Member Services, Inc. et al v. Security Mutual Life Insurance Company of New York et al

Filing 207

ORDER -- the applications for both plaintiffs and the SML defendants for an award of costs and attorneys' fees is denied; denying 175 Motion for Sanctions; denying 185 Motion to Dismiss; the SML defendants' motion to strike the report d ated on or about May 20, 2009, 190 is denied; granting 192 Motion to Disqualify Counsel. Attorney Douglas J. Nash and Gabriel M. Nugent terminated. Plaintiffs' oral request for an order compelling further discovery on the part of the SML defendants is denied. Signed by Magistrate Judge David E. Peebles on 7/30/09. (mnm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ____________________________________ MEMBER SERVICES, INC., et al., Plaintiffs, vs. SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, et al., Defendants. ____________________________________ APPEARANCES: FOR PLAINTIFFS: OFFICE OF DANIEL SLEASMAN One Crumitie Road Albany, NY 12211 GIRVIN, FERLAZZO LAW FIRM 20 Corporate Woods Boulevard 2nd Floor Albany, NY 12211-2350 HISCOCK, BARCLAY LAW FIRM One Park Place 300 South State Street Syracuse, NY 13202-2078 FOR DEFENDANT SCHMITTSUSSMAN ENTERPRISES, INC.: HURWITZ, SAGARIN LAW FIRM 147 North Broad Street Milford, CT 06460 DAVID A. SLOSSBERG, ESQ. BRIAN WHEELIN, ESQ. DANIEL SLEASMAN, ESQ. OF COUNSEL: Civ. Action No. 3:06-CV-1164 (TJM/DEP)

PATRICK FITZGERALD, III, ESQ.

DOUGLAS J. NASH, ESQ. GABRIEL M. NUGENT, ESQ.

FOR REMAINING DEFENDANTS: HINMAN, HOWARD LAW FIRM P.O. Box 5250 80 Exchange Street 700 Security Mutual Building Binghamton, NY 13902-5250 BOND, SHOENECK LAW FIRM One Lincoln Center Syracuse, NY 13202 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ORDER Currently pending before the court in connection with this action are various motions and cross-motions. The process was initiated by the plaintiffs' filing of a motion in which they seek a preclusion order as well as costs and attorneys' fees pursuant to Rule 37 of the Federal Rules of Civil Procedure, based upon defendants' alleged non-compliance with prior discovery orders of the court including, inter alia, those issued on March 12, 2007 (Dkt. No. 27) and October 3, 2007 (Dkt. No. 67). Dkt. No. 175. In addition to opposing that motion, all of the defendants with the exception of Schmitt-Sussman Enterprises, Inc. (collectively, the "SML Defendants") have cross-moved for costs and attorneys' fees as well as an order striking a supplemental report of plaintiffs' expert, Michael R.
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ALBERT J. MILLUS, JR., ESQ.

GEORGE R. McGUIRE, ESQ. DAVID L. NOCILLY, ESQ.

Elliott, disclosed on or about May 20, 2009. Dkt. No. 190. Also before the court are plaintiffs' motion for leave to amend their complaint and/or to dismiss their claims against the individual defendants pursuant, inter alia, to Rule 41(a)(2) of the Federal Rules of Civil Procedure (Dkt. No. 185) and the SML Defendants' motion to disqualify Hiscock & Barclay, LLP from representing the plaintiffs in this action based upon an alleged conflict of interest (Dkt. No. 192). Oral argument was heard with regard to the various pending motions, which were vigorously contested, on July 29, 2009. Following the close of argument I issued an oral decision addressing each of the parties' respective motions. Based upon the foregoing and the court's bench decision, which is incorporated herein by reference, it is hereby ORDERED, as follows: 1) DENIED. 2) The applications of both plaintiffs and the SML Defendants for Plaintiffs' motion for a preclusion order (Dkt. No. 175) is

an award of costs and attorneys' fees is DENIED. 3) The SML Defendants' motion to disqualify the firm of Hiscock

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& Barclay LLP from representing the plaintiffs in this action (Dkt. No. 192) is GRANTED. 4) The SML defendants' motion to strike the report dated on or

about May 20, 2009 of Michael Elliott (Dkt. No. 190) is DENIED, provided, however, that the SML Defendants shall be afforded an opportunity, on or before August 21, 2009, to disclose to plaintiffs a report of its expert in response to the May 20 Elliott report, and further that expert Elliott be made available for deposition at a mutually convenient date and time on or before September 11, 2009, either in the Northern District of New York or, at plaintiffs' expense, in California. 5) Plaintiffs' application for leave to amend and/or for an order

dismissing their claims against the individual defendants in this case (Dkt. No. 185) is DENIED, without prejudice to the right to apply for such relief, either on stipulation of all parties or by motion made to the assigned district judge, the Hon. Thomas J. McAvoy. 6) Plaintiffs' oral request for an order compelling further discovery

on the part of the SML Defendants is DENIED.

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7)

The clerk is directed to promptly forward copies of this order to

the parties electronically, pursuant to the court's local rules.

Dated:

July 30, 2009 Syracuse, NY

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