to the discovery dispute are
on the telephone when the call is made to Chambers.

2.

Within three (3) days of counsel contacting Chambers to notify the Court of the existence
of a dispute, each party must provide Chambers via e-mail with a written submission
summarizing the nature of the dispute and briefly explaining its position. The written
submission shall take the form of a letter and shall be no more than two pages in length.
All such communications must be copied to opposing counsel and must include the
certification discussed in paragraph 6 below.

3.

If the dispute involves a written interrogatory, request for production, request for
admission, deposition notice and/or subpoena (the “discovery request”), counsel for the
party who served the discovery request at issue will, along with the written submission,
provide Chambers via e-mail with a copy of the particular discovery request at issue and
the opposing party’s written response to that particular request. Judge Shea does not need
the entire discovery request and response but requires only the particular portions of the
discovery request and response at issue.

4.

Other than the written submission and any discovery requests and responses at issue, Judge
Shea does not require, and does not want, counsel for the parties to provide him with any
briefs, documents, deposition transcripts, correspondence or written argument regarding
the discovery issue in dispute.

5.

Following a review of the written submission and any discovery requests and responses at
issue, the Court will determine whether additional steps, such as a telephonic conference
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with the Court or additional briefing, are necessary for the Court to resolve the discovery
dispute. In some cases, the Court may determine that no additional input is needed and
issue an order based only on the letters and relevant discovery requests and objections
submitted by the parties. Any such order will reflect the input received from the parties
and will allow the parties to docket the materials submitted if they wish to preserve the
record on particular points.

6.

Before contacting Chambers to notify the Court of a discovery dispute, counsel for parties
to any discovery dispute are required by Rule 37(a)(1) of the Federal Rules of Civil
Procedure and Local Rule 37(a) to have conferred with one another and to have made a
good faith effort to eliminate or reduce the area of controversy. All discovery issues should
be resolved in good faith by counsel in accordance with their obligations to the Court under
the Federal Rules of Civil Procedure and the District’s Local Rules. Judge Shea interprets
the good faith conference obligation of the Federal Rules and Local Rules to require
counsel to confer either face-to-face or by telephone; exchanges of correspondence are not
sufficient in and of themselves to satisfy counsel’s good faith conference obligations. All
written submissions describing the nature of the dispute submitted to the Court must
include a written certification by each party that they have complied with their good
faith conference obligations under the Federal Rules and Local Rules.

7.

Before notifying the Court of a discovery dispute, counsel for all parties to a discovery
dispute must also agree upon the issues that they intend to raise with Judge Shea and inform
Chambers of those issues at the time of the notification. If the parties cannot in good faith
agree upon the issues to be raised with Judge Shea, they shall so notify Chambers.

8.

Should the Court schedule a telephonic conference to discuss the dispute with the parties,
counsel should agree in advance on which party will be responsible for initiating the
telephonic discovery conference. Counsel should not contact Judge Shea’s Chambers until
counsel for all parties to the discovery dispute are on the telephone. Failure to participate
in a scheduled telephonic discovery conference may result in the imposition of sanctions.

9.

Should the Court issue any order following the telephonic conference, the party against
whom the order is directed shall comply within 14 days pursuant to Local Rule 37(d),
unless otherwise ordered by the Court.

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III.

JOINT TRIAL MEMORANDUM INSTRUCTIONS

The parties shall confer and shall jointly prepare and submit for the Court’s approval a
Joint Trial Memorandum in compliance with the District’s Standing Order Regarding Trial
Memoranda in Civil Cases as modified in these instructions. In addition to filing an original of
the Joint Trial Memorandum with the Clerk of the Court, counsel shall also provide
Chambers with a courtesy copy of the Joint Trial Memorandum and all attachments, both
in hard copy and as an electronic file compatible with Microsoft Word, sent to Chambers via
e-mail or saved on a CD-ROM. The Joint Trial Memorandum is intended to be a jointly prepared
document. Therefore, these Instructions are not satisfied by stapling together trial memoranda
prepared separately by counsel for each party.

The Joint Trial Memorandum shall contain the following information:

1.

TRIAL COUNSEL: Counsel shall list the names, addresses, telephone numbers, fax
numbers and e-mail addresses of the attorney(s) who will try the case. Trial counsel must
attend the Final Pretrial Conference, unless excused in advance by the Court.

2.

JURISDICTION: Counsel shall set forth the basis for federal jurisdiction.

3.

JURY/NON-JURY: Counsel shall state whether the case is to be tried to a jury or to the
Court.

4.

LENGTH OF TRIAL: Counsel shall set forth a realistic estimate of trial days required
based on the expected length of testimony for each witness on both direct and crossexamination.

5.

FURTHER PROCEEDINGS:
proceedings prior to trial.

6.

NATURE OF CASE: Counsel for both parties shall separately state the nature of each
cause of action and the relief sought. If appropriate, state the nature of any cross-claims,
counterclaims and/or affirmative defenses.

7.

TRIAL BY MAGISTRATE JUDGE: Counsel shall indicate whether they have agreed to
a trial by a Magistrate Judge and if so, file signed consent forms providing for any appeal
to be heard directly by the Court of Appeals.

8.

EVIDENCE: Prior to preparing and submitting the Joint Trial Memorandum,
counsel are required to exchange lists of proposed witnesses, exhibits and deposition
transcripts to enable counsel for each party to state in the Joint Trial Memorandum
whether they object to any proposed witness, exhibit or transcript.

Specify, with reasons, the necessity of any further

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a. Witnesses: Counsel shall set forth the names and addresses of each witness to be
called at trial, including a brief summary of the anticipated testimony and the
expected duration of the witness’s testimony. Counsel shall indicate which
witnesses are likely to testify and which witnesses will be called only if the need
arises. For each expert witness, set forth the opinion to be expressed, a brief
summary of the basis of the opinion and a list of the materials on which the witness
intends to rely. Also state the area of the witness’s expertise and attach a copy of
the expert’s report and a curriculum vitae, if available.
Any objection to the admissibility of the testimony of any witness must be stated
in this section of the Joint Trial Memorandum, along with a brief statement of the
grounds and authority supporting the objection as well as a brief statement from the
proponent of the witness regarding admissibility.

NOTE: Witnesses not included in this list shall not be permitted to testify at
trial, except for good cause shown. All listed witnesses will be permitted to
testify unless there is an explicit objection stated to the witness’s testimony.

b. Exhibits: Counsel shall attach a list of all exhibits—including a brief description of
their contents—to be offered at trial, except for any exhibits used solely for
impeachment. The parties shall mark all exhibits numerically with exhibit tags
(which will be provided by the Clerk’s Office upon request) starting with Plaintiff’s
Exhibit “1” and Defendant’s Exhibit “501.” Where there are multiple plaintiffs or
defendants, counsel shall coordinate exhibit identification to ensure that exhibit
numbers are not duplicated. Copies of the actual exhibits shall be exchanged no
later than seven (7) days prior to submission of the Joint Trial Memorandum.
Copies of all exhibits as to which there may be objections must be brought to
the Final Pretrial Conference. Three (3) days before trial, counsel shall deliver
to Judge Shea copies of all exhibits placed in a three-ring binder with a copy of the
exhibit list at the front of the binder and with each exhibit separately tabbed, and
shall deliver to the Courtroom Deputy the original set of exhibits along with an
exhibit list.
Any objection to the admissibility of any exhibit must be stated in this section of
the Joint Trial Memorandum, along with a brief statement of the grounds and
authority supporting the objection as well as a brief statement from the proponent
of the exhibit regarding admissibility.
NOTE: Exhibits not exchanged seven (7) days prior to submission of the Joint
Trial Memorandum and exhibits not listed will not be admitted at trial, except
for good cause shown and except for any exhibits admitted solely for
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impeachment. All listed exhibits shall be deemed admissible unless there is an
explicit objection stated to the exhibit.
c. Deposition Testimony: Counsel shall list each witness who is expected to testify by
deposition at trial. Such list will include a designation by page references of the
deposition transcript which each party proposes to read into evidence. Crossdesignations shall be listed as provided by Fed. R. Civ. P. 32(a)(6). The list shall
include all objections to deposition designations. A marked-up version of the
deposition transcript should also be submitted along with the Joint Trial
Memorandum (blue for plaintiff; red for defendant).
NOTE: Objections not stated in the Joint Trial Memorandum will be deemed
waived, except for good cause shown.

9.

STIPULATIONS AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW: Counsel for both parties shall confer in an effort to enter into a written stipulation
of uncontroverted facts and into an agreed statement of the contested issues of fact and law.
a. Bench Trial: Each party shall submit specific proposed findings of fact necessary
to support a judgment in that party’s favor, identifying each witness and/or exhibit
as to each factual conclusion. Each party shall also submit proposed conclusions of
law, citing the legal authority that supports each claim or defense.
Except by order of the Court, post-trial briefing will not be permitted. Any pretrial memoranda which any party(ies) wish the Court to consider must be filed no
later than seven (7) days prior to the date trial commences.

b. Jury Trial: The stipulation of uncontroverted facts will be read to the jury, and no
evidence shall be presented on the uncontested facts.
i. Proposed Voir Dire Questions: Counsel shall attach a list of questions to be
submitted to the jury panel as part of the Joint Trial Memoranda, with any
supplements no later than 24 hours before jury selection.
ii. Proposed Jury Instructions: The parties shall meet and confer for the
purposes of preparing and filing jury instructions. Counsel shall attach
requests for jury instructions, citing relevant legal authority for each
proposed instruction. Counsel are not required to submit general jury
instructions which, for example, instruct the jury on its role, evidence in
general, witness credibility, etc. If any party objects to another party’s
proposed instruction, counsel must briefly state the nature of the objection
and the legal authority supporting the objection.
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iii. Proposed Verdict Form: Counsel shall meet and confer for the purposes of
preparing and filing a proposed verdict form and/or special interrogatories.
Counsel shall attach (and also include on the diskette) proposed verdict
forms and any proposed special interrogatories. If the parties are unable to
agree as to the appropriateness of a proposed form, counsel for the objecting
party must state the basis for the objection and provide an alternative
proposal (on a diskette).
iv. Brief Description of Case and Parties: Counsel shall meet and confer and
agree upon a brief description of the case, the issues and the parties that the
Court can read to proposed jurors at the outset of jury selection.
10.

ANTICIPATED EVIDENTIARY PROBLEMS: Counsel shall list any evidentiary
problems anticipated by any party and shall attach to the Joint Trial Memorandum motions
in limine along with memoranda of law concerning any anticipated evidentiary problems,
including any issues relating to the admissibility of expert testimony under Fed. R. Evid.
702–05 and the Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), line
of cases. All memoranda in opposition to any motion in limine must be filed within seven
(7) days of the date on which the Joint Trial Memorandum is filed and in no event later
than three (3) days before the Final Pretrial Conference. Reply briefs shall not be filed in
connection with motions in limine without obtaining permission in advance from the Court.

11.

COURTROOM TECHNOLOGY: Counsel shall specify what, if any, technology they
intend to use during trial. For instance, if counsel intend to use an overhead projector,
transparencies, Elmo, or to connect a laptop to display exhibits or other documents, they
must specify as much in the Joint Trial Memorandum. Counsel may coordinate with the
Courtroom Deputy to set up any technology in advance of trial.

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