Innovatus Capital Partners, LLC v. Neuman et al

Filing 315

SCHEDULING ORDER: Fact Discovery due by 3/18/2022. Expert Discovery due by 7/22/2022. Motions due by 9/16/2022., Responses due by 9/30/2022, Replies due by 10/14/2022. SO ORDERED. (Signed by Judge Louis L. Stanton on 3/18/2022) (rro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ELECTRO~ICALLY FILED
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INNOVATUS CAPITAL PARTNERS, LLC,
Plaintiff,
Case No . 1: 18-cv-04252-LLS
- against-

JONATHAN NEUMAN, ANTONY
MITCHELL, RITZ ADVISORS, LLC, GREG
WILLIAMS, DARYL CLARK, AND
AMANDA ZACKMAN,
Defendants.

-----------------------------------··-------------------X
Case No. 1: 18-cv-07142-LLS

MV REALTY, PBC, LLC,
Plaintiff:
- against-

INNOV A Tl.JS CAPl :-AL

O .'.

p_
Tls.TJ:<P5 , LLC,

Defendant.

----------------------------------------------------------x
ilftl(ilPf"JMitlfSCHEDULING ORDER1

'

Date

Event

•
Friday, March 18,

1

2022

Close of fact discovery (with the exception oflnnovatus' responses to
remaining Interrogatories and the Rule 3o(b)(6) depositions of
Innovatus, Redibs, and 777 Partners)

lnnova tus has fil ed a motion to stay proceedings until the resolution of its currently pending
appeal.· The submission of this proposed schedul e is not intended to waive the motion to stay.

Friday, May 13, 2022

•

Opening expert reports

Friday, June 24, 2022

•

Rebuttal expert reports

Friday, July 22, 2022

•

Close of expert discovery

•

Plaintiff serves proposed findings of ultimate fact per Paragraphs
3(A)(1) of Judge Stanton's Standing Order (see Exhibit A)

•

Plaintiff and Defendants serve:

Friday, August 12, 202~

list of fact witnesses and summaries
2. exhibit lists
3. deposition designations for any witness that the party desires to
put on using deposition transcript
1.

Friday, August 19, 2022

•

Defendants serve proposed findings/contentions per Paragraph
3(A)(2) of Judge Stanton's Standing Order (see Exhibit A)

Friday, September 2, 2022

• Plaintiff and Defendants serve objections to witness lists, deposition
designations, and proposed trial exhibits
Friday, September 16, 2022

• Pretrial motions (if any)

•

Plaintiff serves:

i

propc-sed findings /contentions per Paragraph 3(A)(3) of Judge
Stanton's Stanrlin;s Order (see Exhibit A)
2. draft joint PTO pet i-'aragraph 3(A)(4) of Judge Stanton's
Standing Order (see Exhibit A)
3. sworn expert statement per Paragraph 3(A)(4) of Judge
Stanton's Standing Order (see Exhibit A)
4. combined exhibit list (noting each party's objections if
applicable)

1.

Friday, Septerr.ber 23, 2022

•

Oppositions to pretrial motions (if any)

•

Friday, September 30, 2022

Defendants serve:
(revised) draft joint PTO per Paragraph 3(A)(4) of Judge
Stanton's Standing Order (see Exhibit A)
2. sworn expert statement per Paragraph 3(A)(4) of Judge
Stanton's Standing Order (see Exhibit A)
3. combined exhibit list (\,vith any revisions)

1.

Friday, October 7, 2022

Friday, October 14, 2022

•

Replies in support of pretrial motions (if any)

2

:

•

Parties file per Paragraph 3(A)(5) of Judge Stanton's Standing Order
(see Exhibit A)
PTO
2. Trial briefs and proposed findings of fact and conclusions of law
(including regarding evidentiary disputes) per Paragraph
(3)(B)(2) of Judge Stanton's Standing Order
3. Sworn expert direct testimony/statement (if applicable)

1.

Monday, October 17, 2022

TBD

•

Final Pre-Trial Conference date to be set by the Court

TED

•

Trial date to be set by the Court

By: Isl Jason C. Raofjeld

Dated: March 18, 2022

Jason C. Raofield (pro hac vice)
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001 -4956
Tel. [phone]

Attorney for Jonathan Neuma n, Antony
Mitchell, Ritz Advisors, LLC, Daryl Clark,
Greg Williams, Amanda Zachman, and MV
Realty, PBC, LLC

By: Isl Michael H. McGinley
Michael H. McGinley (pro hac vice)
DECHERTLLP
2929 Arch St.
Philadelphia, PA 19104
Tel. [phone]

#

Attorney for Jnnovatus Capital Partners, LLC

SO ORDERED this 1i_•Day of March 2022:

Louis L. Stanton
United States District Judge
3

Re v ised 8 /1/ 2 0 1 8

INDIVIDUAL PRACTICES OF JUDGE LOUIS L. STANTON
Unless otherwise ordered by Judge Stanton , matters
before Judge Stanton shall be conducted in accordance with
the following practices :

1.

Communications With Chambers

A. Letters.
Except as otherwise provided below ,
communications with chambers shall be by letter , with copies
simultaneously delivered to all counsel . Copies of
correspondence between counsel shall not be sent to the Court .
B. Telephone Calls . In addition to Paragraph l(D)
below , telephone calls to chambers are permitted.
For
matters other than docketing , scheduling or calendaring ,
call chambers at (212)805 - 0252 .
C.
Faxes & Emails.
permitted .

Faxes and emails to chambers are not

D. Docketing, Scheduling, and Calendar Matters.
For
docketing , scheduling and calendar matters , call chambers at
[phone].
E. Requests for Adjournments or Extensions of Time . All
requests for adjournments or extensions of time must state
( 1) the original date , (2) the number of previous requests
for adjournment or extension , (3) whether these previous
requests were granted or denied , and (4) whether the
adversary consents , and , if not , the reasons given by the
adversary for refusing to consent .
If the requested
adjournment or extension affects any other scheduled dates , a
proposed Revised Scheduling Order (reflecting only business
days) must be attached .
If the request is for an adjournment
of a court appearance , absent an emergency it shall be made
at least 48 hours prior to the scheduled appearance.
F.
Inquiries.
If a matter is not decided within sixty
days of the time it is fully submitted, or its pendency
undecided creates particular problems for any party , counsel
may write so advising the court .
2.

Motions

A.
Pre-Motion Conferences in Civil Cases . For discovery
motions , follow Local Civil Rule 37 . 2 . For motions other than
discovery motions , a pre - motion conference with the court is
1

required before making any motion , except applications for
temporary restraining orders or for injunctive relief , motions
made by persons in custody , motions to dismiss in lieu of an
answer , motions for reduction of sentence , motions for
reargument , motions to affirm or vacate an arbitration award ,
Pro Hae Vice motions , and appeals from a magistrate judge ' s
rulings . To arrange a pre - motion conference , the moving party
shall submit a letter not to exceed three pages in length
setting forth the basis for the anticipated motion .
B.
Courtesy Copies . Courtesy copies of all motion
papers, marked as such , should be submitted to chambers at
the time papers are served.
[C.

Memoranda of Law.

Omitted . ]

D.
Filing of Motion Papers.
filed promptly after service .

Motion papers shall be

E . Oral Argument on Motions.
Parties may request oral
argument by letter at the time their moving or opposing or
reply papers are filed . The court will determine whether
argument will be heard and , if so , will advise counsel of the
argument date .
F.
Paragraphs A and D above do
motions described in Federal Rule of
4 (a) (4) (A). A pre - motion conference
making such motions , which should be

NOT apply to any of the
Appellate Procedure
is not required before
filed when served .

G.
In all submissions to Judge Stanton where exhibits
are attached , the exhibits shall be separated by index tabs so
that the particular exhibit may be readily located within the
group of exhibits .
3.

Pre-trial Procedures
A.

Joint Pre-trial Orders in Civil Cases.

Subsequent to the completion of discovery, parties in civil
actions will be required to file a pre - trial order which
shall conform to the guidelines set forth in this memorandum.
At trial , the parties may only offer proof with respect to
the disputed facts contained in the pre - trial order. The
agreed facts will automatically become part of the record.
The time limits for the filing of the pre - trial order will
be established by the Court at a pre-trial conference .
Since Judge Stanton ' s procedure differs substantially from
that of other judges of this Court , counsel should review it
carefully before beginning to prepare their order. A sample
2

pre-trial order has been annexed as a guide at the end of
these rules.
Judge Stanton's procedure is as follows:

1)
Promptly after the completion of discovery,
plaintiff shall serve on defendant a set of proposed findings
of ultimate fact , without evidentiary detail, which would be
sufficient to sustain a judgment for plaintiff if these facts
were ultimately found to be true. Twenty findings should be
sufficient in most cases .
2)
Following the receipt of plaintiff's proposed
findings :
a.
Defendant shall inform plaintiff which proposed
findings are contested and which are not contested .
Disagreements should be on substance only, not on form
or wording .
b.
Defendant shall serve on plaintiff proposed
counter - findings of ultimate fact with respect to the
contested findings.
With each counter - finding,
defendant shall list the evidentiary source which
supports his or her contentions , such as the page
number of a deposition , name of a witness , exhibit or
photograph .
c.
Defendant shall also serve proposed findings on
affirmative defenses and other subject matter not
covered by plaintiff. Defendant ' s concessions, counter findings , and new proposed findings should be
sufficient to sustain judgment in defendant ' s favor if
found to be true .
3)
Following receipt of defendant's counter - findings
and new proposed findings :
a.
Plaintiff shall inform defendant which of
defendant's proposed findings are contested and which
are not contested. With respect to those which
plaintiff contests, defendant shall list the
evidentiary sources which support his or her
contentions .
Plaintiff must then support each of the initially
b.
proposed findings which defendant disputes with an
evidentiary source , citing the source which supports
each proposed finding immediately after it .

3

c.
Plaintiff shall also add reply counter-findings to
defendant ' s new contentions with appropriate evidentiary
support .
At this point the parties should meet to collate the
4)
various disputed and undisputed proposed findings , submitting
to the court ONE CONSOLIDATED pre - trial order signed by all
the parties to the action . This pre - trial order will consist
of (1) a section containing agreed findings of fact , (2) a
section containing plaintiff ' s proposed findings of fact with
evidentiary sources , (3) a section containing defendant ' s
proposed findings of fact listed immediately after the proposed
finding it supports with evidentiary sources , (4) a joint list
of expert witnesses , identified by name , and the party calling
said witness(es) , (5) a list of premarked joint trial exhibits
which the parties agree may be received in evidence , (6) a list
of other premarked exhibits which the parties do not agree may
be received in evidence , together with the basis for objection
and citation to the applicable Federal Rule of Evidence , and
(7) a section indicating whether the action is a jury or
nonjury matter and estimating the trial time which each party
wi ll require.
When expert witnesses will be used to support disputed
findings , the party who will call the expert must submit
to his adversary and file with the Court on or before the
submission date of the pre - trial order , a sworn
statement , executed by the expert witness, summarizing
his or her education and professional background and his
or her direct testimony . References to any documents or
sources on which the expert will rely must also be
included . When the expert is a doctor , however , the
medical report will be accepted in lieu of an affidavit .
5)
Finally , with the pre - trial order the parties shall
each submit trial briefs on contested issue(s) of law,
requests to charge , proposed voir dire , and copies of the
expert ' s sworn statements , if applicable . Trial briefs
should also identify and address any evidentiary issue(s)
l i kely to arise at trial . Briefs should be concise ,
declaratory statements of the law without unnecessary detail
or recitation of facts . Each statement of law in the briefs
must be supported by citation to appropriate authority.
B.

Procedure in Cases set for Trial before Judge Stanton
(Both Civil and Criminal)

Counsel with either jury or bench cases set for trial
are to comply with the following procedures :
The court
1) Trial Date. All trial settings are firm.
clerk will be happy to answer your questions as to how the
schedule appears , but reliance upon such information will not
4

justify a continuance . Counsel with out - of - town witnesses or
other special scheduling problems may request appropriate
consideration by presenting an application well before the
trial date .
2)
Pre-trial Submissions.
I n jury trials , counsel are
required to submit at the time the joint pre - trial order is
filed (1) a brief discussing the issues to be tried (2)
proposed voir dire questions and a list of individuals ,
companies or other entities that may appear as witnesses or
otherwise be referred to during the trial , (3) proposed jury
charges . In bench trials , unless otherwise instructed , counsel
are required to submit proposed findings of fact and
conclusions of law with their trial briefs .
3) Exhibits . Counsel should stipulate to the
foundation for all exhibits whose authenticity is not
questioned . Trial time will not be wasted on unnecessary
foundation testimony .
All exhibits should be marked prior to introduction .
No trial time will be used for this purpose .
At the beginning of the trial , a complete extra set
of documentary exhibits should be handed to .the Judge for his
use during the trial . Upon application , the court may excuse
a party from this requirement where it would be burdensome .
4)
Sidebar Conferences. Sidebar conferences will be
kept to a minimum . This court agrees with Standard 5 . 9 of
the Standards suggested by the American Bar Association
Advisory Committee on the Judge ' s Function (1972)
The trial Judge should be alert to
the distracting effect on the jury
during the taking of evidence of
frequent bench conferences between
counsel and the judge out of the
hearing of the jury , and should
postpone the requested conference to
the next recess except when an
immediate conference appears necessary
to avoid prejudice.
5)

Procedure during Trial .

a.
Please be on time for each court session . If you
have matters in other courtrooms , arrange in advance to
have them continued or have a colleague handle them for
you.
b.
Please stand whenever you address the court .
i ncludes the making of objections .
5

This

c.
Stand a respectful distance from the jury at all
times .
d.
In your opening statement to the jury , do not argue
the case and do not discuss law . Confine yourself to a
concise summary of the important facts . Do not describe
in detail what particular witnesses will say . Unless
the case is unusually complex , each party will be
limited to 10 minutes.
e.
Please stand when you question witnesses. (Counsel
with physical disabilities will be excused from this
requirement . ) Do not pace about the courtroom when
questioning witnesses. This distracts the jury and
wastes time .
If you intend to question a witness about a group of
f.
documents , avoid delay by having all the documents with
you when you start the examination .
g.
When you object , make your objection short and to the
point . Do not argue the objection in the presence of the
jury , and do not argue with the ruling of the court in the
presence of the jury. Do not make motions (e . g . , a motion
for a mistrial) in the presence of the jury . Such matters
may be raised at the first recess .
h.
Do not face or otherwise appear to address yourself
to jurors when questioning a witness.
i .
The jury should hear the instructions on the law of
the case from the court , an impartial source . In your
final argument , you may tell the jury what you believe
the substance of the court ' s instruction on a particular
subject will be , but do not read or quote any
instruction.
LOUIS L . STANTON

UNITED STATES DISTRICT JUDGE

6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

- -x
ABC LEATHER DISTRIBUTORS , INC .,
Plaintiff ,

CONSENT PRE - TRIAL ORDER

- against -

Civ .

(LLS)

THE SUNNYSIDE BANK , N.A .,
Defendant .

- - - - - - - - - - - - - - - - - -x

The parties , having exchanged proposed findings
and counter - findings of fact in accordance with the pre trial procedures of United States District Judge Louis L .
Stanton , hereby submit the following:

A. Agreed Findings of Fact
1 . Plaintiff (" ABC " ) is a New Jersey corporation
engaged in the business of importing , processing and selling
leather , having its principal place of business in Jersey
City , New Jersey .
2 . At all relevant times herein , ABC ' s president
was one Samuel Smith .
3 . Defendant (" Sunnyside " ) is a national banking
association engaged in the business of banking in the state
of New York , having its principal place of business in New
York , New York .

7

4 . In or about January 1975 , ABC opened a checking
account with Sunnyside at its main branch in New York City .
5 . One of ABC ' s suppliers after January 1975
was a Brazilian export company , Brazilian Leather
Exports

( " BLE " ) .
6 . BLE ' s bank in Brazil was the Commercial

Bank of Brazil (" CBB " ) .
7 . On or about December 1 , 1975 , on written
application by ABC , Sunnyside opened an irrevocable
documentary letter of credit to the benefit of CBB in Brazil
(the " CBB credit " ) in the amount of $700 , 000 and with an
expiration date of June 1 , 1976 .

A copy of the CBB credit

will be marked as Joint Trial Exhibit 1 .
8 . On or about December 8 , 1975 , ABC executed a
dema n d note in t he amount of $700 , 000 to the benefit of
Sunnyside to cover the CBB credit .

A copy of this demand

note will be marked as Joint Trial Exhibit 2 .
9 . The business purpose of the CBB credit , as
communicated to Sunnyside , was to induce CBB to provide
inventory financing to ABC ' s Brazilian supplier , BLE.
1 0 . Sunnyside personne l drafted the wording of
the CBB credit .
11 . On April 13 , 1976 Jonathan Jones of Sunnyside's
International Department telephoned Samuel Smith with regard
to a telex .

A copy of the telex will be marked as Joint

Trial Exhibit 3 .

8

12 . On or about April 20 , 1976 , Sunnyside remitted
payment of $700 , 000 to CBB .
13 . On or about April 20 , 1976 , Sunnyside sent an
advice of payment to ABC .

This advice of payment will be

marked as Joint Trial Exhibit 4.
14 . ABC did not receive any documentation from
Sunnyside with respect to the drawing of the CBB credit
until the commencement of this action .
15 . On or about May 1 , 1976 Sunnyside called
the $700 , 000 demand note and demanded payment in full .
ABC made payment in full on or about May 31 , 1976.
16. In August 1976 Sunnyside received documents
from CBB purporting to fulfill the documentary requirements
of the CBB credit .

These documents will be marked

respectively as follows : a signed sight draft for $700 , 000
dated March 21 , 1976 -- Joint Trial Exhibit SA ; a bank
statement relating to BLE ' s accounts at CBB -- Joint Tr i al
Exhibit SB ; and two telegrams from CBB to BLE -- Joint Trial
Exhibits SC , SD .

B . Plaintiff ' s Proposed Findings of Fact
1 . ABC communicated to Sunnyside in April 1976
that it did not intend to be obligated under the CBB credit
after the expiration date of June 1 , 1976 and unless the
requisite documents were received .

(Testimony of Samuel

Smith; text of CBB credit , Joint Trial Exhibit 1) .

9

2 . After April 13 , 1976 ABC made continued demands
on Sunnyside for the documents called for under the CBB
credit .

Documents reflecting such demands will be marked as

Plaintiff ' s Exhibits 1 ,

2 , and 3 .

(Testimony of Samuel

Smith ; Deposition of Jonathan Jones , pp . 31 - 33 ; Telegrams
from ABC to Sunnyside , Plaintiff ' s Exhibits 1 , 2 , and 3).
3 . Sunnyside did not request on April 13 , 1976 or
thereafter a waiver of the documentary requirements of the
CBB credit and no s u ch waiver was ever given .

(Testimony of

Samuel Smith ; Deposition of Jonathan Jones , pp. 38 - 41 ;
Deposition of Harvey Harris , vice - president of Sunnyside ' s
Commodity Finance Division , pp . 102 - 06) .
4 . In March and April of 1976 BLE was not in
material breach of any of its obligations to CBB .
(Testimony of Daniel Darnel , former president of BLE)

C . Defendant ' s Proposed Findings of Fact
1 . During the telephone conversation between Smith
and Jones with regard to the telex received on April 13 ,
1976 , Jones read the entire telex to Smith and advised Smith
that the documentary requirements had not been received.
(Testimony of Jonathan Jones ; Deposition of Samuel Smith ,
pp . 5 9- 62) .
2 . By word and conduct , ABC waived its right to
insist that the required documents be received before
payment was made under the CBB credit.
10

(Testimony of

Jonathan Jones; Testimony of Frederick Foster; CBB credit,
Joint Trial Exhibit 1; CBB telex , Joint Trial Exhibit 3;
Advice of payment , Joint Trial Exhibit 4; Smith letter to
Jones dated April 30 , 1976 , Defendant's Exhibit A) .

3 . BLE had failed to repay amounts due CBB and was
in default at the time CBB drew under the CBB credit .
loan application form,

(BLE

Joint Trial Exhibit 6; BLE bank

statement , Joint Trial Exhibit 5B ; two telegrams from CBB to
BLE , Joint Trial Exhibits SC and 5D; Testimony of Ricardo
Ramirez , vice - president of CBB).

D. Expert Witnesses
The plaintiff does not intend to call upon any
expert witness to testify.
The defendant intends to call upon the following
expert witness to testify :
1. Frederick Foster

E . Premarked Joint Trial Exhibits
The parties hereby stipulate and agree that the
following exhibits may be received , with the Court's
approval , in evidence at trial as premarked joint trial
exhibits :
1.

CBB letter of credit

2.

$700 , 000 demand note to benefit of Sunnyside

3.

CBB telex to Sunnyside

11

4.

Advice of payment from Sunnyside to ABC

SA . Signed draft for $700 , 000
SB . BLE bank statement
SC . Telegram from CBB to BLE dated Feb. 21, 1976
SD . Telegram from CBB to BLE dated March 10 , 1976
F. Premarked Disputed Exhibits
The parties have not been able to agree on the
admissibility of the following premarked exhibits which they
intend to offer at trial.
The plaintiff will offer the following exhibits to
be received in evidence , to which the defendant objects:
1.

Telegram from ABC to Sunnyside dated April
15 , 1976
(Defendant objects on grounds of
authenticity pursuant to Fed. R. Evict.
901 . )

2.

Telegram from ABC to Sunnyside dated April
22 , 1976
(Defendant objects on grounds of
authenticity pursuant to Fed . R . Evid.
901.)

3.

Telegram from ABC to Sunnyside dated May 5 ,
1976
(Defendant objects on grounds of
authenticity pursuant to Fed . R. Evict.
901 . )

The defendant will offer the following exhibit to
be received in evidence , to which plaintiff objects :
A . Smith letter to Jones dated April 30 , 1976

12

(Plaintiff objects on grounds of hearsay
pursuant to Fed . R . Evict . 802).

G . Type of Trial and Estimated Length
1 . Plaintiff has made a demand for trial by jury .
2. Plaintiff estimates that it will take half a
day to present its case.
3. Defendant estimates that it will take half a
day to present its case.
Dated :

New York , New York
(Date)
FIRM NAME

By
(Signature)
Address and telephone No .
Attorneys for Plaintiff(s)
FIRM NAME

By
(Signature)
Address and telephone No .
Attorneys for Defendant(s)

So Ordered .
Dated :

New York , New York
(Date)

U . S. D. J .

13