In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
Filing
4339
TRANSCRIPT of Proceedings re: Conference held on 3/14/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Patricia Nilsen, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/8/2016. Redacted Transcript Deadline set for 1/18/2016. Release of Transcript Restriction set for 3/17/2016.(Siwik, Christine)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE:
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MTBE, et al.
00 MDL 1358 (SAS)
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New York, N.Y.
March 14, 2011
10:17 a.m.
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Before:
HON. SHIRA A. SCHEINDLIN,
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District Judge
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APPEARANCES
DL ROTHBERG & ASSOCIATES
Attorneys for Tartan Oil
BY: DEBRA ROTHBERG
HERZFELD & RUBIN, PC
Attorneys for Northville
BY: MICHAEL B. GALLUB
BRIAN CARR
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WILLIAM DUBANEVICH (via phone)
Attorney for Carle Place Water District and Village of
Mineola, Westbury Water District and the Village of
Hempstead Water District.
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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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THE COURT:
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MS. ROTHBERG:
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THE COURT:
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MR. GALLUB:
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THE COURT:
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MR. CARR:
Carr, yes.
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THE COURT:
C-A-R-R?
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MR. CARR:
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THE COURT:
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MR. DUBANEVICH:
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THE COURT:
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MR. DUBANEVICH:
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THE COURT:
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All right.
Good afternoon, Ms. Rothberg.
Good afternoon, Judge.
Good afternoon, Mr. Gallub.
Good afternoon, your Honor.
And good afternoon Mr. -- is it Carr?
Good afternoon.
Yes.
And Mr. Dubanevich?
Yes, your Honor.
Good afternoon.
Good afternoon, your Honor.
Remind me who you represent,
Mr. Dubanevich.
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MR. DUBANEVICH:
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THE COURT:
I represent the --
Wait.
The court reporter is having
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trouble hearing you.
I'll put the phone a little closer to
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you, but I'll also ask you to say it as loudly as you can.
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Hold on one second.
Now try that again.
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Mr. Dubanevich, who do you represent?
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MR. DUBANEVICH:
I represent the Carle Place Water
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District and Village of Mineola, Westbury Water District and
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the Village of Hempstead Water District.
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THE COURT:
Okay.
Now that we got through that, I
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hope you don't have anything more you have to say at this
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conference, do you, because it's kind of hard to hear you.
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MR. DUBANEVICH:
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THE COURT:
Generally, I hope not.
Okay.
All right.
So if you do have to
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speak, I'll end up repeating what you say, as I just did with
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the appearances.
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try to shout or something so I know you are trying to be heard.
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But hopefully, if you really need to speak,
All right.
The defendant Tartan has impleaded
Northville, correct?
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MS. ROTHBERG:
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THE COURT:
Correct, your Honor.
At the time you impleaded them, you only
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knew about and included in the third-party complaint a station
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in Carle Place, right?
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MS. ROTHBERG:
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THE COURT:
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And by the way, does this relate to all
four cases, Ms. Rothberg?
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MS. ROTHBERG:
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THE COURT:
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Yes, it does, as it happens.
All right.
So anyway, you impleaded them
in all four cases?
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MS. ROTHBERG:
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THE COURT:
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That's correct.
Correct.
But only with respect to the Carle Place
station?
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MS. ROTHBERG:
That was the only station we knew of.
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THE COURT:
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And then in the course of discovery, you say in late
I understand.
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October 2010 you learn that there might be another station with
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which Northville is involved called the Mineola station, and
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that Northville distributed gasoline to both the Carle Place
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and Mineola stations from 1983 to 1994; is that correct?
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MS. ROTHBERG:
It's in 1983 to 1995.
And the subject
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of our requested amendment is only for the Carle Place station
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in terms of the distribution.
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THE COURT:
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MS. ROTHBERG:
But you want to add the Mineola station?
Yes.
We want to add the Mineola
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station for operations and the Carle Place station
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distribution.
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THE COURT:
All right.
But in any event, I was
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summarizing the storyline here.
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station, which is not in the case yet, and you also do want to
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add the theory Northville is a distributor, and that's where
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the Carle Place station, and at the Mineola station, there were
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some spills in the 1990s.
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spills, one in 1990, one in 1991 and 1999.
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station is only a quarter-of-a-mile northeast of a Tartan-owned
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station, right, Ms. Rothberg?
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MS. ROTHBERG:
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THE COURT:
So you want to add the Mineola
There was at least three documented
And the Mineola
That's correct.
So it's very nearby.
And two of those
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three spills that I mentioned before did involve some
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groundwater contamination.
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to add.
So that's essentially what you want
And the defendant Northville, third-party defendant
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Northville, objects to this, I think primarily on the ground
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that it's close to the end of discovery, but I'm not sure
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there's any other ground.
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Mr. Golub?
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MR. GALLUB:
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THE COURT:
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rules:
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There are, your Honor.
Well, what are they?
Because you know the
Leave to amend is freely given, etc., etc.
the --
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MR. GALLUB:
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THE COURT:
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would be futile.
I appreciate that, your Honor.
So usually the only grounds to depose
That, I doubt, is a futility argument.
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MR. GALLUB:
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THE COURT:
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But what's
There is, Judge.
How could it be a futility argument with
respect to the Mineola station?
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MR. GALLUB:
With respect to the Mineola station, the
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futility argument doesn't apply as much.
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upstream distributor argument, Northville used to own and
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operate the station before it was sold to Tartan.
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THE COURT:
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MR. GALLUB:
With respect to the
Right.
Tartan is proposing to include a claim
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for a product liability claim for pure indemnification as an
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upstream distributor, but Northville never distributed gas to
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Tartan.
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respect to Tartan.
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Northville is not in the claim of distribution with
THE COURT:
No, but you distributed to that station,
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to the Carle Place station.
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MR. GALLUB:
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THE COURT:
But that was our station.
Yes, I understand.
But you not only own
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the station, but you supplied the gasoline to the station.
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That's all she's saying.
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MR. GALLUB:
Yeah, but you can't have an
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indemnification claim -- the essence of an indemnification
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claim is that if they are hit for strict product liability with
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respect to selling gasoline, then they're looking upstream.
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THE COURT:
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MR. GALLUB:
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THE COURT:
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MR. GALLUB:
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THE COURT:
No, but you -Really for the manufacturer.
Right.
But you never supplied them.
We never supplied them at all.
Right.
I think maybe this is just a
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semantic problem.
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before Tartan took over that station, you owned the station and
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you supplied the gasoline to your own station.
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capacities, if the liability goes, I don't know, to the prior
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owner or as well as the current owner, you could be in under
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either of those theories directly, so to speak.
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course, you have to be right.
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then don't plead it as a supplier to Tartan, because that would
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be futile.
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it.
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All she's really saying is that in the years
In both
But, of
If you didn't supply Tartan,
There was never a supplier to you when you owned
Do you agree, Ms. Rothberg?
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MS. ROTHBERG:
Correct, Judge.
And we haven't
proposed to plead that.
THE COURT:
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the complaint.
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So that's not what they're going to say in
complaint?
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You've seen the complaint, the proposed
MR. GALLUB:
I've seen the proposed amended
third-party complaint.
But, Judge, just to add a point, with respect to
supplying gasoline to its own station, Northville is already
subject to claims regarding that station.
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THE COURT:
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MR. GALLUB:
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THE COURT:
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MR. GALLUB:
Regarding the?
Regarding the Carle Place -No, Carle Place, I know.
Oh.
Go ahead.
Let me -- if I may cut through it,
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because Tartan has stated to this Court that they're looking
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with respect to the product liability indemnity only for the
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Carle Place station, so forget about Mineola with respect to
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that argument.
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With respect to Carle Place, Northville operated that
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station; so basically supplied gasoline to itself.
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product liability claim with respect to Northville's providing
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of gasoline to itself.
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is if Northville supplied gasoline to Tartan, and that just
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hasn't happened.
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THE COURT:
There is no
The only potential claim for indemnity
Yeah, so I can see adding Mineola.
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I can
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see that in Carle Place, if she wants to add language that you
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not only owned the station but supplied the gasoline station,
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that's fine, too.
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But it doesn't equal a legal claim for
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indemnification, Ms. Rothberg.
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for indemnification when he didn't supply Tartan?
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MS. ROTHBERG:
How could it be a legal claim
Our understanding -- and perhaps we're
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wrong, Judge -- is that to the extent that they supplied
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gasoline to that same station, it states an additional cause of
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action.
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THE COURT:
Yes, but not for indemnification.
In
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other words, it may have liability as the property owner before
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you contaminated the groundwater.
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the big harm of adding Mineola.
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discovery to allow time for discovery with respect to the
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Mineola station.
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That's fine, and I don't see
It just means I have to extend
But on Carle Place, all he's saying is you can't have
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them indemnify your liability.
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but they can't indemnify your liability, because they were
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never your supplier.
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right.
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time to cover the new discovery with respect to Mineola,
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whatever it is, and be done with this.
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They may be a joint tortfeasor,
So you just need to get the language
I need to extend the darn discovery schedule by enough
MR. GALLUB:
Your Honor, if I may be heard.
As to the
Mineola station, your Honor should know -- and I am very
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mindful of the liberality of amendments to pleadings.
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being said, with respect to the three spills, there's a 1999
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spill but that was after Northville relinquished ownership and
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possession of the station.
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That
So that doesn't apply.
With respect to the 1990 to 1991 spills, both were
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found by the DEC as to not involve anything that impacted the
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groundwater.
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THE COURT:
groundwater.
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MR. GALLUB:
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THE COURT:
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That's not so, Judge.
I know that --
Those are my notes, two of the spills.
Maybe I'm wrong.
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My notes say two of the three impacted the
MR. GALLUB:
That may be Tartan's contention, but the
DEC records bear out what I'm saying.
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THE COURT:
All right.
But we don't usually try the
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case before the amendment.
You can always move to dismiss,
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either by summary judgment, or you attach the DEC findings, or
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if it's on the face of the pleading.
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amend is freely given.
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spills.
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your motion and do exactly what you just pointed out.
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you were not responsible in any way because you weren't there
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any longer.
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contaminate the groundwater, that's dispositive, but maybe
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there's an expert who will pop up in this thing and say, we can
But it is -- leave to
The Mineola station did have three
It's a quarter mile northeast.
You know, then make
In '99
And then earlier too, if the DEC said it didn't
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test the DEC's findings, we've had this before in this MDL, so
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it's not dispositive.
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And practically speaking, I will allow the addition of Mineola.
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Doesn't make it futile to add Mineola.
I would ask you to clean up the language on Carle
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Place, because they can't indemnify you.
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percentage of liability, but they're not required to indemnify
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you if they were not your supplier.
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MR. GALLUB:
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THE COURT:
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MR. GALLUB:
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And I would have to extend discovery.
Your Honor, if I may also be heard as to
The Mineola station is not within proximity of most of
the plaintiffs --
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And, your Honor --
the Mineola issue.
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You may have some
THE COURT:
I don't care about "most."
If it's in
proximity of any of the --
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MR. GALLUB:
It may be I'll clear this up for you.
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There are four actions here:
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Hempstead and Westbury, but the Mineola station is only
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arguably related with respect to the plaintiff's Mineola wells.
There's Mineola, Carle Place and
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THE COURT:
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Ms. Rothberg, when do you want to bring in the Mineola
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station?
Maybe she agrees, I don't know.
Is that in all four complaints?
MS. ROTHBERG:
I want to bring in all that the
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plaintiff is alleging against us, Judge, because the stations
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are so proximate to each other.
To the extent we're in, we
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are.
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I will tell you we're in discussions with the
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plaintiff to let us out of two of the water districts, because
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there is a distance.
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THE COURT:
All right.
Now, if you were to prevail in
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those friendly discussions, would you then dismiss the same two
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against Mineola station?
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MS. ROTHBERG:
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THE COURT:
Yes, I would, Judge.
Northville?
Okay.
So you may get there.
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She's saying -- the same cases, you don't belong in the Mineola
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station.
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not convince Mr. Duvanevich that it's not worth his time.
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as soon as she prevails, if she does, with respect to that
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argument, so do you.
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understand your point, because she understands your point and,
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frankly, agrees with it.
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could be liable, this guy's less than a quarter mile down the
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road, but she's saying realistically, I'm not wanting to leave
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her.
She doesn't think she belongs either.
And she may
So
So I can't parse it out now, but I
She's just saying if anyone thinks I
I'm too far.
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MR. GALLUB:
Your Honor, to the extent -- I have
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arguments regarding prejudice and regarding timing.
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pretty clear your Honor has denied those.
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THE COURT:
Well, not denied.
And it's
I realize that to
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accommodate that problem, I'd have to extend the deadline
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again.
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MR. GALLUB:
It is Northville's intention,
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respectfully, to bring in -- to implead additional stations
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within that proximity area with respect to these actions.
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I would respectfully request leave to do that, and then we
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agree on a schedule that accommodates that.
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THE COURT:
And
I wouldn't want you to do that for the
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ones that are under negotiation right now, because it's a waste
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of time.
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bringing someone else in.
If you're going to get let out, there's no point in
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MR. GALLUB:
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THE COURT:
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I'll hold off on those.
That's right.
Hold off, then if we have
to, we have to.
Can you tell us which two cases you're hoping to be
let out of?
MS. ROTHBERG:
We're in discussions on Village of
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Hempstead and Westbury Water District, but as I said, the
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plaintiff hasn't gotten back to us yet.
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THE COURT:
I realize, but those are the two you're
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hopeful that they work out?
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MS. ROTHBERG:
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THE COURT:
Yes.
Those are the very two, Mr. Gallub, that
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you think you couldn't possibly have liability for, Hempstead
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and Westbury?
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MR. GALLUB:
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THE COURT:
That's correct.
So --
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MR. GALLUB:
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We
also maintain Carle Place.
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Well, that's two out of the three.
THE COURT:
Even though you have a place in Carle
Place?
MR. GALLUB:
No.
With respect to the Mineola
station --
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THE COURT:
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Ms. Rothberg, with respect to the Carle Place case, do
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you need their Mineola station for the Carle Place case, or you
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Oh.
Let's talk about that.
just needed your additional theory?
MS. ROTHBERG:
I'd have to go back and look, Judge,
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but I believe if your Honor is saying we're not going to be
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amending anything on -- I'm not sure what your ruling was on
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Carle Place in terms of distribution.
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the complaint --
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THE COURT:
We're going to clean up
You do know what my ruling was.
I was
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very clear.
I said you can't have an indemnification claim.
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Mr. Golub is right, he was never your distributor, but he could
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be a joint tortfeasor.
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of the day, such that if you have liability, you can prove that
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the harm to the plaintiff was also caused by or was more caused
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by or was only caused by him.
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indemnification.
He could have some liability in the end
But that's not called
So it's just --
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MS. ROTHBERG:
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THE COURT:
I'm sorry.
It's just semantics.
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MS. ROTHBERG:
In that case, the Carle Place
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station -- and I believe the plaintiff can speak to this --
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we're not in any discussions to get rid of Mineola or Carle
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Place.
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THE COURT:
Oh, you need the Mineola -- you need
Northville's Mineola station in the Carle Place case?
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MS. ROTHBERG:
Correct, Judge.
There's two that it's
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proximate to, just as ours -- our Mineola station is.
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plaintiff has asserted that Mineola and Carle Place are within
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And the
that RGA and --
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THE COURT:
So she's saying, correctly, the lawyer for
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Tartan is saying if it's the plaintiff's theory that the Tartan
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station -- sorry, yes -- the Tartan station in Mineola was
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proximate enough to Carle Place to cause the damage in the
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Carle Place case, then she says as a claim is over, so is
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yours?
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MR. GALLUB:
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THE COURT:
Well, I appreciate that claim.
Just --
So if you're going to be added third-party
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defendants in the Carle Place or Mineola cases, you might as
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well go ahead and do it, because there's no discussions to let
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anybody out.
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MR. GALLUB:
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THE COURT:
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And, your Honor -Not be added to it; ask you to hold off on
Hempstead and Westbury.
Let me ask Mr. Duvanevich, since you asked to be on
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this call, now you're going to be put on the hot seat:
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thinking maybe that in Hempstead and Westbury, you don't need
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Tartan?
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MR. DUBANEVICH:
THE COURT:
When do you think that might be roughly,
without a --
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Your Honor, as soon as determination
is made, I will let Ms. Rothberg and Mr. Dowel know.
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Are you
MR. DUBANEVICH:
Roughly, your Honor -- unfortunately
my dates change so quickly during this period.
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two to three weeks.
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THE COURT:
I'm hoping for
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All right.
Very good.
So let's say let's
try to get this done by April 8th.
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So, Mr. Golub, I'd ask you not to make any motion to
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implead anybody in the Hempstead and Westbury cases until we
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hear back from Mr. Dubanevich, which we hope will be no later
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than April 8th.
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complaint is filed, if you really want to bring -- are they
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called fourth-party actions?
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do it.
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On the other two, as soon as the amended
If you really want to do it, go
And as far as extending the discovery cut-off, what is
our current cut-off?
MS. ROTHBERG:
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to conclude, Judge.
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THE COURT:
April 18th, fact discovery is supposed
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I have to add that the first six weeks you
asked for, you asked for 90 days, I showed 45.
It shows how
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wise I was.
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I have no choice but to go to May 31st.
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plaintiff does deserve their day in court.
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Now, I can go to your 90.
So it was April 18th.
But really, the
So let's try to close this thing out by May 31st.
So
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I think you should move promptly on adding your third-party
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defendants, if you're going to do it, in Mineola and Carle
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Place cases.
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MR. GALLUB:
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THE COURT:
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We will, your Honor.
One second, Mr. Duvanevich.
I know you
want to speak, but just one second.
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MR. GALLUB:
We will -- your Honor, with respect to
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May 31st, I would ask the Court if that is realistic, with
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respect to the fact that a new gas station is being added here.
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THE COURT:
Still, it's only one.
And you already
have DEC --
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MR. GALLUB:
And we're bringing in additional parties.
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We're just going to require an amendment to the discovery
18
schedule at that point.
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THE COURT:
I'm just not looking --
I'll worry about that, new parties, if and
when.
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MR. GALLUB:
Okay.
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THE COURT:
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But as far as your own discovery, it might be pretty
I'll do that on an "if and when" basis.
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straightforward.
You said you know when you didn't know.
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it must have been before '99, because you said you weren't
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responsible on the third spill.
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When did you stop owning it?
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MR. GALLUB:
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THE COURT:
I believe around '94.
Okay.
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the DEC records.
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Who owned it after '94?
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prediscovery.
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You have
You should be able to move fairly promptly.
Might as well tell us that
Who did you sell it to?
MR. GALLUB:
I don't recall the name right now, but I
could supply that.
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THE COURT:
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MR. GALLUB:
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So you have two spills.
You don't, or you don't want to tell?
No, I don't.
I do not recall the name,
Judge.
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THE COURT:
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MR. CARR:
Neither of you recall?
I know it was sold, but I don't know the
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name of the entity.
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THE COURT:
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MR. GALLUB:
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Well, we'd all like to know.
We have that information, and we'll
supply that.
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Okay.
THE COURT:
Can you call either Ms. Rothberg and/or
Mr. Dubanevich right away on that?
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MR. GALLUB:
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THE COURT:
Absolutely.
If they want to move, they should move
23
fast.
So call her, I mean, when you get back to the office and
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say, "the buyer was."
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office?
You have that information back at the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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13eemtbc
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MR. GALLUB:
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THE COURT:
I believe so, Judge.
All right.
Then I expect you to call no
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later than close of business tomorrow and say, that's who we
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sold it to.
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Okay.
Now, you wanted to say something,
Mr. Dubanevich?
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Do what you want to do.
Say it as loud as you can.
MR. DUBANEVICH:
it.
Thank you, your Honor.
You addressed
Thank you very much.
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THE COURT:
I addressed what you were going to say,
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okay.
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date conference towards the end of May, just before that
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May 31st cut-off, and see if we've gotten somewhere, what kind
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of progress we've made.
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So Friday, the 27th.
MR. GALLUB:
Your Honor, I have that Friday problem.
And it's Memorial Day weekend, and I have plans to be away.
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THE COURT:
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MR. GALLUB:
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MS. ROTHBERG:
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Anybody have a Friday problem?
Friday, the 27th of May at 4:30.
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Then maybe the thing to do is for me to have a control
All right.
Thursday, May 26th.
And I'm away the 26th, Judge.
Judge, I couldn't do the 25th.
I'm
sorry.
MR. GALLUB:
You caught me on the rare time that I'm
actually away.
THE COURT:
take us to Monday.
To come in before the 31st is going to
Monday, the 23rd; Tuesday, the 24th.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
I
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don't care which.
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MS. ROTHBERG:
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THE COURT:
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the 23rd, at 4:30.
23rd would be best for me.
Monday, the 23rd, at 4:30, then.
Monday,
Status conference in these cases.
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Okay, Mr. Dubanevich?
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MR. DUBANEVICH:
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THE COURT:
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23rd at 4:30.
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Yes, your Honor.
Thank you.
I'll call it Village of Hempstead, et al.,
All right.
Anything else today?
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Now, you need leave to file that amended complaint.
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Just submit a three-liner to the Court, saying leave to amend
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is hereby granted, so they take it in the clerk's office, or
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leave to file an amended third-party complaint is hereby
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granted.
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filed.
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I'll sign my name, and off it goes so you can get it
MR. GALLUB:
Am I going to require the same thing,
your Honor, with regard to the implead?
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THE COURT:
I think you can do that.
You're not
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amending anything.
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complaint and bringing a fourth-party action.
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that in the clerk's office.
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an amended third-party complaint without my signing.
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You're just answering the third-party
They'll take
I just don't think they would take
So very simple order.
Don't waste any time.
fax it.
MS. ROTHBERG:
Okay.
Thank you Judge.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
You can
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THE COURT:
Clean up that language on indemnification.
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All right.
Yes?
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MR. GALLUB:
Your Honor, with regard to the amendment,
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just one more thing I forgot to add.
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pleading, they have a very open -- they're seeking to assert a
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very open-ended, catchall type of a claim for, quote, any other
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Northville affiliated station that is found relevant during the
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course of discovery, close quote.
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In their proposed
I think that's inappropriate with respect to a
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pleading.
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everything open --
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It doesn't identify any gas station, and it leaves
THE COURT:
I know.
It's just trying to keep the door
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open if this occurs again.
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didn't learn about the Mineola station until she says end of
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October.
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another station will turn up?
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any more Northville stations in these areas.
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Maybe it would just help if you say, this is where we were in
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all these areas in those years.
While she's busy discovering that, who knows if
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MR. GALLUB:
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THE COURT:
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Here, she had a whole discovery,
Maybe, you know, there won't be
But I don't know.
Well, we've -You know where you're being sued for, so
it's only his for -MS. ROTHBERG:
We don't think there is, Judge.
But
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that's exactly the language that the plaintiff had, so we felt,
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rather than having to come back to you -SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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THE COURT:
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MS. ROTHBERG:
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Well, you'd have to come back anyway.
Well, we'd be on a little bit better
footing.
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THE COURT:
You would be.
That's the language
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plaintiff obviously put in against Tartan.
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up.
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respect to Northville.
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to amend.
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She put you on notice.
Nothing more turned
She doesn't think any more is going to turn up with
But it doesn't give her automatic leave
It just tells you you're on slightly better footing.
If it turns out there is a station she
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didn't know about, she asked me for leave, she thinks I'm more
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likely to grant it.
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Don't worry about it.
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Okay.
But it's not more judicial right now.
I think we've gotten done what we can.
you all.
(Adjourned)
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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Thank
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