Ecogensus LLC et al v. Pacella et al

Filing 142

ORDER denying as moot 41 Motion to Compel Arbitration; denying without prejudice 45 Letter Motion to Seal; denying without prejudice 46 Motion for Sanctions; denying as moot 47 Motion for Sanctions; denying as moot 58 Motion to Dismis s; denying as moot 65 Motion to Dismiss; denying without prejudice 72 Letter Motion to Seal; denying without prejudice 83 Letter Motion to Seal; denying without prejudice 90 Letter Motion to Seal; denying without prejudice 111 Letter Motio n to Seal; denying without prejudice 116 Letter Motion to Seal; denying without prejudice 120 Letter Motion to Seal; denying without prejudice 134 Letter Motion to Seal. Simply put, the current state of the record with regard to sealing is a me ss. As such, it is hereby ORDERED that all motions on the docket requesting sealing are DENIED without prejudice, and the motion to seal the FAC is DENIED without prejudice. IT IS FURTHER ORDERED that Plaintiffs may file a renewed motion to seal the First Amended Complaint ("Renewed Motion to Seal") within thirty (30) days of this Order. Plaintiffs are ORDERED to file their Renewed Motion to Seal in accordance with my Individual Rules & Practices as they pertain to sealing. See Individ ual Rule 5(B). The Renewed Motion to Seal, by itself, and without reference to prior filings, should clearly explain any bases for seeking leave to file under seal. To the extent the Renewed Motion to Seal references, quotes, or otherwise incorporate s documents that Plaintiffs believe provide a basis for sealing or redaction, Plaintiffs must attach those documents to the Renewed Motion to Seal as exhibits. If Plaintiffs are unable to attach any such document to the Renewed Motion to Seal as exhi bits, the Renewed Motion to Seal must explain why they are unable to do so. IT IS FURTHER ORDERED that if Plaintiffs do file a Renewed Motion to Seal, within fourteen (14) days of the filing of the Renewed Motion to Seal, any party or interested thir d-party opposing sealing shall file a letter explaining why the sealing or redactions sought by Plaintiffs is improper. If more than one party or interested third-party opposes the sealing treatment Plaintiffs request for the RFAC, they are encourage d to meet and confer so that they can file one joint letter. IT IS FURTHER ORDERED that documents currently filed under seal will remain filed under seal until further order of this Court. The Clerk of Court is respectfully requested to close the ope n motions at docket numbers 45, 46, 72, 83, 90, 111, 116, 120, and 134, all of which pertain to sealing. The Clerk of Court is also directed to close the open motions at docket numbers 41, 47, 58, and 65, as all of these pertain to the original compl aint and are thus moot by virtue of the filing of the FAC. The Clerk of Court is further directed that the motions requesting disposition on the FAC at docket numbers 94, 98, 99, 112, 117, and 121shall be held in abeyance until issues concerning the sealing of the FAC is resolved. Once such issues are resolved, I will enter an order providing the parties with further guidance as to what, if any, sealing need be done in connection with the motions held in abeyance. SO ORDERED.. (Signed by Judge Vernon S. Broderick on 9/9/2021) (kv) Modified on 9/9/2021 (kv).

Case 1:20-cv-03629-VSB Document 142 Filed 09/09/21 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
:
ECOGENSUS, LLC, et al.
:
:
Plaintiffs,
:
:
- against :
:
:
MATTHEW PACELLA, et al.,
:
:
Defendants. :
---------------------------------------------------------- X

9/9/2021

20-CV-3629 (VSB)
ORDER

VERNON S. BRODERICK, United States District Judge:
From July 31, 2020 to August 14, 2020, the parties to this action requested to file
multiple documents under seal. (Docs. 45, 72.) In an attempt to resolve these rather extensive
sealing requests, I issued an order on August 17, 2020. (Doc. 79 (“Order”).) The Order directed
the parties to (1) meet and confer with each other, and with any interested third parties, about
how sealing or redaction should work in this case; (2) explain why any documents provisionally
filed under seal should remain under seal; (3) explain why, for any documents that should remain
under seal, it would not be sufficient to redact those documents instead; and (4) state any
disagreements as to the requested sealing or proposed redactions. (Id.) It was my hope that the
parties would submit something sufficiently clear to allow me to resolve sealing in this matter.
Instead, on August 28, 2020, the parties submitted a 36-page seriatim letter with
competing statements of governing law, as well as competing positions on how sealing should be
handled (“Sealing Letter”). (Doc. 100.) Plaintiffs used the Sealing Letter largely to advocate for
sealing, while Defendants “generally t[ook] no position on whether sealing is appropriate” and
instead objected to what they called “Plaintiffs . . . us[ing] th[e] [letter] to advance their false

Case 1:20-cv-03629-VSB Document 142 Filed 09/09/21 Page 2 of 4

theory” of the case. (Id.) Defendants found it necessary to state repeatedly that they “t[ook] no
position on” many of the “redactions” sought by Plaintiffs, (e.g., id. at 35), despite the fact that
my Order directed the parties only to provide their bases of disagreement. (See generally Order.)
Complicating the issue, the Sealing Letter arguably became moot before it was even
filed: on August 26, 2020, Plaintiffs filed a First Amended Complaint (Doc. 92 (“FAC”)) in
redacted form. The FAC was accompanied by another letter motion to seal, (Doc. 90), which
argues that sealing is appropriate based upon references to earlier letters filed by the parties, and
by vague references to agreements, documents, and “[e]mbarrassing material,” (id.). Plaintiffs
did not bother to provide the agreements that purportedly gave basis for sealing the FAC. In
response to the motion to seal the FAC, certain Defendants filed a letter objecting to some (but
not all) of the redactions in the FAC on the grounds that Plaintiffs had already publicized the
materials in question by including them in their original complaint. (Doc. 103.)
In spite of these ongoing, unresolved disputes over sealing, other parties have filed
motions to seal their responses to the FAC, not because they believed sealing proper, but because
their responses “contain[] references to material” that was provisionally filed under seal. (E.g.,
Doc. 111; Doc. 116.) To complicate matters further, the parties filed other competing motions to
seal and letters responding to those motions. (See, e.g., Doc. 120; Doc. 124; Doc. 125.)
Simply put, the current state of the record with regard to sealing is a mess. As such, it is
hereby
ORDERED that all motions on the docket requesting sealing are DENIED without
prejudice, and the motion to seal the FAC is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiffs may file a renewed motion to seal the First
Amended Complaint (“Renewed Motion to Seal”) within thirty (30) days of this Order.

2

Case 1:20-cv-03629-VSB Document 142 Filed 09/09/21 Page 3 of 4

Plaintiffs are ORDERED to file their Renewed Motion to Seal in accordance with my Individual
Rules & Practices as they pertain to sealing. See Individual Rule 5(B).1 The Renewed Motion to
Seal, by itself, and without reference to prior filings, should clearly explain any bases for seeking
leave to file under seal. To the extent the Renewed Motion to Seal references, quotes, or
otherwise incorporates documents that Plaintiffs believe provide a basis for sealing or redaction,
Plaintiffs must attach those documents to the Renewed Motion to Seal as exhibits. If Plaintiffs
are unable to attach any such document to the Renewed Motion to Seal as exhibits, the Renewed
Motion to Seal must explain why they are unable to do so.
IT IS FURTHER ORDERED that if Plaintiffs do file a Renewed Motion to Seal, within
fourteen (14) days of the filing of the Renewed Motion to Seal, any party or interested thirdparty opposing sealing shall file a letter explaining why the sealing or redactions sought by
Plaintiffs is improper. If more than one party or interested third-party opposes the sealing
treatment Plaintiffs request for the RFAC, they are encouraged to meet and confer so that they
can file one joint letter.
IT IS FUTHER ORDERED that documents currently filed under seal will remain filed
under seal until further order of this Court.
The Clerk of Court is respectfully requested to close the open motions at docket numbers
45, 46, 72, 83, 90, 111, 116, 120, and 134, all of which pertain to sealing. The Clerk of Court is
also directed to close the open motions at docket numbers 41, 47, 58, and 65, as all of these
pertain to the original complaint and are thus moot by virtue of the filing of the FAC. The Clerk
of Court is further directed that the motions requesting disposition on the FAC—at docket

1

Any party who seeks leave to file under seal is cautioned to review filings other parties have made before me when
they sought to file documents under seal. See, e.g., Letter Motion to Seal, SmartStream Techs., Inc. v. Chambadal,
17-cv-2459-VSB (S.D.N.Y. Aug. 25, 2017), Doc. 41; Letter Motion to Seal, Intl’l Flight Resources, LLC v. Aufiero
et al., 21-cv-3029-VSB (S.D.N.Y. June 25, 2021), Doc. 23.

3

Case 1:20-cv-03629-VSB Document 142 Filed 09/09/21 Page 4 of 4

numbers 94, 98, 99, 112, 117, and 121—shall be held in abeyance until issues concerning the
sealing of the FAC is resolved. Once such issues are resolved, I will enter an order providing the
parties with further guidance as to what, if any, sealing need be done in connection with the
motions held in abeyance.

SO ORDERED.
Dated: September 9, 2021
New York, New York
______________________
Vernon S. Broderick
United States District Judge

4