Fugate v. Kinicki et al

Filing 59

ORDER: denying 58 Letter Motion to Stay re: 58 JOINT LETTER MOTION to Stay of Discovery Proceedings During Pendency of Motions to Dismiss. addressed to Judge Lorna G. Schofield from Plaintiff's and Defendants' Counsel dated 05/19/ 2023. Application DENIED. As explained in Individual Rule III.C.2, the Court does not stay discovery during the pendency of a motion to dismiss absent extraordinary circumstances. The parties have not presented extraordinary circumstances here. By Ju ne 6, 2023, Defendants shall file a letter stating the substance of any contemplated counterclaims. By June 9, 2023, Plaintiff shall file a response stating whether such counterclaims expand the scope of discovery beyond Plaintiff's claims, and on what issues, and whether Plaintiff seeks to expand the scope of discovery to include such issues. Defendants shall file a reply to Plaintiff's letter June 13, 2023. SO ORDERED. (Signed by Judge Lorna G. Schofield on 5/22/2023) (ama)

Case 1:22-cv-10483-LGS Document 59 Filed 05/22/23 Page 1 of 5

May 19, 2023

VIA ECF
Hon. Lorna G. Schofield
United States District Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:

Mel Fugate v. Angelo J. Kinicki and McGraw-Hill Education Holdings, LLC,
22 Civ. 10483 (LGS) (SN) –
Joint Letter Motion Requesting Stay of Discovery Proceedings During
Pendency of Motions to Dismiss

Dear Judge Schofield:
Plaintiff Mel Fugate (“Fugate”) and Defendant Angelo Kinicki (“Kinicki”) and McGrawHill Education Holdings, LLC (“McGraw-Hill”) (together, the “parties”) jointly request that the
Court stay discovery and other proceedings in this case (other than the completion of briefing on
the Defendants’ Motions to Dismiss) until the Court decides those Motions. As discussed below,
the purpose of the requested stay is so that this case may proceed in an orderly fashion, preserve
the resources of the parties, and for judicial economy.
The parties certify that they have conferred regarding the relief requested by this Letter
Motion, and having agreed, jointly submit it.
A.

Status of the Motions to Dismiss, the Mediation by Magistrate Judge Netburn, and
Discovery

The Motions to Dismiss: On April 28, 2023, Kinicki and McGraw-Hill each filed a
Motion to Dismiss Fugate’s Complaint. These Motions to Dismiss raise issues, among other
things, concerning (1) whether Defendant Kinicki may be found liable for tortiously interfering
with a contract to which he is a party, (2) the application of an integration clause in one of the
parties’ agreements to preclude the enforcement of another of the parties’ alleged agreements,
and (3) the ability of McGraw-Hill under one of the parties’ agreements to take the action it did
(the “Motions to Dismiss Issues”). On May 19, 2023, Fugate filed an opposition to the Motions
to Dismiss. Defendants’ replies are due on May 26, 2023.
The Mediation by Magistrate Judge Netburn: On May 10, 2023, the parties and their
counsel participated in a half-day mediation with Magistrate Judge Netburn. While the
mediation was helpful, the parties were unable to resolve their dispute. Each of the parties
expressed a desire to reach a settlement without further litigation. However, what became clear
is that there will be no meaningful opportunity to resolve these matters by way of settlement until
the Court decides the Motions to Dismiss Issues.

Case 1:22-cv-10483-LGS Document 59 Filed 05/22/23 Page 2 of 5

Discovery: The parties are currently engaged in discovery. On March 1, 2023, the
parties served their initial disclosures. On May 8, 2023, each of the parties served written
responses to Requests for Production of Documents served by each of the parties on March 24,
2023. To date, Fugate and Kincki have made document productions. McGraw is in the process
of completing its document review and anticipates that it will make its production in June 2023.
The Case Management Plan and Scheduling Order provides that all fact discovery is to be
completed by June 22, 2023. See Section 8(a). However, to date, the parties’ written discovery
responses and corresponding document productions do not appear to be complete. Counsels’
conferral and Court intervention may be required to resolve written discovery disputes. The
parties likely may serve additional sets of written discovery. The parties intend to take a number
of depositions, as the parties have identified numerous potential witnesses who are likely to have
discoverable information. And, at least one of the parties, Dr. Kinicki, has indicated that he may
file counterclaims against Dr. Fugate, which will require further discovery. In short, the parties
do not believe that the existing discovery schedule is workable and moving forward now with
discovery when Dr. Kinicki has not yet filed his potential counterclaims likely will require the
parties to take further discovery on claims that presently have not yet been filed.
B.

Respectfully, the Circumstances Warrant a Stay of Discovery

The parties respect Your Honor’s Practice Standards which provide, in pertinent part, that
“Absent extraordinary circumstances, the Court does not stay discovery or any other case
management deadlines during the pendency of a motion to dismiss.” Here, however, the parties
respectfully believe that such extraordinary circumstances exist here.
First, the parties believe that the Court’s resolution of the Motions to Dismiss may
facilitate settlement.
Second, proceeding with discovery now, before Dr. Kinicki’s potential counterclaims are
filed and known, as well as Dr. Fugate’s defenses to them, likely will require further rounds of
additional discovery directed at those claims and Dr. Fugate’s defenses to those claims. This
likely will require the parties and certain non-parties to be re-deposed concerning issues raised
by the counterclaims and defenses to them.
Third, since the entry of the Case Management Plan and Scheduling Order, it has become
clear to the parties that current discovery schedule is not workable. The parties anticipate that
these further discovery proceedings, including in the short term and during the time in which the
Motions to Dismiss are pending, will be significantly time consuming and financially costly for
both sides, and will consume both the resources of the parties and of the Court. Moreover, the
parties are in agreement that such discovery cannot be completed under the current upcoming
discovery deadlines in the case.
Wherefore, for these reasons, the parties jointly and respectfully request that the Court
enter an Order:
(a)

Staying all discovery and other proceedings in this case (other than the completion
of briefing on the Defendants’ Motions to Dismiss) until the Court enters its orders
on Defendants’ Motions to Dismiss;
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Case 1:22-cv-10483-LGS Document 59 Filed 05/22/23 Page 3 of 5

(b)

Directing that, within 14 days following entry of an Order on Defendants’ Motions
to Dismiss, the parties are to confer and submit to the Court a proposed schedule
for the completion of discovery; and

(c)

Providing all other and further relief as the Court deems just and proper.

Respectfully submitted this 19th day of May 2023.
DAVIDWOLFLAW pllc
Application DENIED. As explained in Individual
Rule III.C.2, the Court does not stay discovery
during the pendency of a motion to dismiss
absent extraordinary circumstances. The
parties have not presented extraordinary
circumstances here. By June 6, 2023,
Defendants shall file a letter stating the
substance of any contemplated counterclaims.
By June 9, 2023, Plaintiff shall file a response
stating whether such counterclaims expand the
scope of discovery beyond Plaintiff's claims, and
on what issues, and whether Plaintiff seeks to
expand the scope of discovery to include such
issues. Defendants shall file a reply to Plaintiff's
letter June 13, 2023.
So Ordered.
Dated: May 22, 2023
New York, New York

/s/ David B. Wolf
David B. Wolf
One Grand Central Place
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
SHERMAN & HOWARD L.L.C.
Peter G. Koclanes
Jon R. Tandler (admitted pro hac vice)
Nicholas M. DeWeese (admitted pro hac vice)
675 Fifteenth Street, Suite 2300
Denver, Colorado 80202
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFF MEL FUGATE
HOLLAND & KNIGHT LLP
/s/ Sean C. Sheely
Sean C. Sheely
Stosh M. Silivos
31 West 52nd Street
New York, NY 10019
Email: [e-mail]
Counsel for Defendant McGraw-Hill Global
Education Holdings, LLC

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Case 1:22-cv-10483-LGS Document 59 Filed 05/22/23 Page 4 of 5

OSBORN MALEDON
/s/ Colin M. Proksel
Colin M. Proksel
2929 N. Central Ave., Ste. 2000
Phoenix, AZ 85012
Email: [e-mail]
Counsel for Defendant Angelo J. Kinicki
KLEINBERG, KAPLAN, WOLFF & COHEN,
P.C.
/s/ Steven R. Popofsky
Steven R. Popofsky
Alisa Benintendi
500 Fifth Avenue
New York, NY 10110
Email: [e-mail]
[e-mail]
Counsel for Defendant Angelo J. Kinicki

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Case 1:22-cv-10483-LGS Document 59 Filed 05/22/23 Page 5 of 5

CERTIFICATE OF SERVICE
I hereby certify that on May 19, 2023, a true and correct copy of the foregoing was
electronically filed through the Court’s CM/ECF System with service upon the following:
Sean C. Sheely, Esq.
Stosh M. Silivos, Esq.
Holland & Knight LLP
31 West 52nd Street
New York, NY 10019
Email: [e-mail]
Counsel for Defendant McGraw-Hill Global Education Holdings, LLC
Colin M. Proksel, Esq.
Osborn Maledon
2929 N. Central Ave., 21st Floor
Phoenix, AZ 85012
Email: [e-mail]
Counsel for Defendant Angelo J. Kinicki
Steven R. Popofsky, Esq.
Alisa Benintendi, Esq.
Kleinberg, Kaplan, Wolff & Cohen, P.C.
500 Fifth Avenue
New York, NY 10110
Email: [e-mail]; [e-mail]
Counsel for Defendant Angelo J. Kinicki
/s/
Donna L. Fouts, Practice Assistant

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