The Metropolitan Museaum of Art and Jan Cowles v. Safflane Holdings, Ltd. et al

Filing 21

ORDER: Since October 31, 2011, the court has been inundated with no less than ten letters from counsel for various parties in these two consolidated cases. Ms. Jan Cowles is seeking a court ruling that, in event of a settlement, she will not be precluded from asserting unrelated claims in an as yet unfiled, future lawsuit. The short answer to this request is that Ms. Cowles seeks an advisory ruling, and we are precluded from offering such relief. We observe that, imbedded in some of the letters to the court, are accusations by counsel for Safflane of misconduct on the part of Ms. Cowles's attorney. We have had occasion before to remark on the unfortunate tendency of counsel to litigate by ad hominem attack, but in any event he proffers no meaningful basis to infer misconduct by his adversary, much less offers a reason for the court to undertake satellite hearings to examine any lawyer's performance of his ethical obligations in these contentious lawsuits. (Signed by Magistrate Judge Michael H. Dolinger on 11/7/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---- --- ----- --------x
SAFFLANE HOLDINGS, LTD. and
ROBERT WYLDE,
ORDER

aintiffs,

11 Civ. 1679 (DLC) (MHD)

-against
GAGOSIAN GALLERY,
CHARLES COWLES,

INC. and

Defendants.
--- ------- ---x
THE METROPOLITAN MUSEUM and
JAN COWLES,
aintiffs,
11 Civ. 3143

against

(DLC) (MHD)

SAFFLANE HOLDINGS, LTD. and
ROBERT WYLDE,
Defendants.
-

-x

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE:

Since October 31, 2011, the court has been inundated with no
less than ten letters from counsel for various parties in these two
consolidated cases.

1

All

were triggered by an application by a

1 These include the following:
letters dated Oct. 31, Nov.
I, Nov. 3 (two letters), and Nov. 4, 2011 from David R. Baum,
Esq.; letters dated Nov. I, Nov. 2 (two letters), and Nov. 3,
2011 from Aaron Richard Golub, Esq.; and a Nov. 3, 2011 letter
from Hollis Gonerka Bart, Esq.

1

plaintiff

court ruling that,
Museum v.

Ms.

one of these cases -

seeking a

Jan Cowles

in the event of a settlement of Metropolitan

Safflane Holdings,

Ltd.,

11 Civ.

3143 and/or Safflane

Holdings, Ltd. v. Gagosian Gallery, Inc., 11 Civ. 1679, she will
not be precluded from asserting unrelated claims

in an as yet

future lawsuit. 2. The apparent trigger for Ms.

unfil

cowles's

demand for such a ruling is her attorney's anticipation, based on
leged comments by another party's counsel,
files such a separate future suit -

that if Ms. Cowles

probably in state court -

the

defendant in that case may seek its dismissal on the basis that two
scheduling orders entered in the current litigation
2011

preclude

claims.

the

assertion by Ms.

Cowles

of

her

May and June
anticipated

short answer to this request is that Ms. Cowles seeks

an advisory ruling, and we are precluded from

fering such reI

f.

As the Second Circuit has recently observed: "[t]here may be
no more unambiguous limitation on the power of the federal courts
than that proscribing the entry of advisory opinions." Crawley v.
United States, 417 F. App'x 94,
follows

95

(2d Cir. April 5, 2011). This

from the constitutional limitation on the authority of

2 Because we have already so ordered a stipulation of
dismissal
the Safflane action, we consider this request only
with respect to any potent
future settlement in the
Metropolitan Museum action.

2

federal

courts

to

"case [s]

or controvers [ies] ,"

and hence

\\' a

federal court [lacks] the power to render advisory opinions. '" U. S.
Nat'l Bank of Or. v. Inde}?
446 (1993)

Ins. Agents of Am. / Inc., 508 U.S. 439,

(brackets in original)

(quoting Preiser v. Newkirk, 422

U.S. 395, 401 (1975)).

Parties
the

include

are

of

course

free,

when

settling

litigation not

already asserted in the case being settled,
while

lawsuit,

to

agreement specific provisions either preserving or

waiving the assertion in future

that,

a

not

yet

asserted,

existed

settlement. Neither of these scenarios,

only of

but

at

the

however,

claims

so of claims
time

of

the

is found here.

Rather, Ms. Cowles is in effect seeking to have this court impose
a

term in a possible settlement agreement by issuing a

ruling

addressing a hypothetical set of claims and an equally hypothetical
motion to

dismiss

in a

future

lawsuit

otherwise have to be made by a

a

ruling that would

fferent court if and when Ms.

Cowles files suit on such claims. Regardless of what we might think
of the hypothesized future defense, this we cannot do. See,

~,

Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. De}?'t of Health &
Human Servs., 607 F.3d 951,

956-57

3

(2d Cir. 2010)

(court may not

issue rulings to head off or enable future claims)

(citing cases)

In the cascade of correspondence that we have received,

3

we

find another request, this time by the Gagosian Gallery, that we
expunge from "the record" a reference by Ms. Cowles's attorney to
the terms of a settlement in the Safflane action, and that it order
Ms. Cowles's counsel not to disclose such terms

the future. The

attorneysl letters to the court are not actually part of the court
filel and hence there is no "record" at present to expunge. In any
event Gagosian's application,

insofar as it targets either prior

correspondence or future statements by Ms. Cowlesls attorneYl fails
because it

is necessarily premised on the

contention that Ms.

Cowlesls lawyer is bound by a confidentiality agreement between the
parties

the Safflane case. Gagosian fails l however l to offer any

basis for the implication that Ms. Cowlesls counsel is bound by the
terms of any such agreement.

In this respect we note

that the

settlement agreement in question was between the litigants in the

3 To the extent that Ms.
Cowles argues that the court should
simply expound on the impact of its own prior orders l that does
not avoid the problem. Scheduling orders speak for themselves and
are not impregnated with unstated intentions regarding their
impact on possible l but as-yet unarticulated l claims. At present
the possible claims to whi
Ms. Cowles adverts have not been
framed in any pleading
any courtl nor has any defense theory
as to the viabili
of such claims been presented in a cognizable
formi their viability can only be tested once the claims have
been assert
and only by the court
which they are invoked.

4

Safflane case, to which Ms. Cowles was not a party, and Gagosian
proffers no evidence that Ms. Cowles (by her attorney-in-fact) or
her counsel was a

signatory to that agreement or was otherwise

bound by a separate confidentiality requirement. 4

Finally, we observe that, imbedded in some of the letters to
the court, are accusations by counsel for Safflane of misconduct on
the part of Ms. Cowles's attorney. We have had occasion before to
remark on the unfortunate tendency of counsel to litigate by ad
hominem attack, but in any event he proffers no meaningful basis to
infer misconduct by his adversary, much less offers a reason for
the court to undertake satellite hearings to examine any lawyer's
performance

of

his

ethi

obligations

in

these

contentious

lawsuits.

Dated: New York, New York
November 7, 2011

MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE

4If this gap in evidence is attributable to inadvertence by
counsel, Gagosian will be free to make a more substantial
application to keep any description of settlement terms under
seal.
5

Copies of the foregoing Order have been mailed today to:

Aaron Richard Golub, Esq.

Aaron Rich Golub, Esquire, PC

34 East 67~ Street

3d Floor

New York, New York 10065

Hollis Anne Bart, Esq.

Withers Bergman, LLP

430 Park Avenue

New York, New York 10022

David Robert Baum, Esq.

SNR Denton US LLP (NY)

1221 Avenue of the Americas

New York, New York 10020

John D. Winter, Esq.

Patterson, Belknap, Webb & Tyler LLP

1133 Avenue of the Americas

New York/ New York 10036

6