Abraham et al v. Entrepreneur Media, Inc.

Filing 8

AFFIDAVIT/DECLARATION in Opposition re 4 MOTION to Dismiss and Request for Continuance filed by A.W. Management Services, Inc., Ilan Abraham, Allen Akers, Mary L. Akers, Jimmy Aleman, Nieves Aleman, Marcus Alonso, Lucia Alva, Jose Alvarez, John Appelt, Darren Aquino, John Aquino, Susan Asaro, Stephen Belluardo, Nicole Benton, John Bierl, Michele Bierl, William Bierl, Liron Binshtoch, James Bombolevicz, Bernadatte Burns, David Burns, Kevin Butler, Mario Capuano, Dominick Casazza, Frank Caserta, Jerry Castaldo, Craig Colluzzi, James Cooke, Joseph Cravotta, Patricia Cravotta, Louis D'Errico, Vincent D'Onofrio, Maria Delgado, Kappa Farid, James Ferraiolo, Rosie Ferraiolo, Rossi Ferraiolo, Stanley Ferraiolo, Kathleen Ferrante, Nina Fitzmaurice, Joseph Galletti, Edgardo Acosta Garcia, Ildefonso Acosta Garcia, Christopher Gravagna, Lauren Gunsel, Janine Haufi, Ioannis Karagiannis, Luis Lara-Rivas, Ricky Lee, Shyvonne Lopez, Thomas P. Lucey, Paul J. Lukasik, Russell Martin, Joseph Martino, Thomas Maughan, Debroah McGlone-Baluch, Robert McKenna, Daliana Badillo Mercado, Lucas Moeller, Ray Moeller, Benvendo Neves, William K. Ng, Alfred Pappalardi, Kalpesh Patel, Ramash B. Pitti, Gennaro Prudente, Richard Racioppi, Jr, Kathleen Ray, Marjorie Rodriguez, Maryanne Rotella, Larry Samuels, John Scherillo, Gila Schiowitz, Robert Schwabb, Kathleen Smith, Joseph Stemberger, Kathryn Sulek, Michael Sulek, Randy Tejada, Avi Trope, Hillil Trope, Arthur Tyler, Mark Tyler, Angel Vasquez, Konstantinos Vassiliou, Adam Wysocki, Jan Wysocki. (Attachments: # 1 Affirmation in Opposition part 2) (Bloom, Eliot)

there has not been a discovery schedule ordered by the Court providing Plaintiff the opportunity

to commence discovery demands. As noted in Crystalline H20, Inc. v. Orminiski, "there is

a

critical distinction . . . between cases where a litigant opposing a motion for summary judgment
requests a stay of that motion to conduct additional discclvery and cases where that same litigant

opposes a motion for summary judgment on the ground that

commence discovery with respect

it is entitled to an opportunity

to

to [the non-movant's] clairns . . . ." 105 F.Supp.zd 3,6-7

(N.D.N.Y. 2000). The instant matter is not a case in which Plaintiffs, as non-movants, have been
dilatory in conducting discovery, seek to conduct additional discovery late in the day, or request
discovery on matters extraneous

to their complaint.

Instead, Plaintiffs simply request a

continuance under Rule 56(f) so that they may discover facts that

will establish the existence of

genuine issues of material fact.

Accordingly, Plaintiffs herein must be affbrded an opportunitv to depose the publisher
and./or other executives of Defendant magazine that had first-hand involvernent

in analyzing

and

compiling the Hot 100 list so that Plaintiffs may establish that Defendant was" inter alia, reckless
and entertained serious doubts as to the truth of the Agape pubiication. Additionally, Plaintiffs
must have an opportunity to review documentation and correspondence maintained by Defendant
pertaining to its involvement with Agape prior to the publication of the Hot 100 feature.

Plaintiffs expect that discovery will allow them to, at minimum, demonstrate that:

1)

Defendant failed to take appropriate action before publication; 2) Defendant profited financially

as a direct result

of including Agape in its Hot

100 list; 3) Defendant was aware prior to

publication of the Hot 100 article that Agape had numerous outstanding/pending complaints
against

it; 4) Defendant was aware prior to publication of the Hot 100 article of Agape's weak

financial stature, but chose to ignore and otherwise disregard this knowledge; and 5) Defendant

had serious doubts as to the truth and veracity of the information provided by Agape. These
avenues of discovery

will

assist Plaintiffs in demonstrating that Defendant acted with reckless

disregard for the rights ofothers.

Plaintiffs are cognizant of and appreciate the practical utility of summary judgmentnamely to assist in securing "the just, speedy and inexpensive determination of every action."
Fed.R.Civ.P.

1. However,

at this juncture such a procedural device

is

premature in this action,

tbr "only in the rarest of cases may summary judgment be granted against a plaintiff who has not
been afforded the opportunity to conduct discovery." Hellstrom v. (1.5. Dep't

of Veterans Affairs.

201 F.3d 94,91 (2d Cir. 2000). There appears to be little to no apparent prejudice to Defendant

in allowing Plaintiffb an opportunity to conduct discovery prior to being called upon to oppose

a

sunmary judgment motion. Instead, any potential judicial efficiency and economy that may
result from an accelerated determination is greatly outweighed by the resulting prejudice and
harm to Plaintiffs.'

Concr-usroN

In light of the foregoing, Plaintiffs respectfully

request that Defendant's Motion to

Dismiss all counts of Plaintiffs' complaint pursuant to Federal Rule of Civil Frocedue 12(b)(6)
be denied in all respects. Plaintiffs further respectfully request that the Court grant Plaintiffs a
continuance under Federal Rule of Civil Procedure

56(f

so that they may conduct discovery

in

this matter and present facts essential to justi$ their opposition.

'

C7. Abercrombie

& Fitch Stores, Inc. v. American Eagle Outfitters, [nc.,280 F.3d 6i9, 527 (6th Cir.

("lf the non-movant makes a proper and timely showing of a need for discovery, the district courl's
entry of summary judgment without permitting him to conduct any discovery at all rvill constitute an
abuse of discretion.").
2002)

Dated:

Mineola, New York
July 28, 2009

Yours, etc.

CES OF ELIOT F. BLOOM, P.C.

Esq. (9423)
By: Eliot F.
Attorneyfor Plaintffi
114 Old Country Road, Suite 308
Mineola, New York 11501
[phone]

TINITED STATE,S DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------X
ILAN ABRAHAM.

E,T

Index

No.:

09-2096

AL.
District Judge

Plaintiffs,

Joanna Seybert
-agamst-

AFFIDAVIT OF
SERVICE

ENTREPRENEUR MEDIA, INC.,
Defendant.

STATE OF NEW

YORK

)

i rr.,

COUNTY OF N,dSSAU )

MICHAEL WERNER, being duly sworn, deposes and

1.

I am not

a parly to

says:

this action, am over eighteen years

of

age and reside

in Suffolk

Counfy, New York.

2.

On July 28, 2009, Deponent served the within Affidavit in Opposition to

Defendant's Motion to Dismiss and Request for Continuance Under Rule 56(f) on the below
named party by CM/ECF,

wlich will

send electronic notification

of such filing to all registered

participants, as well as via overnight courier:

TO:

Steven B. Pokotilow, Esq.

STROOCK & STROOCK & LAVAN" LLP
lS0Maidenl-ane

NewYork,NewYork 10038
MIC}IAEL WERNER

t

Elr0T
Bt00M
llotary Public, State of New

Yoil - : i
' , ,!
.i
0ualilied in Suffolk Countv
Commission Expires Nov. 3rd,-2007
i10.02815087341

Notary Public

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------X

Index

No.:

09-2096

ILAN ABRAHAM. ET AL.
District Judge

Plaintiffs,

Joanna Seybert

-againstMagistrate Judge
Michael Orenstein

ENTREPRENEUR MEDIA, INC.,
Defendant.

AF'FIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND
REQUEST FOR CONTINUANCE UNDER RULE 56(f)

ELIOT F. BLOOM, ESQ.
Attorneyfor Plaintffi
114 Old Country Road, Ste. 308
Mineola,NewYork 11501
[phone]

(sl6)739-3202 (Fax)
NOTICE OF ENTRY

Sir:

within is a (certified) true copy of an
duly entered in the office of the Clerk of the within named Court on
Dated: Mineola, New York
Please take notice that the

NOTICE OF SETTLEMENT

Sir:

Please take notice that a

presented for settlement to the
within named Court, at
Dated: Mineola. New York

judgment
Hon.
on the

Service of a Copy ofthe within
is hereby admitted.
Dated:

of which the within is a true copy will be
of the
day

of

,2009