Yoder, et al v. Town of Morristown, et al

Filing 105

MOTION to Amend/Correct 13 Answer to Complaint to clarify and supplement an affirmative defense Motion Hearing set for 4/3/2012 11:00 AM in Albany before Senior Judge Neal P. McCurn Response to Motion due by 3/19/2012 filed by Mark Blanchard, Christopher Coffin, Lanetta Kay Davis, Frank L. Putman, David Stout, III, Town of Morristown, Gary Turner, Howard Warren. (Attachments: # 1 Declaration Laws Declaration, # 2 Exhibit(s) A, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D, # 6 Memorandum of Law, # 7 Appendix unreported case, # 8 Appendix unreported case, # 9 Appendix unreported case, # 10 Appendix unreported case, # 11 Appendix unreported case, # 12 Appendix unreported case, # 13 Appendix unreported case, # 14 Appendix unreported case, # 15 Affidavit certificate of service) Motions referred to Therese Wiley Dancks. (Laws, April)

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Caution
As of: Feb 17, 2012
NEW YUEN FAT GARMENTS FACTORY LIMITED, Plaintiff, -againstAUGUST SILK, INC., and DIRECT APPAREL SOURCING, INC., Defendants.
07 Civ. 8304 (JFK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
2009 U.S. Dist. LEXIS 45857

June 1, 2009, Decided
June 1, 2009, Filed
COUNSEL: [*1] For New Yuen Fat Garments Factory
Limited, Plaintiff, Counter Defendant: Peter Erik Sverd,
LEAD ATTORNEY, Yuen Roccanova Seltzer & Sverd,
LLP, New York, NY.
For August Silk, Inc., Direct Apparel Sourcing, Inc.,
Defendants, Counter Claimants: Harlan Mitchell Lazarus,
LEAD ATTORNEY, Lazarus & Lazarus, P.C., New
York, NY.
JUDGES: JOHN F. KEENAN, United States District
Judge.
OPINION BY: JOHN F. KEENAN
OPINION

MEMORANDUM OPINION & ORDER
JOHN F. KEENAN, United States District Judge:
Before the Court is Plaintiff New Yuen Fat Garments

Factory Limited's ("New Yuen") motion for an order
pursuant to Rule 15 of the Federal Rules of Civil
Procedure granting New Yuen leave to amend its
complaint. Defendants August Silk Inc. ("August Silk")
and Direct Apparel Sourcing, Inc., ("Direct") oppose the
motion. For the reasons set forth below, the motion is
granted.
I. BACKGROUND
This case arises out of a contract dispute among New
Yuen, a manufacturer of athletic apparel organized under
the laws of Hong Kong; Direct, an apparel retailer and
importer incorporated in Delaware; and August Silk, an
apparel retailer also incorporated in Delaware.
A. Initial Complaint
On September 24, 2007, New Yuen filed its initial
complaint, which set forth [*2] the following allegations:
On or about September 1, 2003, New Yuen and Direct
entered into four contracts for the manufacture and
delivery of apparel by New Yuen for Direct. The first

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2009 U.S. Dist. LEXIS 45857, *2

contract ("Contract 1") required Direct to pay New Yuen
$ 136,842.00; the second ("Contract 2"), $ 4,185.00; the
third ("Contract 3"), $ 162,978.60; and the fourth
("Contract 4"), $ 50,706.00. New Yuen fulfilled its
obligations under all four contracts, but never received
payment from Direct. The initial complaint also alleged,
in the alternative, that Contracts 1, 2, 3, and 4 were
between New Yuen and August Silk; that August Silk
entered the agreements either directly or through its
agent, Direct; and that New Yuen never received
payment from August Silk.

essentially [*4] contained two agreements: (1) that
August Silk would purchase one last container of apparel
from New Yuen by wiring $ 40,000 and then an
additional $ 10,000 ten days later, and (2) that August
Silk would pay all outstanding debts arising from
Contracts 1, 2, and 3, while receiving a $ 0.40 discount
per garment. (See id.) Li purportedly memorialized this
agreement in a February 8, 2004, e-mail to Benedict
Chan ("Chan"), August Silk's chairman. (Id. at Ex. J.)

New Yuen set forth six causes of action: (1) breach
of contract and (2) unjust enrichment claims against
Direct predicated on all four contracts; (3) breach of
contract and (4) unjust enrichment claims against August
Silk predicated on all four contracts; (5) a cause of action
entitled "August [Silk] contracted with New Yuen by its
agent Direct" (Compl. 9); and (6) a cause of action
entitled "New Yuen was the intended third-party
beneficiary of August [*3] [] [Silk's] contract with
Direct," (id.).

According to New Yuen, information learned during
discovery and gleaned from August Silk's answer and
alternative counterclaims suggests that August Silk
tortiously interfered with the contracts between New
Yuen and Direct. First, New Yuen points to allegations in
August Silk's answer and alternative counterclaims as
demonstrating that August Silk was aware that New Yuen
and Direct had contracted together, a necessary element
to a tortious interference claim. (See id. at Ex. B PP 155,
156, 157, 163.) Second, New Yuen claims Chan's
testimony at his October 22, 2008, deposition proves
August Silk induced Direct to breach its contract with
New Yuen. Chan's testimony suggested August Silk and
Direct had agreed [*5] that August Silk would not fund a
letter of credit it had transferred to Direct and that was
ultimately intended for New Yuen to pay for apparel
under Contracts 1, 2, and 3. Finally, during discovery,
New Yuen learned that Defendants executed mutual
releases of liability in mid-May 2004 (id. at Ex. H), and
that, in a letter sent that same month, Direct agreed to
indemnify August Silk from any claim brought by New
Yuen arising out of the transactions at issue in this case
(id. at Ex. G).

August Silk answered the initial complaint on
October 30, 2007, and Direct did the same on April 29,
2008. Defendants have asserted counterclaims, generally
alleging that New Yuen failed to perform under the
contracts. On December 7, 2007, the Court entered a
scheduling order, setting a May 1, 2008, deadline to
amend pleadings and referring the matter to a magistrate
judge for discovery supervision.
B. Discovery
During discovery, New Yuen learned facts that (1)
changed New Yuen's understanding of Contract 4 and (2)
allegedly indicate that August Silk tortiously interfered
with New Yuen's contracts with Direct.
1. Contract 4
In the initial complaint, New Yuen alleged that
Contract 4 was between New Yuen and Direct or,
alternatively, New Yuen and August Silk and that it was
an agreement to pay New Yuen $ 50,706.00 for the
manufacture and delivery of apparel. According to New
Yuen, testimony at the deposition of Karvin Li ("Li"),
New Yuen's principal, revealed that the contract was in
fact only between New Yuen and August Silk. (See Decl.
of Peter Sverd at Ex. I 91:16-92:18.) New Yuen further
claims that Li's testimony indicated that Contract 4

2. Tortious Interference

C. Proposed Amended Complaint
Plaintiff now asks the Court's permission to file an
amended complaint in light of facts learned during
discovery. The proposed amended complaint redefines
Contract 4 as an agreement between New Yuen and
August Silk to settle outstanding payments for Contracts
1, 2, and 3, and as an agreement by August Silk to pay
New Yuen a total of $ 50,000 for a final container of
apparel. The proposed amended complaint alleges that
August Silk paid the initial $ 40,000 for the last container
of apparel, but never paid the remaining $ 10,000, and
further alleges that August Silk never paid the discounted
outstanding balance of $ 304,005.60 on Contracts 1, 2,
and 3. These amendments have [*6] the practical effect

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2009 U.S. Dist. LEXIS 45857, *6

of dropping Contract 4 from New Yuen's claims against
Direct and redefining Contract 4 in New Yuen's breach of
contract and unjust enrichment claims against August
Silk.
The proposed amended complaint also interposes a
new seventh cause of action against August Silk for
tortious interference for August Silk's alleged role in
inducing Direct to breach Contracts 1, 2, and 3.
II. DISCUSSION
A. Standard of Review
Rule 15(a)(2) of the Federal Rules of Civil
Procedure governs the amendment of a pleading that is
proposed after the moving party has been served with a
responsive pleading. Under such circumstances, the court
should freely grant leave to amend "when justice so
requires." Fed. R. Civ. P. 15(a)(2). However, the court
should deny the request "where there are no colorable
grounds for the proposed claim -- that is, where
amendment would prove futile." Barrett v. U.S. Banknote
Corp., 806 F. Supp. 1094, 1098 (S.D.N.Y. 1992) (citing
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L.
Ed. 2d 222 (1962)). "An amendment is considered futile
if the amended pleading fails to state a claim or would be
subject to a motion to dismiss on some other basis."
McNally v. Yarnall, 764 F. Supp. 853, 855 (S.D.N.Y.
1991) [*7] (citing S.S. Silberblatt, Inc. v. E. Harlem Pilot
Block, 608 F.2d 28, 42 (2d Cir. 1979)).
Where a scheduling order has been entered, the court
must balance the "lenient standard under Rule 15 (a) . . .
against the requirement under Rule 16(b) that the Court's
scheduling order 'shall not be modified except upon a
showing of good cause.'" Grochowski v. Phoenix Constr.,
318 F.3d 80, 86 (2d Cir. 2003) (quoting Fed. R. Civ. P.
16(b)). According to the Second Circuit, "A finding of
'good cause' depends on the diligence of the moving
party." Parker v. Columbia Pictures Indus., 204 F.3d
326, 340 (2d Cir. 2000). Examples of a party's failure to
be sufficiently diligent include basing a proposed
amendment on information long known to the moving
party. See, e.g., id. at 341 (affirming denial of leave to
amend after deadline where, at the time he initially
commenced his suit, plaintiff had information sufficient
to support his newly proposed breach of contract claim
(citing Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419
(11th Cir. 1998) (affirming denial of leave to amend after
deadline where "the information supporting the proposed

amendment to the complaint was available to [plaintiff]
even [*8] before she filed suit"))).
Although the diligence of the moving party is the
"primary consideration" under Rule 16(b), it is not the
only consideration. Kassner v. 2nd Avenue Delicatessen,
Inc., 496 F.3d 229, 244 (2d Cir. 2007). "The district
court, in the exercise of its discretion under Rule 16(b),
also may consider other relevant factors including, in
particular, whether allowing the amendment of the
pleading at this stage of the litigation will prejudice
defendants." Id.; see also Bayonne v. Pitney Bowes, Inc.,
No. 03 civ. 712, 2004 U.S. Dist. LEXIS 602, at *3 (D.
Conn. Jan. 12, 2004) ("Under Rule 16(b), a court may
exercise its discretion to deny an amendment because of
the moving party's undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies by
previously allowed amendment, undue prejudice to the
opposing party or futility of the amendment." (citing
Parker, 204 F.3d 326, 339-40 (2d Cir. 2000))).
In their briefs, both parties neglect to discuss Rule
16(b) even though New Yuen made the instant motion
long after the May 1, 2008, deadline set in the Court's
December 7, 2008, scheduling order. Despite the parties'
oversight, the Court will consider whether [*9] New
Yuen has shown good cause to modify the scheduling
order under Rule 16(b). The Court then considers
Defendants' argument that the proposed amendment
should be denied as futile.
B. Good Cause
New Yuen has shown good cause justifying
modification of the scheduling order to permit New Yuen
to add a tortious interference cause of action to its
complaint. This proposed cause of action is based on
evidence that was not available to New Yuen prior to
discovery, namely, Chan's deposition testimony and the
indemnification and mutual release agreements. New
Yuen's failure to bring this claim before the deadline thus
does not evince a lack of diligence. The Court
consequently declines to bar New Yuen's proposed
tortious interference cause of action as untimely.
The Court believes that, with greater diligence, New
Yuen might have avoided the need to amend the terms of
and parties to Contract 4. These proposed amendments
are based on Li's testimony and the February 4, 2004,
e-mail from Li to Chan. Although Li, who is New Yuen's
principal, had access to this evidence at the time New

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2009 U.S. Dist. LEXIS 45857, *9

Yuen filed the initial complaint, the Court declines to bar
these amendments as untimely. Importantly, there is no
[*10] prejudice to the Defendants and no suggestion that
New Yuen has acted in bad faith.
B. Futility
Defendants ask the Court to deny New Yuen's
motion to amend on the ground that the proposed third,
fourth, and seventh causes of action are futile.
1. Proposed Third Cause of Action: Breach of
Contract against August Silk
Defendants argue that Plaintiff's proposed third cause
of action is futile to the extent it is based on Contract 4
since (1) the statute of frauds bars the claim and (2) the
February 8 e-mail from Li to Chan, which precipitated
the proposed amendment, is inadmissible evidence of an
offer to compromise or settle.
a. Statute of Frauds
Under New York law, 1 "[e]very agreement, promise
or undertaking is void, unless it or some note or
memorandum thereof be in writing, and subscribed by the
party to be charged therewith, or by his lawful agent, if
such agreement, promise or undertaking . . . [i]s a special
promise to answer for the debt, default or miscarriage of
another person." N.Y. Gen. Oblig. Law § 5-701 (a).
According to Defendants, Contract 4 contains a promise
by August Silk to pay New Yuen moneys owed by Direct
under Contracts 1, 2, and 3. Since the proposed third
cause of [*11] action does not allege that August Silk
signed a writing in connection with Contract 4,
Defendants argue that Contract 4 is unenforceable against
August Silk, making the proposed amendment futile.
1
Both parties agree that New York law is
controlling.
Contract 4 does not necessarily contain a promise by
August Silk to pay the debt of another. The proposed
amended complaint defines Contract 4 as, in part, "an
agreement whereby, New Yuen and August agreed upon
payment of all outstanding disputes." (Am. Compl. P 76.)
It clarifies that those outstanding disputes relate to
moneys owed to New Yuen under Contracts 1, 2, and 3.
(Id. P 80.) Although the proposed amended complaint
alleges that Contracts 1, 2, and 3 were between New
Yuen and Direct (id. PP 11, 20, 29), it also alleges, in the

alternative, that Contracts 1, 2, and 3 were between New
Yuen and August Silk directly (id. PP 50, 58, 67) or
between New Yuen and August Silk through August
Silk's agent, Direct (id. PP 107-09). The Federal Rules of
Civil Procedure explicitly permit this kind of pleading in
the alternative and note that "the pleading is sufficient if
any one of [the alternative statements of a claim] is
sufficient." Fed. R. Civ. P. 8(d)(2); [*12] see also
Taylerson v. American Airlines, Inc., 183 F. Supp. 882,
884 (S.D.N.Y. 1960) ("A complaint which contains
alternative statements of the claim, some of which are
insufficient, will not be dismissed if any one alternative
statement supports the claim."). Since the proposed
amendment does not exclusively allege that Contract 4 is
a promise to pay the debt of another, N.Y. Gen. Oblig.
Law § 5-701(a) does not render New Yuen's proposed
third cause of action futile.
In a footnote, Defendants argue that Contract 4 also
fails under the New York Uniform Commercial Code's
("N.Y. U.C.C.") statute of frauds. 2 N.Y. U.C.C. §
2-201(1) reads,
Except as otherwise provided in this
section a contract for the sale of goods for
the price of $ 500 or more is not
enforceable by way of action or defense
unless there is some writing sufficient to
indicate that a contract for sale has been
made between the parties and signed by
the party against whom enforcement is
sought or by his authorized agent or
broker.
N.Y. U.C.C. § 2-201(2) explains that, under certain
circumstances, a writing signed only by the party seeking
to enforce the contract can satisfy the statute of frauds:
Between merchants if within [*13] a
reasonable time a writing in confirmation
of the contract and sufficient against the
sender is received and the party receiving
it has reason to know its contents, it
satisfies the requirements of [N.Y. U.C.C.
§ 2-201(1)] against such party unless
written notice of objection to its contents
is given within ten days after it is received.
"Merchant," as used here, is "a person who deals in goods
of the kind . . . involved in the transaction." Id. §
2-104(1).

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2009 U.S. Dist. LEXIS 45857, *13

2 Defendants make this argument even though
they contend that the N.Y. U.C.C. does not
govern Contract 4.
Assuming arguendo that the N.Y. U.C.C. governs
Contract 4, the contract is nonetheless valid as alleged.
The proposed amended complaint alleges that New Yuen
and August Silk entered into Contract 4 on February 4,
2004, and that New Yuen then reduced the terms to
writing and delivered the written version to August Silk
on February 8, 2004. (Am. Compl. P 81.) The amended
complaint further alleges that "August [Silk] did not
refute or object to Contract 4 as written." (Id. P 82.) As
corporations that regularly deal in apparel, New Yuen
and August Silk meet the N.Y. U.C.C.'s definition of
"merchant," meaning that New Yuen can enforce [*14]
Contract 4 against August Silk despite the fact that
August Silk did not sign the writing. Therefore, even
assuming it governs Contract 4, the N.Y. U.C.C. would
not render the proposed third cause of action futile.
b. Inadmissible Evidence
Defendants argue the proposed amendments
concerning the February 8 e-mail are futile since the
e-mail is inadmissible under Rule 408 of the Federal
Rules of Evidence as an offer to settle or compromise. As
discussed above, an amendment is futile if it fails to state
a claim or would be subject to a motion to dismiss on
some other basis. McNally, 764 F. Supp. at 855 (citing
S.S. Silberblatt, Inc., 608 F.2d at 42. When assessing a
claim under this standard, the court may consider "the
facts as asserted within the four corners of the complaint,
the documents attached to the complaint as exhibits, and
any documents incorporated in the complaint by
reference." McCarthy v. Dun & Bradstreet Corp, 482
F.3d 184, 191 (2d Cir. 2007). However, the admissibility
of documents incorporated in the complaint is irrelevant
at the dismissal stage. Ricciuti v. N.Y.C. Transit Auth.,
941 F.2d 119, 123 (2d Cir. 1991) ("The fact that a
pleading contains references to documents [*15] that
may eventually be ruled inadmissible in evidence is not a
proper basis for dismissal . . . ."); see also Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980) (holding that
the court's role in weighing a motion to dismiss "is
merely to assess the legal feasibility of the complaint, not
to assay the weight of the evidence which might be
offered in support thereof").
Even assuming the proposed amended complaint
incorporated the February 8 e-mail by reference, 3

considering the e-mail's admissibility at this stage would
be improper.
3 The proposed amended complaint refers to
what the Court presumes to be the February 8
e-mail in only one paragraph: "On February 8,
2004, New Yuen reduced terms of Contract 4 in
writing [sic] and delivered the written Contract 4
to August [Silk]." (Am. Compl. P 81.)
Therefore, the Court finds that New Yuen's proposed
third cause of action is not futile.
2. Proposed Fourth Cause of Action: Unjust
Enrichment
"To prevail on a claim for unjust enrichment in New
York, a plaintiff must establish (1) that the defendant
benefited; (2) at the plaintiff's expense; and (3) that
equity and good conscience require restitution." Beth Isr.
Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J.,
Inc., 448 F.3d 573, 586 (2d Cir. 2006). [*16] "The
theory of unjust enrichment lies as a quasi-contract claim.
It is an obligation the law creates in the absence of any
agreement." Goldman v. Metro. Life Ins. Co., 5 N.Y.3d
561, 841 N.E.2d 742, 746, 807 N.Y.S.2d 583 (N.Y. 2005).
Consequently, "[t]he existence of a valid and enforceable
written contract governing a particular subject matter
ordinarily precludes recovery [for unjust enrichment] for
events arising out of the same subject matter."
Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d
382, 516 N.E.2d 190, 193, 521 N.Y.S.2d 653 (N.Y. 1987).
However, the existence of a valid, enforceable written
contract must be undisputed in order to preclude an
unjust enrichment claim. Space, Inc. v. Simowitz, No. 08
Civ. 2854, 2008 U.S. Dist. LEXIS 51782, at *13 (S.D.N.Y.
July 7, 2008) (citing Newman & Schwartz v. Asplundh
Tree Expert Co., 102 F.3d 660, 663 (2d Cir. 1996)).
Defendants argue that New Yuen's proposed unjust
enrichment claim against August Silk under Contract 4
fails because New Yuen never conferred a benefit on
August Silk. Defendants' argument ignores the proposed
amended complaint's allegations that "New Yuen
undertook to perform Contract 4 by manufacturing and
delivering the 'last container' of apparel to August [Silk]"
(Am. [*17] Compl. P 83) and that "New Yuen fulfilled
its obligations under Contract 4" (id. P 84). The Court
must accept these allegations as true since the futility of
New Yuen's proposed amendments is judged under a
motion to dismiss standard. Cf. Bernheim v. Litt, 79 F.3d

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2009 U.S. Dist. LEXIS 45857, *17

318, 321 (2d Cir. 1996). Thus, this argument is without
merit.
Defendants also argue that the existence of valid
written agreements between New Yuen and Direct -namely, Contracts 1, 2, and 3 -- precludes New Yuen's
unjust enrichment claim against August Silk. Defendants
again overlook the fact that New Yuen has proposed
alternative statements of its claims as permitted by Rule
8(d)(2) of the Federal Rules of Civil Procedure.
Specifically, New Yuen has alleged in the alternative that
Contracts 1, 2, and 3 were between New Yuen and
August Silk. (Am. Compl. PP 50, 58, 67.) Defendants
have expressly disputed the existence of any contract
between New Yuen and August Silk. (August Silk's
Answer and Alternative Counterclaims P 160 ("[August
Silk] at no time was in contractual privity with [New
Yuen]").) Thus, Contracts 1, 2, and 3 (and Contract 4, for
that matter) are disputed insofar as they are alleged to be
between New Yuen [*18] and August Silk, and therefore
cannot preclude an unjust enrichment claim against
August Silk. Since this alternative statement of the claim
is sufficient to withstand a motion to dismiss, the entire
claim is sufficient. See Taylerson, 183 F. Supp. at 884.

available, among other situations, "where defendants
were significant stockholders in the breaching party's
business; where defendant and the breaching party had a
parent-subsidiary relationship; where defendant was the
breaching party's creditor; and where the defendant had a
managerial contract with the breaching party at the time
defendant induced the breach of contract with plaintiff."
White Plains Coat & Apron Co., 8 N.Y.3d at 426
(footnotes omitted). To overcome an economic interest
defense, a plaintiff must demonstrate that the defendant
acted with malice or employed fraudulent or illegal
means. Foster v. Churchill, 87 N.Y.2d 744, 665 N.E.2d
153, 157, 642 N.Y.S.2d 583 (N.Y. 1996).

The Court finds that the proposed amended fourth
cause of action is not futile.

Defendants argue that New Yuen's proposed tortious
interference claim cannot overcome August Silk's
economic interest defense since Plaintiff does not allege
that August Silk acted with malice or employed
fraudulent or illegal means. Defendants do not explain,
however, in what way August Silk's economic interest is
at stake or how inducing Direct to breach its contracts
with New Yuen protected that interest. The Court is thus
not persuaded at this stage that, as a matter of [*20] law,
August Silk can avail itself of the economic interest
defense, particularly since the instant facts are so
dissimilar from those situations discussed in White Plains
Coat & Apron Co.

3. Proposed Seventh Cause of Action: Tortious
Interference

The Court finds that New Yuen's proposed seventh
cause of action is not futile.

"Under New York law, the elements of tortious
interference with contract are (1) 'the existence of a valid
contract between the plaintiff and a third party'; (2) the
'defendant's knowledge of the contract'; (3) the
'defendant's intentional procurement of the third-party's
breach of the contract without justification'; (4) 'actual
breach of the contract'; and (5) 'damages resulting
therefrom.' Kirch v. Liberty Media Corp., 449 F.3d 388,
402 (2d Cir. 2006) (quoting Lama Holding Co. v. Smith
Barney Inc., 88 N.Y.2d 413, 668 N.E.2d 1370, 1375, 646
N.Y.S.2d 76 (N.Y. 1996)).

Conclusion

In response to a tortious interference claim,
"defendant may raise the economic interest defense -that it acted to protect its own legal or financial stake in
the breaching party's business." White Plains Coat &
Apron Co. v. Cintas Corp., 8 N.Y.3d 422, 426, 867
N.E.2d 381, 835 N.Y.S.2d 530 (2007). [*19] According
to the New York Court of Appeals, this defense is

The Court grants New Yuen permission to amend its
complaint as proposed. Counsel are instructed to appear
for a status conference in courtroom 20-C at 10:30 a.m.
on July 9, 2009.
SO ORDERED.
Dated: New York, New York
June 1, 2009
/s/ John F. Keenan
JOHN F. KEENAN
United States District Judge