In re Herald, Primeo and Thema Funds Securities Litigation

Filing 367

ENDORSED LETTER addressed to Judge Richard M. Berman from Marco E. Schnab dated 1/23/12 re: Counsel for UniCredit S.p.A. writes in opposition to plaintiff's 1/5/12 request that the Court hold a pre-motion conference for his anticipated motion under Rules 59(e) and/or 60 of the FRCP. ENDORSEMENT: Pl's Davis' application dated 1/5/12 is respectfully denied as moot as an appeal already has been filed to the Court of Appeals. Brookhaven v. Donaldson 2007 WL2319141(SDNY). (Signed by Judge Richard M. Berman on 1/25/2012) (mro)

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
FOUR TIMES SQUARE
NEW YORK 10036-6522

BOSTON
CHICAGO
HOUSTON
LOS ANGELES
PALO ALTO
SAN FRANCISCO
WASHINGTON, D.C,
WILMINGTON

TEL: (212) 735.;:3000
FAX: [phone]
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Hon. Richard M. Berman

United States District Judge

United States Courthouse
500 Pearl Street

New York, NY 10007

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In re Herald, Primeo and Thema Funds
Securities Litigation, Master Docket No. 09 Civ. 289

Dear Judge Berman:
We represent defendant UniCredit S.p.A. and certain of its affiliates in
the captioned litigation. With the consent of the other defendants in this action, we
respectfully write in opposition to plaintiff Neville Seymour Davis's January 5, 2012
request that the Court hold a pre-motion conference for Mr. Davis's anticipated motion
under Rules 59(e) and/or 60 of the Federal Rules of Civil Procedure to amend the
December 12, 2011 judgment in this case (the "Judgment") or, in the alternative,
amend the Judgment sua sponte to add language derived from Rule 54(b) stating that
the Judgment is "final" and "no just reason" exists for a delay of any appeal from the
Judgment.'
Mr. Davis's request is both improper and moot because the Judgment is
already final and he was plainly not delayed (or prevented) from appealing, as he filed

No other plaintiff has requested such relief.

Hon. Richard M. Berman
January 23,2012
Page 2

a Notice of Appeal from the Judgment on January 11, 2012. (See Docket No. 663.)
Other plaintiffs/appellants have done likewise. (See Docket Nos. 362, 364.)
As Mr. Davis himself concedes, the Judgment severed all the dismissed
claims in this action from the only claims that remain pending (i. e., the claims against
the Madoff Defendants). See Civil Judgment entered December 12, 2011 (Dkt. No.
360). In this Circuit, it has long been the rule that "appeal from a judgment on a
validly severed . . . claim may be timely taken as of right notwithstanding the
pendency of the remaining claims or counterclaims[.]" Spencer, White & Prentis Inc.
of Conn. v. Pfizer Inc., 498 F.2d 358,361 (2d Cir. 1974); see also Verzani v. Costco
Wholesale Corp., 387 F. App'x 50, 52 (2d Cir. 2010) ("Because Robert Verzani has
been severed from the action initiated by his son, he may appeal the dismissal of his
claim . . . even though no final judgment has issued in the original lawsuit. "); accord
Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 179 n.4 (1955) (liThe concept
of finality does not require a judgment completely disposing of every matter or issue
that arises in the litigation. Some collateral issues may become so severed ... as to
permit an appeal."), overruled on other grounds by Gulfstrean Aerospace Corp. v.
Mayacomas, 485 U.S. 271 (1988); 7 Charles Alan Wright, Arthur R. Miller, Mary Kay
Kane & Richard L. Marcus, Fed. Practice & Procedure § 1689 (3d ed., 2011 Supp.)
("Once a claim has been severed ..., it proceeds as a discrete unit with its own final
judgment, from which an appeal may be taken.")?
The Judgment is already final and Mr. Davis has already filed an
appeal. There is simply no reason to amend the Judgment, as this is unnecessary and
may create procedural complications on an appeal Mr. Davis has already taken. Mr.
Davis's request should be denied.

cc:
2

All counsel of record (bye-mail)
Unlike the authorities cited above, the cases cited by Mr. Davis do not address the
question whether the severance of all pending claims in an action renders adjudication of
dismissed claims "final" for purposes of appeal and, therefore, are not relevant to Mr.
Davis's request. See, e.g., Ginett v. Computer Task Grp., Inc., 962 F .2d 1085 (2d Cir.
1992) (affirming district court's Rule 54(b) certification of order as "final" in case where
no claims had been severed).