Abbott Laboratories et al v. Adelphia Supply USA et al
Filing
1633
MEMORANDUM AND ORDER re #1614 : For these reasons, the Court concludes that the damages inquest against the H&H Defendants shall be held before the trial of the non-defaulting defendants. The parties are directed to file briefing and relevant documentary evidence regarding the proper calculation and amount of damages to be entered against the H&H Defendants, in accordance with the following schedule: Abbott shall file its papers by January 29, 2021; the H&H Defendants shall file any opposition by March 1, 2021; Abbots reply, if any, shall be filed by March 15, 2020. If, after reviewing the papers, the Court determines that argument or an evidentiary hearing is warranted, one may be scheduled at a later date. Ordered by Judge Carol Bagley Amon on 12/23/2020. (Fernandez, Erica)
Case 1:15-cv-05826-CBA-LB Document 1633 Filed 12/23/20 Page 1 of 13 PageID #: 35181
Clerk’s Office
Filed Date: 12/23/2020
12:36 PM
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------x
ABBOTT LABORATORIES, ABBOTT
DIABETES CARE INC., and ABBOTT
DIABETES CARE SALES CORPORATION,
Plaintiffs,
-against-
U.S. DISTRICT COURT
EASTERN DISTRICT OF
NEW YORK
BROOKLYN OFFICE
NOT FOR PUBLICATION
MEMORANDUM & ORDER
15-CV-5826 (CBA) (LB)
ADELPHIA SUPPLY USA, et al.,
Defendants.
----------------------------------------------------------x
AMON, United States District Judge:
Abbott1 initiated this action in October 2015, asserting claims against multiple defendants,
including the H&H Defendants2, in connection with the unlawful sale of Abbott’s international
FreeStyle test strips in the United States. (ECF Docket Entry (“D.E.”) # 1.) Following extensive
discovery, Abbott moved for summary judgment against the defendants, seeking, inter alia,
summary judgment on its claims against H&H under the Lanham Act for trademark infringement
and willfulness. (D.E. # 1414.) The Court granted Abbott’s motion for summary judgment as to
liability, finding H&H liable for willful infringement as a matter of law. (D.E. # 1563.) The Court
also found all defendants (save for a few individual defendants) liable at summary judgment for
Lanham Act trademark infringement, although it determined that damages could not be resolved
on summary judgment.
During the same time in which Abbott was preparing its motion for summary judgment,
Abbott commenced a related action, Abbott Laboratories et al. v. H&H Wholesale Services Inc. et
al., No. 17-cv-3095 (E.D.N.Y.), against the H&H Defendants for their sale of international
1
Plaintiffs Abbott Laboratories, Abbott Diabetes Care Inc., and Abbott Diabetes Care Sales Corp. (collectively,
“Abbott”).
2
H&H Wholesale Services, Inc. (“H&H”), Howard Goldman, and Lori Goldman (collectively, the “H&H
Defendants”).
1
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FreeStyle strips repacked in counterfeit U.S. packaging. In that action, Abbott conducted a Courtauthorized search of H&H’s premises, which resulted in the seizure of their email server. Review
of the contents of that server revealed that the H&H Defendants had engaged in a calculated pattern
of discovery misconduct in this action that amounted to a fraud on the Court. (D.E. # 1613 at 4–
6.)
Abbott moved for case-ending sanctions against the H&H Defendants in the instant action,
and the motion was referred to Magistrate Judge Bloom for report and recommendation (“R&R”).
See Jan. 14, 2019 Order Referring Mot. On May 2, 2019, Judge Bloom issued an R&R
recommending that the Court grant Abbott’s motion and enter a default judgment against the H&H
Defendants. (D.E. # 1545.) After receiving objections to the R&R and Abbott’s reply to those
objections, the Court adopted Judge Bloom’s R&R in its entirety and entered a default judgment
against the H&H Defendants. (D.E. # 1613.) Among the Court’s findings were that “the H&H
Defendants—including the Goldmans—had a duty to comply with the Court’s orders, and each
willfully and grossly failed to do so.” Id. at 15; see also id. at 16, 19 (finding the Goldmans
“individually liable for the willful discovery fraud and cover-up they undertook personally or that
was undertaken by their agents in their name”); id. at 25 (finding that “the H&H Defendants’
withholding of … documents constituted willful discovery misconduct” regardless of the reason
they were withheld).
Given the entry of default, on March 24, 2020, the Court ordered briefing on the issue of
when the damages inquest under Federal Rule of Civil Procedure 55(b)(2) against the H&H
Defendants should occur in relation to trial against the remaining non-defaulting defendants.
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Abbott, the H&H Defendants, the G&S Defendants3 and the S&S4 Defendants have all submitted
briefing on the issue. The H&H Defendants argue that the damages inquest should either (a) come
after the non-defaulting defendants’ trial; or (b) be consolidated with the non-defaulting
defendants’ trial. (D.E. # 1614.) Abbott and the S&S Defendants argue that the damages inquest
as to the H&H Defendants should be held prior to the trial for the non-defaulting defendants. (D.E.
## 1619, 1622.) The G&S Defendants express no view on the sequencing, arguing only argue that
the inquest and trial should not be consolidated. (D.E. # 1618.)
A more developed statement of the facts, issues, and procedural history of this complex
action is provided in the Court’s September 30, 2019 Memorandum and Order. Familiarity with
the matter is here presumed, and the Court recounts only those facts necessary to adjudicate the
present issue. For the reasons provided below, the damages inquest shall be held prior to the trial
for the non-defaulting defendants.
DISCUSSION
The decision of whether to enter a final judgment against some but fewer than all of the
parties in an action is left to the sound discretion of the district court. Bleecker v. Zetian Sys., Inc.,
No. 12 CIV. 2151 DLC, 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013). The standard is
governed by Rule 54(b), which provides in relevant part:
[W]hen multiple parties are involved, the court may direct the entry of a final
judgment as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.
3
Defendants Able Wholesalers of Tennessee LLC, Kevin Singer, Paul Leight, Massalah Trading U.S.A., Ltd. Saad
(Sam) Haddad, Matrix Distributors, Inc. Christopher Benevent, Seth Grumet, Drugplace, Inc., Neil Feig, Save Rite
Medical.com LLC, Mark Kaplan, Shie Greenfeld, Dream Cereal, Inc. and Douglas Hauck are represented by Goodman
& Saperstein LLC, the (“G&S Defendants”).
4
Value Wholesaler, Inc., Adelphia Supply USA, and Primed Pharmaceuticals LLC are represented by Stern & Schurin
LLP (the S&S Defendants”).
3
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Fed. R. Civ. P. 54(b).
In making such a determination, “there are no fixed criteria.” Bleecker, 2013 WL 5951162,
at *6 (S.D.N.Y. Nov. 1, 2013) (internal quotation marks omitted).
However, courts have
interpreted the Supreme Court’s nineteenth-century decision in Frow v. De La Vega, 82 U.S. (15
Wall.) 552, 21 L.Ed. 60 (1872) as informing the propriety—at least in certain circumstances—of
a court’s entering final judgment against a defaulting defendant while answering defendants
remain in the action. See id. Accordingly, the Court must determine whether holding a damages
inquest and entering final judgment against the H&H Defendants prior to the trial of the nondefaulting defendants is consistent with both Rule 54 and Frow.
A. Frow and Joint Liability
The H&H Defendants primarily argue that a damages inquest conducted prior to the trial
of the answering defendants is premature and impermissible in light of Frow. Abbott contends
that Frow’s holding is not controlling here, and that the rationale underlying Frow is not implicated
by the facts of the present case. The Court concludes that Frow is not controlling here and does
not necessarily prohibit the damages inquest and entry of a final judgment under Rule 54.
In Frow, the plaintiff filed a bill in equity to determine title to a parcel of real property.
The pleading alleged that fourteen defendants engaged in a joint conspiracy to defraud plaintiff of
the property. When one of these defendants failed to plead, a default judgment was entered against
him. The answering defendants proceeded to trial and prevailed on the merits. The Supreme Court
vacated the default judgment, observing that it would be “absurd[]” to have “one decree of the
court sustaining the charge of joint fraud committed by the defendants; and another decree
disaffirming the said charge. . . .” Id. at 554.
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Accordingly, courts have determined that where Frow applies, notice of defendant’s default
may be docketed, “but entry of final judgment should be deferred pending disposition as to the
non-defaulting defendants, so that the case can be resolved by one final, consistent judgment.”
Mitchell v. Lyons Prof'l Servs., Inc., 727 F. Supp. 2d 116, 119 (E.D.N.Y. 2010). Exactly when
Frow applies and what it stands for, however, is not entirely clear from the opinion itself. See
Farzetta v. Turner & Newall, Ltd., 797 F.2d 151, 154 n.2 (3d Cir. 1986) (noting Frow’s
“ambiguity”). Courts interpreting Frow “have treated this holding narrowly,” Rivera v. Mattingly,
No. 06-CIV-7077(LAP)(HBP), 2017 WL 7050323, at *6 (S.D.N.Y. June 23, 2017), finding the
holding applies to defendants who are jointly liable. See Lemache v. Tunnel Taxi Mgmt., LLC,
354 F. Supp. 3d 149, 152 (E.D.N.Y. 2019) (“[Frow] explained that in a multi-defendant case where
defendants are alleged to be jointly liable, entering a default judgment runs the risk of inconsistent
judgments.”) (emphasis original); Mitchell, 727 F. Supp. 2d at 119 (noting Frow’s “holding has
been narrowed to cases involving true joint liability”) (internal quotation marks omitted); see also
10A Charles Alan Wright, et al., Federal Practice and Procedure: Civil 3D § 2690 (2001) (Frow
stands for the proposition that “when one of several defendants who is alleged to be jointly liable
defaults, judgment should not be entered against that defendant until the matter has been
adjudicated with regard to all defendants, or all defendants have defaulted.”).
Similarly, the Second Circuit “has cast doubt on the vitality of Frow in light of the
subsequent enactment of Federal Rule of Civil Procedure 54(b), which authorizes entry of default
judgment against fewer than all parties as long as there is no just reason for delay.” Consumer
Fin. Prot. Bureau v. NDG Fin. Corp., No. 15-CIV-5211(CMR)(WL), 2018 WL 1605067, at *6
(S.D.N.Y. Mar. 12, 2018) (citing Int’l Controls Corp. v. Vesco, 535 F.2d 742, 746 n.4 (2d Cir.
1976)). The Second Circuit observed that “it is most unlikely that Frow retains any force
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subsequent to the adoption of Rule 54(b). In any event, at most, Frow controls in situations where
the liability of one defendant necessarily depends upon the liability of the others.” Int’l Controls
Corp, 535 F.2d at 746 n.4. “In contrast, if the liability sought to be imposed is joint and several
rather than joint, most courts have held that the rationale of Frow does not directly apply, since it
would not be inconsistent to hold some but not all defendants liable.” Rivera, 2017 WL 7050323,
at *7. See also Lemache, 354 F. Supp. 3d at 153 (explaining that, unlike a theory of joint and
several liability, it is “impossible” under a theory of joint liability “for one defendant to be liable
unless all other defendants are also liable”); In re Uranium Antitrust Litig., 617 F.2d 1248, 1257–
58 (7th Cir. 1980) (same).
Frow is not directly controlling in this action. As an initial matter, Frow concerned jointly
liable defendants, some of which were exonerated on the merits. Here, both the defaulting and
non-defaulting defendants have already (with minimal exception) been found liable for trademark
infringement at summary judgment; the non-defaulting defendants are proceeding to trial on the
question of damages. Moreover, the H&H Defendants were placed in default in light of their
unique actions. Accordingly, there is no risk of inconsistent judgments as to liability on these
claims. Moreover, with regard to the Lanham Act claims for trademark infringement against both
the defaulting and the non-defaulting defendants, Abbott has alleged a theory of joint and several
liability. See In re Uranium Antitrust Litig., 617 F.2d 1248, 1257–58 (7th Cir. 1980) (“The result
in Frow was clearly mandated by the Court’s desire to avoid logically inconsistent adjudications
as to liability. However, when different results as to different parties are not logically inconsistent
or contradictory, the rationale for the Frow rule is lacking. Such is this case involving joint and
several liability.”). Abbott does not argue that any one defendant is automatically liable for the
entirety of the damages sought by Abbott regardless of which boxes the defendant actually
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trafficked. Rather, each defendant is liable for the unlawfully diverted boxes that it trafficked, and
Abbott is seeking varying damages amounts against different defendants based on that varying
number of boxes. Cf. Frow, 82 U.S. (15 Wall.) 552 (regarding a single res in controversy).
B. Frow and Joint and Several Liability
Abbott has also, however, maintained that defendants are jointly and severally liable for
trademark infringement damages attributable to those boxes for which multiple defendants were
in the same distribution chain. H&H Defendants agree. (See D.E. # 1614 at 23 (“[W]e do accept
that H&H, like any other individual defendant in this case, is jointly and severally liable for the
damages specifically allocated to its particular distribution chain.”).) H&H Defendants point to
this doctrine as raising the specter of inconsistent damages awards as between such defendants
and, under the principles guiding Frow and its progeny, precluding entry of a final judgment prior
to the damage determination at trial for the non-defaulting defendants.
Although “[t]he Frow holding has been narrowed to cases involving true joint liability,”
courts have, in the absence of countervailing justifications, nonetheless “also consistently delayed
damages inquests even where a plaintiff seeks joint and several liability in order to avoid the
problems of dealing with inconsistent damage determinations.”
Harvey v. Home Savers
Consulting Corp., No. 07-CV-2645 (JG), 2008 WL 724152, at *1 (E.D.N.Y. Mar. 17, 2008)
(internal citations and quotation marks omitted) (collecting cases); Gesualdi v. MMK Trucking,
Inc., No. CV 09-1484 SLT AKT, 2010 WL 3619569, at *5 (E.D.N.Y. Aug. 24, 2010), report and
recommendation adopted, No. 09 CV 1484 SLT AKT, 2010 WL 3619719 (E.D.N.Y. Sept. 9, 2010)
(“Even though[] the defaulting and non-defaulting Defendants may be held jointly and severally
liable for the same damages, deferring consideration of damages with respect to the defendants in
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default until after Plaintiffs’ contested claims are litigated will minimize the risk of inconsistent
awards.”) (internal brackets and quotation marks omitted).
These cases are, however, distinguishable in that the risk of an inconsistent damages award
arose there because the plaintiff was seeking a single, unitary damages amount against multiple
defendants. Where a unitary damages figure is sought against defaulting and non-defaulting
defendants alike, there is a risk that logically inconsistent awards be entered. As stated above,
Abbott is here seeking different and unique damages amounts against different defendants based
on the boxes that particular defendant sold.
On the other hand, the H&H Defendants rightly observe that the defendants in this action
did not operate in neat silos, and that the distribution chains involving multiple defendants that
trafficked the same infringing box(es) are interweaving. Moreover, at summary judgment, several
defendants argued that Abbott could not prove that the defendants’ infringement displaced sales
of non-infringing boxes and caused actual damages. The Court declined to grant summary
judgment as to damages, determining that the jury must decide the extent to which Abbott suffered
any actual damages. The H&H Defendants now argue that Abbott’s theory of the case places them
at the center of a complicated distribution-chain web, leaving H&H jointly and severally liable
with multiple non-defaulting defendants for an outsize portion of the total number of infringing
boxes that Abbott alleges the H&H Defendants trafficked in. They argue that it would be at the
heart of Frow’s concern were the Court to impose damages on the H&H Defendants at an inquest
for trafficking in infringing boxes where the jury determined, vis-à-vis a non-defaulting defendant
in the same distribution chain as H&H, that those same boxes did not cause actual damages at the
point of sale. They argue that the presence of this common issue between the defendants as to
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whether an infringing box caused actual damages renders them and non-defaulting defendants in
the same distribution chain “similarly situated.”
Courts have observed that “decisions in this Circuit subsequent to Vesco support extension
of Frow to cases in which defendants are merely ‘similarly situated.’” Diarama Trading Co. Inc.
v. J. Walter Thompson U.S.A., Inc., No. 01-cv-2950 (DAB), 2002 WL 31545845, at *4 (S.D.N.Y.
Nov. 13, 2002) (quoting Farberware v. Groben, 1991 WL 123964, at *3 n. 4 (S.D.N.Y.1991)).
The “similarly situated” principle has been applied in cases where liability of the answering
defendants was yet undetermined, and the defendants’ liability was inextricably connected.
Diarama Trading Co. Inc, 2002 WL 31545845, at *4 (declining to enter default judgment for fear
of prejudicing appearing defendants, who all claimed that their rights in the contested trademark
derive from the defaulting defendant). Here, all of the defaulting and non-defaulting defendants
(with minimal exception) have all already been found liable for trademark infringement.
Moreover, it is not clear to the Court at this time which defendants may be jointly and severally
liable with which other defendants, and for what boxes. Finally, the non-defaulting defendants
may present different defenses and theories to the jury that are accepted by the jury but are
inapplicable to the H&H Defendants.
The H&H Defendants have failed to show that “liability of one defendant necessarily
depends upon the liability of others”, Int’l Controls Corp, 535 F.2d at 746 n.4. And, even assuming
arguendo that there is a common issue between the defendants within the purview of the “similarly
situated” doctrine which presents a possible risk of inconsistent awards, the Court weighs this
against the countervailing factors and determines there is no just reason for delay in entering final
judgment against the H&H Defendants. See Shanghai Automation Instrument Co. v. Kuei, 194 F.
Supp. 2d 995, 1009 (N.D. Cal. 2001) (“To hold that the mere possibility of inconsistent judgment
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divests the Court of its discretion under Rule 54(b) would imply that whenever there are multiple
defendants who raise similar defenses, the court could never enter a default judgment until
conclusion of the entire case regardless of the substantial prejudice likely to be suffered by the
plaintiff as a result of the delay. Such a rule would contravene the purpose of the 1961 amendment
to Rule 54(b).”).
C. Balancing the Equities
In Int’l Gemmological Inst., Inc. v. Rafaeil, the court observed that while some decisions
delayed a damages inquest over concerns of inconsistent awards, that interest in “judicial
economy” must yield to the “interests of the parties in proceeding with the inquest.” No. 05-cv2395 JGK JCF, 2005 WL 3880222, at *2 (S.D.N.Y. Aug. 17, 2005), report and recommendation
adopted, 2006 WL 739822 (S.D.N.Y. Mar. 21, 2006). Specifically, the parties there would have
been prejudiced by delay because plaintiff could not begin to collect until final judgment was
entered, and the “defaulting defendants would have ample opportunity to spend, secrete, or
otherwise protect their ill-gotten gains . . . [which would] permanently prevent the plaintiff from
being made whole.” Id. at *3. Additionally, the court determined that this would also prejudice
the non-defaulting defendants, since if “defaulting parties are able to insulate themselves from
judgment during the continuing litigation, the non-defaulting parties could be forced to satisfy the
entire damage award without the possibility of contribution from the defaulting defendants.” Id.;
see also Bleecker v. Zetian Sys., Inc., No. 12-cv-2151 DLC, 2013 WL 5951162, at *7 (S.D.N.Y.
Nov. 1, 2013) (declining to delay entry of final judgment against defaulting defendant because,
inter alia, plaintiff plead that defaulting defendant against whom final judgment was sought was
“seeking to avoid liability” by transferring out its assets); Lemache, 354 F. Supp. 3d at 154
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(“Courts in this Circuit have routinely declined to apply Frow in cases asserting joint and several
liability, and proceeded to decide the default judgment motion while other parties are litigating.”).
Abbott asserts that they will be prejudiced by a delay of final judgment against the H&H
Defendants because there is a serious risk that those defendants will dissipate their assets prior to
final judgment and collection. Citing to declarations filed under seal, Abbott avers that the H&H
Defendants’ former counsel stated early in this litigation that his firm had taken steps to render the
H&H Defendants judgment proof. (See D.E. # 1619 at 26.) Abbott further avers that during this
litigation, the H&H Defendants “took additional steps to move to protect their assets from
collection.” (Id.) The non-defaulting defendants argue that they would be similarly prejudiced by
granting the H&H Defendants more time to insulate themselves from collection. The H&H
Defendants have not responded to this allegation in their briefing on this damages-sequencing
issue. The Court finds this risk is credible and substantial. Additionally, the Court takes notice of
the ongoing global pandemic and the substantial delay in jury trials that it has caused. See e.g.,
E.D.N.Y. Administrative Order 2020-26 (postponing all jury selection and trials until further
notice). Considering that criminal matters will likely be prioritized over civil matters when jury
trials resume, the Court expects a substantial delay before a jury trial may be conducted for the
non-defaulting defendants.
The H&H Defendants do, however, argue that a separate damages inquest prior to trial
would be inefficient. As an initial matter, the Court determines that any risk of judicial inefficiency
is here outweighed by the risk of prejudice to the other parties. Int’l Gemmological Inst., 2005
WL 3880222, at *2. Moreover, the H&H Defendants overstate the risk of inefficiency. Their
assertion that the proceedings at an inquest and trial would be entirely duplicative is unfounded.
Although there may be some overlap in the evidence presented during the different stages, the
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facts and findings relevant to Abbott’s damages claim against the H&H Defendants are unique to
them. And for those defendants that go to trial, the jury will be making findings unique to the
damages liability of those defendants appearing before it, based on their conduct and arguments
relating to defenses applicable to their circumstances but not others. In contrast, delaying the
inquest until after a jury trial would not reduce the scope of the inquest, because the H&H
Defendants’ liability for Lanham Act damages, aiding-and-abetting-fraud damages, reputational
harm, and attorneys’ fees are all specific to them. Finally, the decision to hold the inquest first
may well prove to be a more efficient use of judicial resources if it helps to facilitate a settlement
that obviates trial: if Abbott is successful at inquest against the H&H Defendants in establishing
damages, the non-defaulting defendants may use that figure as a guide in evaluating their own
exposure; if Abbott is not successful in proving a significant quantum of damages, that will inform
Abbott that it may fare better if it tempers its demands in its future negotiations with the nondefaulting defendants.5
The H&H Defendants were placed in default as a result of their serious fraud upon the
Court. Delaying the inquest and entry of final judgment could frustrate the Court’s interest in
vindicating its sanctions and prejudice the other parties to this litigation.
Weighing these
prejudices against the countervailing factors, the Court determines that there is no just reason for
delay, and that the damages inquest and entry of final judgment should precede the trial of the nondefaulting defendants. Cf. Diarama Trading Co. Inc., 2002 WL 31545845, at *4 (holding that
“Plaintiff fail[ed] to convince the Court that good cause exists for the Court to exercise its authority
under Rule 54(b) to enter final judgment against [defaulting defendant]” because, inter alia,
5
Finally, the Court declines the H&H Defendants’ invitation to consolidate the inquest with the jury trial. In addition
to the reasons provided in text, the Court concludes that consolidation would introduce undue prejudice to the parties
and tax the jury’s focus in what is already a complex case.
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“Plaintiff has made no showing of prejudice flowing from” a decision holding the motion for final
judgment in abeyance pending resolution of the merits against answering defendants); United
States v. First Funds LLC, No. 10 Civ. 6540(JGK)(MHD), 2012 WL 1415327, at *3 (S.D.N.Y.
Apr. 20, 2012) (citing Int’l Gemmological for the proposition that “one argument for separate
damage assessments … is that a plaintiff should be able to pursue prompt enforcement of judgment
against a defaulted defendant,” although finding that inapplicable to the case before it “because
there is no prospect of such an asset pursuit”).
CONCLUSION
For these reasons, the Court concludes that the damages inquest against the H&H
Defendants shall be held before the trial of the non-defaulting defendants.
The parties are directed to file briefing and relevant documentary evidence regarding the
proper calculation and amount of damages to be entered against the H&H Defendants, in
accordance with the following schedule: Abbott shall file its papers by January 29, 2021; the H&H
Defendants shall file any opposition by March 1, 2021; Abbot’s reply, if any, shall be filed by
March 15, 2020. If, after reviewing the papers, the Court determines that argument or an
evidentiary hearing is warranted, one may be scheduled at a later date.
SO ORDERED.
Dated: December 23, 2020
Brooklyn, New York
/s/ Carol Bagley Amon
Carol Bagley Amon
United States District Judge
13
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