Ceglia v. Zuckerberg et al
DECISION and ORDER denying 362 Motion to Stay. Signed by Hon. Leslie G. Foschio on 4/30/2012. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
MARK ELLIOT ZUCKERBERG, and
PAUL A. ARGENTIERI, ESQ.
Attorney for Plaintiff
188 Main Street
Hornell, New York 14843
BOLAND LEGAL LLC
Attorneys for Plaintiff
DEAN M. BOLAND, of Counsel
18123 Sloane Avenue
Lakewood, Ohio 44107
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Defendants
ALEXANDER H. SOUTHWELL, and
THOMAS H. DUPREE, of Counsel
200 Park Avenue, 47th Floor
New York, New York 10166-0193
HARRIS BEACH LLP
Attorneys for Defendants
TERRANCE P. FLYNN, of Counsel
Larkin at Exchange
726 Exchange Street, Suite 1000
Buffalo, New York 14210
Plaintiff’s Motion to Stay (Doc. No. 362), filed April 27, 2012, is before the
undersigned pursuant to the referral order of Hon. Richard J. Arcara dated May 27,
2011 (Doc. No. 41).
In a Decision and Order filed April 19, 2012 (Doc. No. 357) (“April 19, 2012
D&O”), the undersigned directed, inter alia, Plaintiff to produce to Defendants by April
30, 2012, Privilege Log Items 360 and 379 (respectively, “Item 360" and “Item 379").
On April 23, 2012, Plaintiff filed a motion (Doc. No. 358) (“Plaintiff’s Clarification
Motion”) seeking clarification of the April 19, 2012 D&O, insofar as it directed Plaintiff’s
production of Item 379. Plaintiff also advised that he intended to file objections to the
April 19, 2012 D&O. Plaintiff’s Clarification Motion at 2, n. 1. The undersigned, in a
Decision and Order filed April 26, 2012 (Doc. No. 361) (“April 26, 2012 D&O”), treated
Plaintiff’s motion for clarification as a motion for reconsideration, and denied the motion
On April 27, 2012, Plaintiff filed the instant motion (Doc. No. 362) (“Plaintiff’s
Motion”), seeking to stay the April 19, 2012 D&O pending Plaintiff’s obtaining a ruling on
the objections Plaintiff intends to file with regard to the April 19, 2012 D&O. Plaintiff’s
Motion at 2. According to Plaintiff, the requested stay should be granted pursuant to
Fed.R.Civ.P. 26(c) which permits the court, in its discretion, to stay discovery “for good
cause.” Id. at 3. Plaintiff explains that good cause exists because without the stay,
Plaintiff will be required to produce Items 360 and 379 despite Plaintiff’s continued
assertion that the items are privileged, and before the District Judge is able to rule on
Plaintiff’s anticipated objections to the April 19, 2012 D&O. Id. at 3-4.
In their response in opposition to Plaintiff’s motion filed April 30, 2012 (Doc. No.
363) (“Defendants’ Response”), Defendants urge the court to deny Plaintiff’s motion on
the basis that Plaintiff has not attempted, and in any event cannot satisfy, the fourfactor test for obtaining a stay pending appeal of an order, as set forth in Mohammad v.
Reno, 309 F.3d 95, 100 (2d Cir. 2002), Defendants’ Response at 6-8, nor has Plaintiff
demonstrated the good cause which Plaintiff erroneously asserts is the proper standard
for the requested stay. Id. at 8-9. Defendants further maintain that Plaintiff, by delaying
the filing of objections to the April 19, 2012 D&O, has created the situation in which he
will be required to produce Items 360 and 379 before receiving the District Judge’s
decision on such objections. Id. at 9-10.
Upon consideration of the arguments set forth by all parties on Plaintiff’s Motion,
for the reasons set forth in Defendants’ Response, particularly Plaintiff’s failure to
establish “‘the likelihood of success on the merits, [and] irreparable injury if a stay is
denied,’” Defendants’ Response at 6 (quoting Mohammad, 309 F.3d at 100), Plaintiff’s
motion to stay (Doc. No. 362), is DENIED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
April 30, 2012
Buffalo, New York
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