Girard v. Collao et al

Filing 110

ORDER granting 108 Letter Motion to Stay re: 108 FIRST LETTER MOTION to Stay Proceedings for 30 Days addressed to Judge Nelson Stephen Roman from Rob Rickner dated 11/11/22. The Court is in receipt of the attached letter from Plaintiff's counsel, dated November 11, 2022 (ECF No. 108) and Defendant's response, dated November 14, 2022. (ECF No. 109.) Plaintiff's counsel explains that he was recently retained, and that counsel has discovered a potential for "significant confusion and overlap" regarding the allegations in the Fourth Amended Complaint (ECF No. 96.) and pleadings raised in two other potentially related federal cases that were filed pro se by Plaintiff. See Girard v. Barber et al., 22 cv 00339 (N.D.N.Y.); Girard v. Gutwein et al., 20 cv 5883 (S.D.N.Y.). Plaintiff's counsel requests a 30-day stay on the current briefing schedule for Defendant's motion to dismiss in order to allow counsel to confer with his cli ent and sort out any inadvertent overlap or duplicative facts or claims presented in the Fourth Amended Complaint. Plaintiff's counsel also stated that he can provide the Court with a letter clarifying the proper claims at the conclusion of t he 30-day stay or can file a clarifying pleading without adding or amending claims. Defendants do not object to the 30-day stay of the motion to dismiss but indicate that to "to the extent that counsel is suggesting that Plaintiff would like to file a 'clarifying pleading' (i.e., a Fifth Amended Complaint), Defendants would oppose such a request if or when it is properly made under Federal Rule of Civil Procedure 15(a)(2)." (ECF No. 109.) The parties are currently brief ing on Defendant's motion to dismiss the Fourth Amended Complaint. (See ECF No. 105.) The Court GRANTS Plaintiff's request for a 30-day stay. The Court, accordingly, sets out the following modified briefing schedule on the remaining paper s for the motion to dismiss: Plaintiff is directed to serve (not file) his opposition papers on or before January 30, 2023, and Defendants are directed to serve their reply papers on or before February 14, 2023. The parties are directed to file a ll motion papers onto ECF on the reply date, February 14, 2023. The parties are directed to mail two courtesy copies and one electronic copy of their papers to Chambers as they are served. To the extent that Plaintiff's counsel finds that the allegations raised in the Fourth Amended Complaint have overlap with or are duplicative of allegations raised in the other federal actions, Plaintiff may file a notice of discontinuance with respect to the claims he does not wish to allege in the Fourth Amended Complaint. The Clerk of the Court is kindly directed to terminate the motion at ECF No. 108. (Signed by Judge Nelson Stephen Roman on 11/18/2022) (ate)

MEMORANDUM ENDORSEMENT
Girard v. Callao et al.,
7:18-cv-2026 (NSR)

11/18/2022

The Court is in receipt of the attached letter from Plaintiff’s counsel, dated November 11,
2022 (ECF No. 108) and Defendant’s response, dated November 14, 2022. (ECF No. 109.)
Plaintiff’s counsel explains that he was recently retained, and that counsel has discovered a
potential for “significant confusion and overlap” regarding the allegations in the Fourth Amended
Complaint (ECF No. 96.) and pleadings raised in two other potentially related federal cases that
were filed pro se by Plaintiff. See Girard v. Barber et al., 22 cv 00339 (N.D.N.Y.); Girard v.
Gutwein et al., 20 cv 5883 (S.D.N.Y.).
Plaintiff’s counsel requests a 30-day stay on the current briefing schedule for Defendant’s
motion to dismiss in order to allow counsel to confer with his client and sort out any inadvertent
overlap or duplicative facts or claims presented in the Fourth Amended Complaint. Plaintiff’s
counsel also stated that he can provide the Court with a letter clarifying the proper claims at the
conclusion of the 30-day stay or can file a clarifying pleading without adding or amending claims.
Defendants do not object to the 30-day stay of the motion to dismiss but indicate that to “to the
extent that counsel is suggesting that Plaintiff would like to file a ‘clarifying pleading’ (i.e., a Fifth
Amended Complaint), Defendants would oppose such a request if or when it is properly made
under Federal Rule of Civil Procedure 15(a)(2).” (ECF No. 109.) The parties are currently briefing
on Defendant’s motion to dismiss the Fourth Amended Complaint. (See ECF No. 105.)
The Court GRANTS Plaintiff’s request for a 30-day stay. The Court, accordingly, sets out
the following modified briefing schedule on the remaining papers for the motion to dismiss:
Plaintiff is directed to serve (not file) his opposition papers on or before January 30, 2023, and
Defendants are directed to serve their reply papers on or before February 14, 2023. The parties are
directed to file all motion papers onto ECF on the reply date, February 14, 2023. The parties are
directed to mail two courtesy copies and one electronic copy of their papers to Chambers as they
are served.
To the extent that Plaintiff’s counsel finds that the allegations raised in the Fourth Amended
Complaint have overlap with or are duplicative of allegations raised in the other federal actions,
Plaintiff may file a notice of discontinuance with respect to the claims he does not wish to allege
in the Fourth Amended Complaint.
The Clerk of the Court is kindly directed to terminate the motion at ECF No. 108.
Dated: November 18, 2022
White Plains, NY

STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES

DIVISION OF REGIONAL OFFICES

ATTORNEY GENERAL

WESTCHESTER REGIONAL OFFICE

November 14, 2022
Via ECF
The Honorable Nelson S. Román
United States District Court
for Southern District of New York
300 Quarropas Street
White Plains, New York 10601
Re: Girard v. Collado s/h/a Collao et. al., 18-cv-2026 (NSR)
Dear Judge Román:
This office represents the Defendants in the above-referenced matter. I write in
response Mr. Rickner’s letter dated November 11, 2022 (ECF No. 108).
As the Court is aware, the Defendants moved to dismiss Plaintiff’s Fourth
Amended Complaint. Pursuant to the Court’s grant of an extension to Plaintiff, he is to
serve opposition papers on or before December 30, 2022, and Defendants are to serve
their reply papers (and file all motion papers) on or before January 15, 2023. See ECF
No. 105.
The Defendants do not oppose counsel’s request for a 30 day stay of their motion
to dismiss the Fourth Amended Complaint to permit counsel to review, and familiarize
themselves with the case, and would have consented to such a request had it been made
to them. However, to the extent that counsel is suggesting that Plaintiff would like to file
a “clarifying pleading” (i.e., a Fifth Amended Complaint), Defendants would oppose such
a request if or when it is properly made under Federal Rule of Civil Procedure 15(a)(2).
I thank the Court for its courtesy and consideration.
Respectfully submitted,
Terrance K. DeRosa
Assistant Attorney General

44 SOUTH BROADWAY, WHITE PLAINS, NY 10601 ● PHONE [phone] ● FAX [phone] ● WWW.AG.NY.GOV

Hon. Nelson S. Román
November 14, 2022
Page 2

cc:

Via ECF
Rob Rickner, Esq.
Stephanie Panousieris, Esq.
Rickner PLLC

Attorneys for Plaintiff

14 Wall Street, Suite 1603
New York, New York 10005

44 SOUTH BROADWAY, WHITE PLAINS, NY 10601 ● PHONE [phone] ● FAX [phone] ● WWW.AG.NY.GOV