Wood et al v. General Motors Corporation et al

Filing 74

ORDER denying 73 Motion for Reconsideration. Because Plaintiffs' motion is untimely and because they have failed to identify any controlling law or facts that the Court overlooked in its underlying decision, Plaintiffs' motion is DENIED. Ordered by Judge Pamela K. Chen on 3/11/2014. (Attachments: # 1 11/12/13 Status Conference Transcript) (Galeotti, Matthew)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - -X
WOOD, ET AL.,
: 08-CV-5224(PKC)
Plaintiffs,
:
:
:
v.
: United States Courthouse
: Brooklyn, New York
:
GENERAL MOTORS
:
CORPORATIONS, ET AL.,
:
Defendants.
: Tuesday, November 12, 2013
: 3:00 p.m.
:
:
- - - - - - - - - - - - - - -X
TRANSCRIPT OF CIVIL CAUSE FOR STATUS CONFERENCE
BEFORE THE HONORABLE PAMELA K. CHEN
UNITED STATES DISTRICT COURT JUDGE
A P P E A R A N C E S:
For the Plaintiffs:
For the Defendants:

Court Reporter:

[!FIRM2]
Attorneys for the Defendant [!DEFENDANT NAME]
[!ADDRESS-A2]
[!ADDRESS-B2]
[!CITY2], [!STATE2] [!ZIP2]
BY: [!ATTORNEY2], ESQ.

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter
Telephone: [phone]

Proceedings recorded by computerized stenography.
produced by Computer-Aided Transcription.

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

Transcript

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(In open court.)

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THE COURTROOM DEPUTY:

2

Civil cause for status

3

conference, Docket No. 8-5224, Wood, et al., versus General

4

Motors Corporation, et al.

5

Will the parties please state their appearances for

6

the record starting with the plaintiffs.

7

speak into the microphone loudly and clearly.

8

MR. WOOD:

9

MS. MALESTER:

Please make sure to

Tzvee Wood.

10

THE COURT:

11

MR. LABONTE:

Andrea Malester.

Okay.

Good afternoon to you both.

Steve LaBonte, counsel for

12

defendants Hempstead Lincoln-Mercury Motors and John

13

Billard.

14

MR. RUBIN:

Peter M. Rubin for Karp.

15

THE COURT:

Okay.

16

We are here today, as I'm sure both parties know,

Good afternoon to you both.

17

to talk about the status of this case and what should be

18

happening next to move this case along.

19

parties are aware, this case has been languishing -- that's

20

the wrong word -- certainly been pending for the last five

21

years or so.

22

the case was filed in 2008 by Mr. Wood and Ms. Mal regarding

23

what they allege is a defective vehicle that they purchased

24

from KARP automotive and that was manufactured by other

25

defendants who are charged as parties in this case.

As I'm sure the

So to briefly recap the most relevant history,

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

There

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was a motion to dismiss filed by the defendants and

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Magistrate Judge Tomlinson issued a report and

3

recommendation that was adopted by Judge Bianco, who

4

previously presided over this case.

5

recommendation was filed in August 2010.

6

bit ago.

7

And the report and
So that was a fair

After Judge Bianco adopted, endorsed *a report and

8

recommendation which, among other things dismissed -- or

9

recommended dismissal but ended up resulting in the

10

dismissal of the two federal claims, the RICO claim and also

11

the Magnuson-Moss claim and also directed the plaintiffs or

12

actually granted leave for the plaintiffs to amend, and the

13

plaintiffs did amend, albeit untimely, but that was accepted

14

by the Court and submitted or filed about a hundred-page

15

complaint realleging the same exact claims as far as I could

16

tell, both their state and their federal claims.

17

presume attempting to make changes to comply with or to

18

respond to or address the deficiencies noted in Judge

19

Tomlinson's decision or opinion.

But I

20

Now, that brings us to today.

The amended

21

complaint was filed in January of 2011.

22

are in November 2013.

23

months ago, and then I issued the order that the parties

24

receive requesting I think I have two occasions status

25

reports about what was going on with the case and why it

We obviously now

The case was handed off to me several

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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wasn't moving forward.

2

So I have some questions for the parties.

I

3

think, first of all, I want to note one other submission by

4

the defendants, Karp Automotive, which was submitted on

5

January 7th, 2011, soon after the filing of the

6

amended -- actually, just before the filing of the amended

7

complaint, which seems odd because it discusses how the

8

amended complaint does not really make any changes that

9

address the concerns about the federal claims in this case.

10

Although maybe somebody can explain the timing to me.

11

now that I'm looking at it, your letter about the amended

12

complaint, Mr. Rubin, preceded the actual filing.

13

may have been a glitch because of the pro ses

14

being -- plaintiffs being pro se.

15

But

But that

So I guess my question to the defendants are

16

whether or not you've analyzed the amended complaint and

17

determined if it really corrected or remedied the

18

deficiencies that were the basis for dismissal of the

19

original complaint and whether or not there actually are any

20

substantive changes or changes that are going to fix those

21

issues.

22

MR. LABONTE:

We don't believe that there are any

23

substantive changes to the claims that have been made by the

24

plaintiff in the proposed amended complaint.

25

we believe it really does is just amend to add several

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

The only thing

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additional defendants to the matter.

2

corrects or remedies any of the issues that were brought up

3

by Magistrate Tomlinson in her report and recommendations.

4
5
6

THE COURT:

I don't believe it

What is your response to that,

Mr. Wood, or Ms. Mal about that?
MR. WOOD:

So I think one of the key issues here

7

was that GM went bankrupt and dropped out of the lawsuit so

8

any time to join the dealerships with GM disappeared.

9

potentially if any of the other parties are the correct

So

10

parties and can be joined with the dealerships, then the

11

premise that there's no jurisdiction may not hold up if the

12

parties are joined.

13

just look at the content of the amended complaint and say,

14

well, it's similar, therefore it doesn't change anything.

15

But if any of those parties should be present and aren't,

16

then may be allowed joinder with the dealerships. *

17
18
19

And so it's a little bit difficult to

THE COURT:

Are you saying because these are

foreign corporations?
MR. WOOD:

No, because the -- although obviously

20

the dealerships are New York entities and General Motors was

21

not and some of those other entities are not, if they are

22

effectively on the same side of the dispute, then you can

23

have joinder.

24
25

THE COURT:

Right.

I guess let me break down my

question then.

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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Did you alter your complaint in any way to be more

2

specific with respect to the civil RICO and Magnuson-Moss

3

claims, which I think were 11 and 12 or somewhere there

4

about, did you amend them in any way to address the issues

5

that were raised in Judge Bianco or Judge Tomlinsons'

6

decision?

7

MR. WOOD:

I haven't looked at both of them in

8

some time, but I'm pretty sure that at the time there was

9

some effort made to address the defects in more than just

10

adding parties.

11

changes, but I'm not -- there would have been some changes.

12

It may be minor and it may be subtle

THE COURT:

Right.

I think the fundamental

13

problem, and this is just based on my casual perusal or

14

preliminary perusal, was that Judge Tomlinson found that you

15

had failed to comply with this particularity pleading

16

requirement.

17

many defendants named committed particular acts and that

18

that was a deficiency in the pleading and that prompted

19

dismissal.

20

For example, you didn't specify which of the

It appears to me that the allegations in your 12th

21

claim, which is the civil RICO, are the same or that at

22

least on their face -- on the face of them, they appear

23

again to have the same problem, which is that they allege in

24

some general way that every defendant committed these

25

various acts that violate the civil RICO statute.

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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So I think that it's not apparent to me that there

2

were any changes made that get around the original problems

3

that prompted a dismissal.

4

from you on how you changed it or corrected that problem.

5

MR. WOOD:

So I'm looking for some guidance

Unfortunately, I don't have a copy of

6

that in front of me so I can't pinpoint you to an exact

7

place.

8

details added.

9

is so long so if you insert a few line paragraph here or

But I do remember that there were some additional
It may not be apparent because the document

10

there, it may not jump out at you, but there should be

11

details added about, you know, who had the dealership or who

12

at General Motors was doing what.

13

THE COURT:

So let me ask the defendants.

Did you

14

plan to file another motion to dismiss because one of the

15

questions today is the parties are either going to proceed

16

to discovery and move this case along or the defendants are

17

going to file a motion to dismiss the amended complaint.

18
19
20

MR. LABONTE:

We would file another motion to

dismiss the amended complaint, Your Honor.
THE COURT:

Okay.

So why don't we set up a

21

schedule for that before we even set up a schedule for

22

discovery because, depending on the outcome, discovery may

23

or may not be warranted.

24

perhaps the defendants were wondering if Judge Bianco was

25

going to do something sua sponte.

And I appreciate the fact that

I did read something in

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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the procedural history that suggests that maybe he was going

2

to take a look at the amended complaint.

3

Does that ring a bell?

4

MR. LABONTE:

The amended complaint had been

5

filed.

6

complaint, but in the meantime the plaintiff was directed to

7

provide more information about the new defendants that were

8

being added.

9

seen the plaintiff offer the Court or us any additional

10

He indicated that he was going to review the amended

information.

11

And that was January of 2012, and I have not

And it's almost two years now.

THE COURT:

It seems appropriate to restart this

12

process.

We should begin with the motion to dismiss.

And

13

if, as you say, there are really no differences, then

14

obviously much of your effort should be directed at

15

explaining why this new complaint does nothing differently

16

or more or better or more legally sufficient than the last

17

one.

18

decision and anything else you want to add once you've gone

19

through all hundred pages of it.

20

MR. LABONTE:

21

THE COURT:

So perhaps in some way piggyback off the prior

Right.
What would be a reasonable amount of

22

time to give you?

I'm not going to rush you on this given

23

how long this case has been pending.

24

purposes, I would prefer that the final briefing not be done

25

until sometime in late March or early April so if that helps

For our own scheduling

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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you at all.

2
3

Final briefing.

MR. LABONTE:

9

So work backwards from there.

So final briefing late March, early

April?

4

THE COURT:

Yes.

So you can even go into April

5

and then working backwards.

6

briefing in late January or something like that.

7

you're looking at dates, I'm just reminding the parties

8

that, as you know, the way it works is we bundle the motion

9

so that the defendants will serve their motion on you, the

10

plaintiffs, and then you'll serve your opposition on them.

11

And then the defendants will serve their reply.

12

a reply date will everyone file their separate submissions

13

to the Court.

14
15

MR. LABONTE:

THE COURT:

17

MR. LABONTE

19
20
21

So while

And only on

Can we have a submission of the

motion to dismiss on the plaintiffs on February 18th?

16

18

You might want to start your

That sounds fine.
And then their opposition will be

due -THE COURT:
opposition?

How much time would you like your

A month?

MR. WOOD:

Yeah, a month should be fine.

I mean,

22

if there's any slight detail of the date, then we'll work it

23

out, I guess, between each other.

24

MR. LABONTE:

25

THE COURT:

March 18th for the opposition.
And both sides, if you need more time,

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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obviously confer with each other and if you can agree upon

2

an extension, just write me a letter.

So March 18th.

3

And then how much time for your response?

4

MR. LABONTE:

5

Do three weeks for a response, Your

Honor.

6

THE COURT:

Sure.

7

MR. LABONTE

8

THE COURT:

9

One other thing.

So April 8th.
Okay.

Good.
I know you have a pending

10

motion, Mr. Wood and Ms. Malester, about service cost.

11

don't you when you file your opposition make whatever motion

12

you want to about that; in other words, cite whatever cases

13

you want to in support of your request to get the service

14

cost paid for by -- was it both defendants or one defendant?

15
16
17

MR. WOOD:

Why

Well, it's a combination of Hempstead

Lincoln-Mercury and John Billard.
THE COURT:

Okay.

Go ahead and put that in there.

18

And then obviously, Mr. Rubin, I guess you'll respond in

19

your reply to the service cost.

20

MR. LABONTE:

21

THE COURT:

22

I don't want to set up a separate briefing

23

schedule with it.

24

That would be me.
Oh, so sorry.

You're Hempstead.

let us know.

25

If you need a couple extra pages, just

MR. LABONTE:

I'll tab to my reply, your Honor.

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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THE COURT:

11

That's what I was saying makes sense.

2

But if you need more than ten pages to do both your reply

3

and your response to the service cost issue, just ask for

4

that in abeyance of submitting it.

5

Mr. Wood.

6

your opposition to address the service cost question, just

7

ask for that and that should be fine.

8

will be a very complicated argument.

9

11

If you need a few more pages then your 25 for

MR. WOOD:

10

And the same for you,

THE COURT:

I can't anticipate it

No.
Okay.

Does either side have anything

you need to raise with me?

12

MR. RUBIN:

One thing if I may, Your Honor.

13

THE COURT:

Yes.

14

MR. RUBIN

The last conference we had with Judge

15

Bianco, plaintiff pro se was -- it was indicated that they

16

should address the Court as to how the Saab bankruptcy would

17

affect this particular case because there was a stay with

18

the General Motor bankruptcy and Judge Bianco was concerned

19

if the Saab bankruptcy had a similar stay which it does,

20

then the Court would have no jurisdiction to proceed and yet

21

we're still here six years later costing our clients lots of

22

money.

23

still back here again --

And it's a concern to my client as to why we're

24

THE COURT:

Okay.

25

MR. RUBIN:

-- when certain things have not been

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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addressed as directed by the Court.
THE COURT:

So let me make sure I understood.

3

the effect of the GM bankruptcy and any stay, was that

4

Was

addressed before?

5

MR. RUBIN:

That's been addressed, and I believe

6

plaintiff pro se had asked the Court on several occasions

7

for additional time to do research and address to see how

8

they could sue the new GM rather than the old GM.

9

been no theory forthcoming on that and then with the amended

There has

10

complaint, the difference was that multinational

11

corporations were added to my recollection and Mr. LaBonte's

12

recollection, I think Your Honor's correct in her assessment

13

that there was no substantive changes whatsoever in the

14

entire complaint.

15

THE COURT:

Okay.

So do you understand the

16

question, Mr. Wood, that's being posed by Mr. LaBonte about

17

the Saab bankruptcy matter?

18

MR. WOOD:

There are two issues.

One was how new

19

GM dovetails into this and the second was about Saab's

20

bankruptcy staying the matter.

21

mean, not having the exact name in front of me -- but the

22

new entity separate from General Motors isn't actually named

23

in any current documents.

24

named in the amended complaint, but they have never been

25

formally brought in so I don't know if that would affect the

Saab -- well, new Saab -- I

I mean, they might have been

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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matter.
As to the new GM, at the time of the amended

3

complaint, nobody knew how claims were going to be handled.

4

The most recent case only came down in February or March of

5

last year, and it isn't entirely clear that that case is

6

really intended to apply to claims like this as opposed to

7

what it was primarily dealing with was people who acquired

8

new vehicles with warranties at some time after the

9

bankruptcy was filed but before the closing date of the sale

10

to new GM and so there's some gray area for those customers.

11

How that then translates to this isn't exactly

12

clear, but new GM wasn't willing to voluntarily appear as a

13

defendant here.

14

THE COURT:

15

MR. WOOD:

New GM wasn't what?
New GM was not voluntarily willing to

16

appear as a defendant here and wanted to use their shield of

17

bankruptcy to keep them out of this matter.

18

THE COURT:

Can I ask you a really basic question

19

since I don't know the history as well as you all.

20

these parties been served, all the defendants?

21

MR. WOOD:

22

THE COURT:

23

MR. WOOD:

Have all

Well, in which -For the amended complaint.
Okay.

So for the initial complaint,

24

everybody was served with the exception of the two employees

25

because at the time GM would not provide -- they don't work

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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in an office.

They are field employees.

2

THE COURT:

3

MR. WOOD:

4

Okay.

So General Motors was served.

General Motors was served.

They would

not provide a business office location for those employees.

5
6

14

THE COURT:

Okay.

But then now in your amended

complaint you have Saab for the first time, correct?

7

MR. WOOD:

8

THE COURT:

9

MR. WOOD:

Right.
Were they ever served?
The amended complaint is noted as

10

proposed.

11

that's where things perhaps stalled in the service.

12

I don't know if it was formally accepted so

THE COURT:

Oh, I think that -- correct me if I'm

13

wrong -- I think the judge at some point said even though

14

filed late that he was accepting the complaint as being

15

filed.

16

MR. RUBIN:

That's correct, Your Honor.

However,

17

Your Honor is also correct in her assessment that we had

18

seen no filings of service on any of the parties and one of

19

the main cruxes of Judge Tomlinson's report was that there

20

was no federal jurisdiction.

21

outside of our local dealerships in the new complaint, then

22

to ask us to even go to the trouble of making a motion to

23

dismiss when the plaintiff has yet to show how this court

24

acquires venue or jurisdiction to hear this matter is

25

perplexing.

And if no one has been served

I think the Court being new to this probably

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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did not read the plethora of documents that have been

2

submitted to Judge Bianco, not that I complain in this

3

court.

4

One of the things that we said to Judge Bianco,

5

these are very sophisticated pro se plaintiffs.

This is not

6

their first, second or third litigation involving both the

7

federal courts or state courts.

8

approximately a dozen lawsuits that they have started, and

9

we have a letter from them threatening us if the suit does

We've identified

10

not succeed and if this Court dismisses the suit, then they

11

are going to sue us in state court unless we want to make an

12

offer to them.

13

So to us being the two plaintiffs -- two

14

defendants who are in the case, we consider this somewhat of

15

an extortionate position to take and now the Court is

16

directing us once again to have to submit briefs which are

17

going to cost our clients thousands of dollars more for

18

something which should not be here at this particular point.

19

THE COURT:

The only part I disagree with you on

20

is that the way things were left when Judge Bianco was on

21

the case was that he granted your motion to dismiss and

22

finding lack of diversity but also dismissing the two

23

federal claims.

24
25

Now, he also allowed the plaintiffs to amend.
the question before me is whether or not those federal

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

And

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claims, I accept that maybe diversity hasn't been met here

2

and you can make that argument by saying there is no diverse

3

parties now that have been served, but there still are those

4

federal claims that in theory have been amended.

5

unfortunately since the plaintiffs were permitted to amend

6

them, I do have to take a look at that and ask the parties

7

then if you want to move to dismiss them.

8
9

And

Whether it will cost you thousands of dollars, I
have no idea.

It seems to me a simpler exercise the second

10

time around, but obviously I'm not the one writing the

11

brief.

12

that there's substantive difference and it may just be a

13

matter of some paralegal comparing the paragraphs and saying

14

nothing has been changed in terms of satisfying the pleading

15

requirements and that could be a fairly simple submission.

But like I said, from my perusal it doesn't appear

16

That's what I'm saying on that.

Because

17

unfortunately they could have jurisdiction based on these

18

federal causes of action.

19

those two.

20
21

MR. RUBIN:

Forget about diversity, but on

And would the Court allow us to apply

for sanctions?

22

THE COURT:

You can apply for sanctions,

23

absolutely.

Whether I'll grant them or not is a question.

24

You have mentioned some things historically that I'm not

25

privy to.

I only have before me what's in this case.

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

It's

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not apparent that that this particular case is overtly

2

frivolous.

3

that they are alleging.

4

that's true or not.

5

in federal court based on diversity or RICO claims, it would

6

not be the first time that plaintiffs have done that, even

7

those with lawyers.

8
9

I mean, certainly there's a defect in the car
I have no basis to know whether

Whether they should have been brought

So you can make your sanctions motion.

It will

cost you a little bit of money, though, of course, but

10

that's up to you.

I mean, I think the fact that these

11

plaintiffs may be repeat filers in different contexts, maybe

12

that -- it's certainly something I was not aware of until

13

you said that just now.

14

from doing that, but I can't tell you how that will come

15

out.

So I'm not going to prevent you

16

MR. RUBIN:

Thank you, Your Honor.

17

THE COURT:

Let's address the service issue for a

18

moment because I think what the plaintiffs were saying is

19

that there was some uncertainty and for the moment I'll

20

accept the fact that they are pro ses who are not lawyers.

21

Maybe they are very experienced pro ses, but are you saying,

22

Mr. Wood, that you weren't sure after that entry by or that

23

order binding by Judge Bianco that he accepted the complaint

24

that you weren't then supposed to serve the complaint -- the

25

amended complaint I'm referring to?

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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MR. WOOD:

2

THE COURT:

3

18

We don't get the ECF notices -That's not true.

You get mailed

copies.

4

MR. WOOD:

The court is generally good about

5

mailing copies, but I don't recall a letter that explicitly

6

said that that proposed complaint was formally accepted and

7

that could then be served.

8

new GM got ahold of a copy perhaps from one of the dealers

9

trying to invoke indemnity and they were concerned about

I know that, you know, somehow

10

being brought in.

11

accepting it and saying, okay, go ahead and serve them.

12

But I don't recall the court formally

THE COURT:

All right.

I'm looking at the docket

13

sheet right now.

14

18th saying he would accept the late-filed amended

15

complaint.

16

mailing.

17

Sorry.

18
19

So Judge Bianco issued an order on January

And what I'm looking for now is an indication of
There was, though -- let's see.

No, no, no.

These entries for some reason are out of order.
It's not apparent to me that you were mailed a

copy of that particular order.

20

(Brief pause.)

21

THE COURT:

Hang on one second.

I just want to double-check with my

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deputy to make sure that I'm reading this docket correctly.

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If you look at the docket, unfortunately, some of the orders

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are entered nonchronologically so, for example, the date he

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issued his ECF order accepting the complaint is January

Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

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18th, but then right after that is an order that's dated

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12-13-2011 so a month earlier.

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So it's a little chaotic, but it doesn't

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appear -- it appears that you may not have received a copy

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of the order indicating that he had accepted the late filing

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of the amended complaint.

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said, this is the difficulty because you're not lawyers, it

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would have behooved you obviously to contact the court to

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find out what the status of your case was to move it along.

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But unfortunately that being

What I'll do is this:

Since we have a fairly long

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time frame in which these particular defendants can file

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their motions to dismiss, I'll give you until the end of

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December to serve these other plaintiffs -- I mean,

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defendants, rather, and then once they get the complaint,

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we'll notify them that if they wanted to file motions to

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dismiss, they can do it as well by the February date that's

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been set.

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It won't affect -MR. RUBIN:

Judge, this is somewhat disingenuous

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this argument that he never received a copy that the court

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accepted the amended complaint because he's had other

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filings since that time and that would have to presuppose

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that the case was going forward.

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And for him to tell this Court that he had no clue

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somewhat, I mean, I'm just astonished that after six years,

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my client is still involved in this.

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Official Court Reporter

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MR. LABONTE:

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There were several requests by the

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plaintiffs during the last two years for additional time to

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look up documents and to find things.

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THE COURT:

Well, it's interesting.

It's hard for

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me to tell since the substance of all these requests is not

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clear, but it seemed to me that after the filing of the

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amended complaint there wasn't a filing of an answer or

8

motion to dismiss, right, so that wasn't prompted because

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everyone seemed to be waiting for Judge Bianco to maybe look

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at the amended complaint, right?

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MR. Rubin:

Correct.

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THE COURT:

So I'm just saying -- I'm not actually

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assigning any fault to anybody, but it seemed to me the case

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fell into a bit of a slumber at that point.

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know if, you know, the plaintiff was operating under the

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misapprehension that Judge Bianco hadn't decided if it was

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going to be accepted or not because he did suggest he was

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going to review it to see if there were any differences.

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These other requests, perhaps you can tell me.

And I don't

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There were requests for telephone conferences.

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phone conferences after the filing of the amended complaint

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that the parties remember and some discussion about the

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complaint actually being filed?

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MR. RUBIN:

Were there

I vaguely -- and perhaps plaintiff can

correct me -- I vaguely recall one suit -- one conference

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Official Court Reporter

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dealing with the status of asking for additional time by the

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plaintiff to try to resolve the issue between the old GM and

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the new GM and the problem with the Saab bankruptcy, but I

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cannot put a time frame on that, Judge.

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THE COURT:

I'm operating at a bit of a deficit

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here.

Here's my view on it:

It doesn't necessarily

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prejudice the current defendants if there are other

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defendants who are going to potentially file a motion to

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dismiss or defend themselves in this action, because

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unfortunately for you, you're still in the position of

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having to submit another motion to dismiss.

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So the fact that he may end up serving some other

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parties, the plaintiffs may end up serving other parties,

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doesn't affect your posture one way or the other.

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not be in the case anymore and who knows if these other

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international groups are going to have to -- international

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corporations are going to have to address the same issues

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that you do, but you may have some allies sitting with you

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at the table or nothing at the end of the day, but it's not

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necessarily going to affect your position one way or the

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other, it wouldn't seem to me.

You may

Tell me if I'm wrong.

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Do you disagree with that?

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MR. RUBIN:

I do, Your Honor, respectfully.

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THE COURT:

How so?

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MR. RUBIN:

Because the fact that these other

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corporations were named in order to try to override the

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decision of Magistrate Judge Tomlinson that there was no

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diversity of citizenship and thus no federal jurisdiction

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also based upon the other two things which Your Honor

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mentioned.

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Rather than setting up a motion schedule, give plaintiff

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time to serve the international corporations.

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appear, then we can have a conference and if they don't

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appear, then we can go back to a new motion schedule to

Perhaps may I make this suggestion to the Court?

If they

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dismiss based upon the original opinions and ratification of

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the opinion by the judges in Central Islip.

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THE COURT:

That's fine with me.

If you're more

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comfortable with that, I will give you until the end of

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December to serve these other plaintiffs and then we'll see

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where we are after that.

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are served you wish to file a motion, then submit a letter

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requesting either a conference and if we have other parties

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there, then we'll have the conference with everyone who has

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been brought into the case at that time.

And then if after those parties

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MR. RUBIN:

Thank you, Your Honor.

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THE COURT:

Yes.

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So December 31st is your deadline, plaintiffs, for

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serving these other parties.

So we're clear, though, I

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think it includes every defendant save these two, although,

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I don't know.

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Official Court Reporter

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Did you previously serve Dave Nicholson*?

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MR. WOOD:

The two individual names are the

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employees of old General Motors and there was no -- the

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Court didn't have jurisdiction over all GM for a long enough

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period of time before they went bankrupt to actually force

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them to divulge where these people work.

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MR. LABONTE:

And Your Honor, not that I want to

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represent General Motors in any way, but I believe these

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people are being sued in their capacity as an employee

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anyway so they should be dismissed from the matter at this

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point.

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THE COURT:

It's sort of a nonissue.

They haven't

been served is the bottom line?

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MR. WOOD:

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THE COURT:

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MR. WOOD:

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THE COURT:

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MR. WOOD:

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THE COURT:

Dan Kiperd has not?
Correct.
How about John Longo?
I don't know if he was in the original

or only the amended.

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Correct.

Well, he's not in the original as far

21

as I could tell.

But bottom line is I guess you serve

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everybody that you have not previously served with the

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amended complaint with the original complaint ,serve them

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with the amended complaint.

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necessary.

And do so by December 31st, if

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Official Court Reporter

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MR. RUBIN:

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So if I'm correct then, we're doing

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nothing pending plaintiff's opportunity to effectuate

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service and perhaps then get this done, we will have a

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status conference?

5

THE COURT:

Yes.

We'll either have a status

6

conference or if you want to file a letter saying you want

7

to file your motion to dismiss.

8

served, you can just say you'd like to file a motion to

9

dismiss; you don't have to come back in.

10

Let's suppose nobody gets

Just set forth the

briefing schedule.

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MR. RUBIN:

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MR. WOOD:

Thank you, Your Honor.
Just one other thing since it makes

13

sense I think to reduce everybody's costs.

14

issue of the service cost is going to cost the opposing

15

counsel more than what is being claimed.

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there is some way -- I did speak to Mr. LaBonte to try to

17

resolve that mutually.

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19

I think the

I don't know if

Nothing came of it.

I don't know if there's some other way to do it
rather than wasting time on motion papers.

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THE COURT:

That's really up to you guys.

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MR. LABONTE:

If he wants to submit to me a copy

22

of the waiver form to make sure it was done properly, then

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I'll take it under consideration.

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copy of the waiver forms and everything that he did to try

25

to submit it.

But I'm going to need a

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Official Court Reporter

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THE COURT:

Okay.

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However you want to resolve

2

that, but otherwise, you can write about it.

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for coming in.

4

Thank you all

If we can do these things by phone, I will.

I

5

appreciate that the case got transferred to Brooklyn and

6

that it's probably an inconvenience for everybody.

7

there are things we can resolve by phone, we're perfectly

8

fine with accommodating that.

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everyone.

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(Time noted:

All right.

3:42 p.m.)

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Lisa Schwam, RPR, CRR, RMR
Official Court Reporter

So if

Thank you,