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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ROUGH DRAFT - COURT'S EYES ONLY 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 ROUGH DRAFT - COURT'S EYES ONLY 1 (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 ROUGH DRAFT - COURT'S EYES ONLY 3 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 ROUGH DRAFT - COURT'S EYES ONLY 1 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 ROUGH DRAFT - COURT'S EYES ONLY 5 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. Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 1 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 ROUGH DRAFT - COURT'S EYES ONLY 1 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 ROUGH DRAFT - COURT'S EYES ONLY 8 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 ROUGH DRAFT - COURT'S EYES ONLY 1 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 ROUGH DRAFT - COURT'S EYES ONLY 10 1 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 ROUGH DRAFT - COURT'S EYES ONLY 1 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 ROUGH DRAFT - COURT'S EYES ONLY 1 2 12 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 ROUGH DRAFT - COURT'S EYES ONLY 1 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 ROUGH DRAFT - COURT'S EYES ONLY 1 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 ROUGH DRAFT - COURT'S EYES ONLY 15 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 ROUGH DRAFT - COURT'S EYES ONLY 16 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 ROUGH DRAFT - COURT'S EYES ONLY 17 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? Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 1 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 22 deputy to make sure that I'm reading this docket correctly. 23 If you look at the docket, unfortunately, some of the orders 24 are entered nonchronologically so, for example, the date he 25 issued his ECF order accepting the complaint is January Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 1 18th, but then right after that is an order that's dated 2 19 12-13-2011 so a month earlier. 3 So it's a little chaotic, but it doesn't 4 appear -- it appears that you may not have received a copy 5 of the order indicating that he had accepted the late filing 6 of the amended complaint. 7 said, this is the difficulty because you're not lawyers, it 8 would have behooved you obviously to contact the court to 9 find out what the status of your case was to move it along. 10 But unfortunately that being What I'll do is this: Since we have a fairly long 11 time frame in which these particular defendants can file 12 their motions to dismiss, I'll give you until the end of 13 December to serve these other plaintiffs -- I mean, 14 defendants, rather, and then once they get the complaint, 15 we'll notify them that if they wanted to file motions to 16 dismiss, they can do it as well by the February date that's 17 been set. 18 It won't affect -MR. RUBIN: Judge, this is somewhat disingenuous 19 this argument that he never received a copy that the court 20 accepted the amended complaint because he's had other 21 filings since that time and that would have to presuppose 22 that the case was going forward. 23 And for him to tell this Court that he had no clue 24 somewhat, I mean, I'm just astonished that after six years, 25 my client is still involved in this. Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 1 MR. LABONTE: 20 There were several requests by the 2 plaintiffs during the last two years for additional time to 3 look up documents and to find things. 4 THE COURT: Well, it's interesting. It's hard for 5 me to tell since the substance of all these requests is not 6 clear, but it seemed to me that after the filing of the 7 amended complaint there wasn't a filing of an answer or 8 motion to dismiss, right, so that wasn't prompted because 9 everyone seemed to be waiting for Judge Bianco to maybe look 10 at the amended complaint, right? 11 MR. Rubin: Correct. 12 THE COURT: So I'm just saying -- I'm not actually 13 assigning any fault to anybody, but it seemed to me the case 14 fell into a bit of a slumber at that point. 15 know if, you know, the plaintiff was operating under the 16 misapprehension that Judge Bianco hadn't decided if it was 17 going to be accepted or not because he did suggest he was 18 going to review it to see if there were any differences. 19 These other requests, perhaps you can tell me. And I don't 20 There were requests for telephone conferences. 21 phone conferences after the filing of the amended complaint 22 that the parties remember and some discussion about the 23 complaint actually being filed? 24 25 MR. RUBIN: Were there I vaguely -- and perhaps plaintiff can correct me -- I vaguely recall one suit -- one conference Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 21 1 dealing with the status of asking for additional time by the 2 plaintiff to try to resolve the issue between the old GM and 3 the new GM and the problem with the Saab bankruptcy, but I 4 cannot put a time frame on that, Judge. 5 THE COURT: I'm operating at a bit of a deficit 6 here. Here's my view on it: It doesn't necessarily 7 prejudice the current defendants if there are other 8 defendants who are going to potentially file a motion to 9 dismiss or defend themselves in this action, because 10 unfortunately for you, you're still in the position of 11 having to submit another motion to dismiss. 12 So the fact that he may end up serving some other 13 parties, the plaintiffs may end up serving other parties, 14 doesn't affect your posture one way or the other. 15 not be in the case anymore and who knows if these other 16 international groups are going to have to -- international 17 corporations are going to have to address the same issues 18 that you do, but you may have some allies sitting with you 19 at the table or nothing at the end of the day, but it's not 20 necessarily going to affect your position one way or the 21 other, it wouldn't seem to me. You may Tell me if I'm wrong. 22 Do you disagree with that? 23 MR. RUBIN: I do, Your Honor, respectfully. 24 THE COURT: How so? 25 MR. RUBIN: Because the fact that these other Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 1 corporations were named in order to try to override the 2 decision of Magistrate Judge Tomlinson that there was no 3 diversity of citizenship and thus no federal jurisdiction 4 also based upon the other two things which Your Honor 5 mentioned. 6 Rather than setting up a motion schedule, give plaintiff 7 time to serve the international corporations. 8 appear, then we can have a conference and if they don't 9 22 appear, then we can go back to a new motion schedule to Perhaps may I make this suggestion to the Court? If they 10 dismiss based upon the original opinions and ratification of 11 the opinion by the judges in Central Islip. 12 THE COURT: That's fine with me. If you're more 13 comfortable with that, I will give you until the end of 14 December to serve these other plaintiffs and then we'll see 15 where we are after that. 16 are served you wish to file a motion, then submit a letter 17 requesting either a conference and if we have other parties 18 there, then we'll have the conference with everyone who has 19 been brought into the case at that time. And then if after those parties 20 MR. RUBIN: Thank you, Your Honor. 21 THE COURT: Yes. 22 So December 31st is your deadline, plaintiffs, for 23 serving these other parties. So we're clear, though, I 24 think it includes every defendant save these two, although, 25 I don't know. Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 23 1 Did you previously serve Dave Nicholson*? 2 MR. WOOD: The two individual names are the 3 employees of old General Motors and there was no -- the 4 Court didn't have jurisdiction over all GM for a long enough 5 period of time before they went bankrupt to actually force 6 them to divulge where these people work. 7 MR. LABONTE: And Your Honor, not that I want to 8 represent General Motors in any way, but I believe these 9 people are being sued in their capacity as an employee 10 anyway so they should be dismissed from the matter at this 11 point. 12 13 THE COURT: It's sort of a nonissue. They haven't been served is the bottom line? 14 MR. WOOD: 15 THE COURT: 16 MR. WOOD: 17 THE COURT: 18 MR. WOOD: 19 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. 20 Correct. Well, he's not in the original as far 21 as I could tell. But bottom line is I guess you serve 22 everybody that you have not previously served with the 23 amended complaint with the original complaint ,serve them 24 with the amended complaint. 25 necessary. And do so by December 31st, if Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 1 MR. RUBIN: 24 So if I'm correct then, we're doing 2 nothing pending plaintiff's opportunity to effectuate 3 service and perhaps then get this done, we will have a 4 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. 11 MR. RUBIN: 12 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. 16 there is some way -- I did speak to Mr. LaBonte to try to 17 resolve that mutually. 18 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. 20 THE COURT: That's really up to you guys. 21 MR. LABONTE: If he wants to submit to me a copy 22 of the waiver form to make sure it was done properly, then 23 I'll take it under consideration. 24 copy of the waiver forms and everything that he did to try 25 to submit it. But I'm going to need a Lisa Schwam, RPR, CRR, RMR Official Court Reporter ROUGH DRAFT - COURT'S EYES ONLY 1 THE COURT: Okay. 25 However you want to resolve 2 that, but otherwise, you can write about it. 3 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. 9 everyone. 10 (Time noted: All right. 3:42 p.m.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lisa Schwam, RPR, CRR, RMR Official Court Reporter So if Thank you,

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