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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1
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: (718) 613-2268
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.)
2
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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1
was a motion to dismiss filed by the defendants and
2
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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4
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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1
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.
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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
6
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7
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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1
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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2
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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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2
13
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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1
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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1
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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1
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?
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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
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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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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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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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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
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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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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?
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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.
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served, you can just say you'd like to file a motion to
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dismiss; you don't have to come back in.
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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
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sense I think to reduce everybody's costs.
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issue of the service cost is going to cost the opposing
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counsel more than what is being claimed.
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there is some way -- I did speak to Mr. LaBonte to try to
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resolve that mutually.
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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
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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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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.
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Thank you all
If we can do these things by phone, I will.
I
5
appreciate that the case got transferred to Brooklyn and
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that it's probably an inconvenience for everybody.
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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,
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