Ceglia v. Zuckerberg et al

Filing 427

MEMORANDUM IN SUPPORT re 348 Order on Motion to Stay, Scheduling Conference, Oral Argument,,,,,,,,,,,, byPaul D. Ceglia. (Attachments: # 1 Certificate of Service)(Boland, Dean)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,

Civil Action No. : 1:10-cv-00569-RJA

Plaintiff,
v.

MOTION TO VACATE DOC. NO.
348 AND SCHEDULE RULE 16(B)
CONFERENCE

MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, INC.
Defendants.

MEMORANDUM
This motion to vacate is not Plaintiff’s response to Defendants’ motion to
dismiss for fraud on the court, Doc. No. 319.

As the court knows, we are about to

embark on two months of expert depositions pursuant to the existing order Doc. No.
348. Our response to Doc. No. 319 is being prepared based upon those depositions
and our review of both side’s expert reports which is ongoing. This motion, instead,
is aimed at the underlying basis upon which the court granted Defendants’ motion
to delay or defer discovery, Doc. No. 323.
In summary, Defendants argued that FRCP 26(c) permitted the court to stay
discovery for good cause.

Id. at 7.

They then highlighted four factors the court

should weigh in deciding their motion:
1. Whether a dispositive motion is pending
2. The breadth of discovery sought

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3. The burden on the responding party
4. The potential prejudice to the party opposing the stay. Id.
Defendants then acknowledged that “whether a dispositve motion is pending
is a critical part of the good cause determination” because this court’s decision on
such a motion may eliminate the need for general discovery. Id. at 8. Established
case directs that the evaluation the court must make of that dispositive motion is
whether it:
1. Appears to have substantial grounds; and
2. Does not appear to be without foundation in law. Id.
As the Defendants’ argued, these two factors, together, establish good cause.
Id. Conversely, without either of these two factors, good cause is not shown.
Defendants certified to the court that to the best of their knowledge, formed
after an inquiry reasonable under the circumstances, that their legal contentions in
their motion to dismiss for fraud were warranted by existing law.

Defendants

asserted their motion to dismiss for fraud on the court also “does not appear to be
without foundation in law.” Id.
As shown below, Defendants’ motion for fraud on the court, reliant entirely
on

intrinsic fraud claims, is completely, categorically without any foundation in

law.
Therefore, the basis by which Defendants argued for the 26(c) stay of
discovery is without merit. The court’s order, Doc. No. 348, following the April 4,
2012 hearing relied on Defendants’ arguments in their motion to delay or defer
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discovery.

Defendants knew or should have known the indisputable law which

prohibits their motion to dismiss for fraud reliant on intrinsic fraud. Simply put,
there is no species of motion that is recognized under New York law that permits a
court to take any action against any party based upon an allegation of fraud on the
court founded in intrinsic fraud.

The motion Defendants’ relied on to obtain the

order in Doc. No. 348 is not permitted at any time under New York law.

The

straightforward analysis of this point is below.
THIS COURT IS SITTING IN DIVERSITY ON THIS CASE
This court is sitting “in diversity” as a result of a successful action to remove
this case from New York State court to this court. Doc. No. 6. Doc. No. 36-1. The
court’s docket also reflects that the court is sitting in diversity on this case.
COURT SITTING IN DIVERSITY IS OBLIGATED TO
APPLY SUBSTANTIVE STATE LAW
It is a long standing principle of jurisprudence that a federal court sitting in a
diversity of citizenship case is obligated to adhere to state substantive law. Erie R.
Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Guaranty Trust
Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
Specifically in New York state, courts sitting in diversity must apply substantive
New York law. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116
S.Ct. 2211, 135 L.Ed.2d 659 (1996). A prior decision by this court in the Western
District of New York confirms this view. It is, of course, incumbent upon Federal
District Court sitting on a diversity action to apply substantive State law. Rowe v.

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Wal-Mart Stores, Inc., 11 F. Supp. 2d 265, 266 (W.D.N.Y. 1998).
Defendants acknowledge this point in that their motion to dismiss for statute
of limitations violation. That motion cites exclusive to substantive New York state
law regarding a variety of issues. Doc. No. 321.
NEW YORK SUBSTANTIVE LAW RECOGNIZES INTRINSIC AND
EXTRINSIC FRAUD DISTINCTION
Under New York substantive law, there is a distinction between extrinsic and
intrinsic evidence when a court is asked to consider a Fraud on the Court motion.
This is because New York law permits collateral attacks on judgments obtained by
extrinsic, but not intrinsic, fraud. Altman v. Altman, 150 A.D.2d 304, 542 N.Y.S.2d
7, 9 (N.Y.App.Div.1989)). Emphasis added.
Thus, extrinsic fraud “must be in some matter other than the issue in
controversy in the action.”

Chenu v. Board of Trustees, 12 A.D.2d 422, 424, 212

N.Y.S.2d 818 [quoting Crouse v. McVickar, 207 N.Y. 213, 218, 100 N.E. 697], aff'd,
11 N.Y.2d 688, 225 N.Y.S.2d 760, 180 N.E.2d 913, remittitur amd., 11 N.Y.2d 765,
227 N.Y.S.2d 14, 181 N.E.2d 760, cert. denied, 370 U.S. 910, 82 S.Ct. 1256, 8 L.Ed.
2d 404.
Fraud is extrinsic when it is collateral to the matter decided by the court and
deprives the opposing party of an opportunity adequately to present his claim or
defense, as where a defendant is induced not to defend by a false promise to
discontinue the action. DiRusso v. DiRusso, 55 Misc. 2d 839, 844, 287 N.Y.S.2d 171,
177-78 (Sup. Ct. 1968)

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Fraud is intrinsic under New York state law when it relates to the very
matter decided by the court, as when perjured testimony is produced. Id.
The distinction between extrinsic and intrinsic fraud was well expressed by
Judge Phillips in Chisholm v. House, 160 F.2d 632, at p. 643 (10th Cir., 1947). He
said:‘* * * Fraud is regarded as extrinsic or collateral where it prevents a party from
having a trial or from presenting his cause of action or his defense, or induces him
to withdraw a defense, or operates upon matters pertaining not to the judgment
itself, but to the manner in which it was procured. Where, however, the judgment
was founded on a fraudulent instrument or perjured evidence, or the fraudulent
acts pertained to an issue involved in the original action and litigated therein, the
fraud is regarded as intrinsic.’1011 The distinction between extrinsic and intrinsic
fraud is important because New York allows collateral attack upon any judgment
only when extrinsic fraud is established.
In Crouse v. McVickar, 207 N.Y. 213, 218, 100 N.E. 697, 45 L.R.A.N.S., 1159
(1912) the Court said ‘fraud for which a judgment can be impeached must be in
some matter other than the issue in controversy in the action.’

Emphasis added.

See Jacobowitz v. Metselaar, 268 N.Y. 130, 197 N.E. 169, 99 A.L.R. 1198 (1935);
Chenu v. Board of Trustees, Police Pension Fund, 12 A.D.2d 422, 212 N.Y.S.2d 818
(1961); Cohen v. Randall, 137 F.2d 441 (2d Cir., 1943), cert. denied, 320 U.S. 796, 64
S.Ct. 263, 88 L.Ed. 480 (1943). Emphasis added.
Any fraud claimed must be extrinsic fraud on the court and relate to matters
other than issues that could have been litigated. Emphasis added. Diners Club,
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Inc. v. Makoujy, 110 Misc. 2d 870, 871, 443 N.Y.S.2d 116, 117 (Civ. Ct. 1981).
Emphasis added. (See also Mtr. of Holden, 271 N.Y. 212, 218, 2 N.E.2d 631, 633—
634). Overmyer v. Eliot Realty, 83 Misc. 2d 694, 705, 371 N.Y.S.2d 246, 258 (Sup.
Ct. 1975)).
SECONDARY SOURCES RECOGNIZE
INSTRINSIC/EXTRINSIC FRAUD DISTINCTION
Restatement of Judgments § 126(2)(b): Perjury and fabricated evidence are
evils that can and should be exposed at trial, and the legal system encourages and
expects litigants to root them out. Emphasis added. In addition, the legal system
contains other sanctions against perjury. See Lockwood v. Bowles, 46 F.R.D. 625
(D.D.C.1969); Shammas v. Shammas, 9 N.J. 321, 88 A.2d 204 (1952) (Brennan, J.).
“Fraud on the court is therefore limited to the more egregious forms of subversion of
the legal process already suggested, those that we cannot necessarily expect to be
exposed by the normal adversary process.” Id.
SECOND CIRCUIT DEFINES FABRICATED EVIDENCE AND PERJURY
CLAIMS AS INTRINSIC FRAUD CLAIMS
Perjury and fabricated evidence allegations are insufficient to obtain a Fraud
on the Court dismissal. Courts confronting the issue have consistently held that
perjury or fabricated evidence are not grounds for relief as "fraud on the court." See,
e.g., Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 193-95 (8th Cir.
1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977); Serzysko v.
Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.), cert. denied, 409 U.S. 883, 93
S.Ct. 173, 34 L.Ed.2d 139 (1972) (Claims of perjury by a witness is recognized as
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intrinsic fraud); Porcelli v. Joseph Schlitz Brewing Co., 78 F.R.D. 499 (E.D.Wisc.),
aff'd without opinion, 588 F.2d 838 (7th Cir. 1978); Koningsberg v. Security National
Bank, 66 F.R.D. 439, 442 (S.D.N.Y.1975); Lockwood v. Bowles, 46 F.R.D. 625, 630
(D.D.C.1969).
Perjury and fabricated evidence are evils that can and should be exposed at
trial.” In addition, the legal system contains other sanctions against perjury. See
Lockwood, Shammas.
Fraud upon the court does not exist where a judgment has simply been
“obtained with the aid of a witness who, on the basis of after-discovered evidence, is
believed possibly to have been guilty of perjury.” Hazel-Atlas Glass Co. v. HartfordEmpire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 (1944).
In addition, fraud which involves “witness perjury or fabricated evidence that
does not involve officers of the court and that could and should have been
discovered” during the previous litigation is insufficient to establish fraud on the
court. Barrett v. United States, No. 06–CV–1324, 2006 WL 3248396, at * 7
(N.D.N.Y. Nov.7, 2006); see also Gleason v. Jandrucko, 860 F.2d 556 at 559 (2d Cir.
1988) (holding that the credibility and veracity of a witness at issue in an original
proceeding cannot be later challenged by way of an independent action and that
evidence of alleged perjury by a witness is simply not sufficient for a finding of
“fraud upon the court”); Trowbridge, et al v. Institute for Basic Research in
Developmental Disabilities 2003 WL 21143086, at * 4 (holding that fraud upon the
court is not shown by presenting evidence attacking the veracity of a witness in the
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original proceeding).
Although fraud on the court motions citing intrinsic fraud are more often
lodged post-judgment, the logic inherent in their application remains whether filed
pre-judgment or post-judgment.

In sum, “neither perjury nor nondisclosure, by

itself, amounts to anything more than fraud involving injury to a single litigant,”
Gleason, 860 F.2d at 560, and thus, is insufficient to justify relief under the savings
clause of Rule 60. See, e.g., Tesser v. Board of Educ. of City of New York, No. 97–
CV–6719, 2005 WL 2977766, at * 5 (E.D.N.Y. Nov. 7, 2005) (holding that allegations
of witness perjury and nondisclosure during pretrial discovery does not constitute
grounds for an independent action under Rule 60).
It is important to note that the key substantive law here is the law of New
York state. That state law, as noted above, clearly prohibits a motion for fraud on
the court citing intrinsic fraud at any point in litigation.
DEFENDANTS’ FRAUD CLAIMS JUSTIFYING EXPEDITED DISCOVERY
AND DELAY OR DEFERRAL OF DISCOVERY DOC. NO. 348 ARE
INTRINSIC
Defendants have no claim that the type of fraud they are alleging is extrinsic.
In fact, their own words in countless pleadings and oral argument repeatedly allege
the precise language that defines intrinsic fraud.
1. “[T]he Amended Complaint...is based upon a doctored contract and fabricated
evidence.” Doc. No. 40 at 1. Emphasis added.
2. “Ceglia appears to have doctored the genuine contract...and then fabricated
emails....” Doc. No. 45 at 2. Emphasis added.
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3. “[Ceglia] has previously fabricated documents....” Doc. No. 72 at 9. Emphasis
added.
4. “[S]moking gun documents...conclusively establish that he fabricated the
purported contract and this entire lawsuit is a fraud and a lie.” Doc. No. 99
at 4. Emphasis added.
5. “Defendants’ papers stated that certain unidentified documents confirmed
Defendants’ longstanding public position that Ceglia fabricated the
purported contract....” Doc. No. 110 at 11. Emphasis added.
6. “This case is based upon on a fraudulent contract and fabricated emails.”
Hearing Transcript, June 30, 2011 at 5. Emphasis added.
7. Defendants’ counsel asserts the email exchanges between the parties offered
by Plaintiff are “made up.” Id. at 16.
8. “This is a case where plaintiff fabricated a purchase agreement.” Id. at 37.
Emphasis added.
9. The Facebook Contract is an “amateurish forgery.” Id. at 112.
10. “Given that Ceglia has fabricated emails in this case....” Doc. No. 155 at 16.
Emphasis added.
11. “Defendants have already gathered substantial proof that Ceglia fabricated
the emails...just as he doctored the contract....”

Doc. No. 224 at 21.

Emphasis added.
12. “Ceglia’s motion for sanctions based upon the purported ‘spoliation’ of the
fabricated contract...should be denied....” Doc. No. 237 at 6. Emphasis added.
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13. “This Court granted expedited discovery on July 1, 2011, based on Defendants’
showing that Ceglia had fabricated the [Facebook Contract].” Id. at 6.
Emphasis added.
14. “Evidence[s] demonstrat[es] that [Plaintiff] fabricated the ‘emails’ in his first
Amended Complaint.” Id. at 12. Emphasis added.
15. “The Purported Emails themselves, which Ceglia has proffered as authentic
communications with Mark Zuckerberg, are fabricated.” Doc. No. 324 at
6.

Emphasis added.

16. “This lawsuit is a fraud.

Ceglia...[has] forged documents, fabricated

emails....” Doc. No. 319 at 9. Emphasis added.
17. “[T]his Court granted expedited discovery to allow Defendants to assemble
evidence that Ceglia is perpetrating a fraud on the court based on his
forged contract...and the fabricated emails.” Id. at 9.

Emphasis added.

18. “[P]laintiff had fabricated a document submitted in support of its claim....”
Id. at 31.

Emphasis added.

19. “[H]e inserted into the fabricated contract a historical anomaly....” Id. at 50.
Emphasis added.
20. “The Purported ‘emails’ quoted in the Amended Complaint are Fabricated.”
Id. at 53.
21. “When he fabricated the emails....” Id. at 55. Emphasis added.
22. “[T]he fabricated ‘emails’ were typed in manually.”
added.
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Id. at 55.

Emphasis

23. “According to the fictitious narrative reflected in the fabricated ‘emails’....” Id.
at 56. Emphasis added.
24. “[T]he lie to the fictional narrative in his fabricated ‘emails.’”

Id. at 57.

Emphasis added.
25. “Defendants have established...that Ceglia is perpetrating a fraud on the court
through the submission of a forged Work for Hire document and fabricated
emails.” Id. at 58.

Emphasis added.

26. “Of course we were not there when Mr. Ceglia...fabricated the document.”
Hearing Transcript of April 4, 2012 at 9.

Emphasis added.

27. “[H]e had the first fabricated document....” Id. at 12. Emphasis added.
28. “Your Honor, because, I would submit, he was trying to create an electronic
version of his fabricated contract to further his fraud....”

Id. at 62.

Emphasis added.
29. “The Purported Emails themselves which Mr. Ceglia has proffered as authentic
communications with Mr. Zuckerberg, are fabricated.” Doc. No. 325 at 7.
Report of Stroz Friedberg. Emphasis added.
30. “[T]he text of the Purported Emails themselves demonstrates that they are
fabricated.” Id. at 28. Emphasis added.
31. “[T]he text of the Purported Emails themselves constitutes substantial
evidence that they are fabricated.” Id. at 31. Emphasis added.
32. “This document was fabricated on or after February 15, 2011.”
Emphasis added.
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Id. at 44.

33. “Ceglia’s sworn declaration has now been revealed to be false.” Doc. No. 295
at 9. Emphasis added.
34. “[T]he story he tells in his Amended Complaint is a lie.”

Doc. No. 45 at 11.

Emphasis added.
35. “Nor should the Court be forced to devote judicial resources to supervising a
concocted lawsuit that rests on a lie.” Id. at 19. Emphasis added.
There are many more instances of Defendants asserting that the basis for
their claimed fraud on the court using alternatives to the words perjury and
fabrication.

Defendants’ fraud claims are intrinsic in total.

Occasionally,

Defendants even explicitly confirm their view that the basis for this Court’s
granting of the expedited discovery order was their supposed “showing” of perjury
and fabricated documents by Plaintiff.
UNDER SUBSTANTIVE NEW YORK LAW, THERE IS NO REMEDY FOR
DEFENDANTS’ MOTION TO DISMISS FOR INTRINSIC FRAUD
The obvious distinction between intrinsic and extrinsic fraud is clear
throughout state and federal case law. Defendants by the record noted above, have
no argument that their fraud claims in this case are anything other than intrinsic.
Defendants will have the opportunity to bring their fabricated documents and
perjury claims before a jury. Nothing could be more intrinsic to the case than the
Defendants’ claims of fraud repeated throughout the record of this case.
New York law does not recognize a motion to dismiss for fraud on the court
reliant on intrinsic fraud. In a pre-trial setting, fraud on the court motions reliant

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on intrinsic fraud are not recognized because, as noted above, the adversary system
of justice is designed to handle precisely such allegations.

Even post-judgment, a

motion for Fraud on the Court reliant on intrinsic fraud is insufficient to reverse as
New York state law regards a party’s trial as their opportunity to expose alleged
fabricated evidence and perjury.
SECOND CIRCUIT
FEDERAL COURT SITTING IN DIVERSITY SHOULD NOT GRANT
RELIEF FOR CLAIM OF INTRINSIC FRAUD IF SUBSTANTIVE STATE
LAW PROHIBITS IT
In 7 Moore, Federal Practice P60.37(3) (2d ed.), page 634, the author writes,
“a federal court sitting in another state, which allows relief only where the fraud is
extrinsic, should not grant relief from a judgment of that state on the basis of
intrinsic fraud * * * Certainly the policy of Erie-Tompkins demands this where the
state court judgment was rendered in a case involving only non-federal matters;
and, further, the policy is in accord with that underlying res judicata and full faith
and credit.”

Alleghany Corp. v. Kirby, 218 F. Supp. 164, 183-84 (S.D.N.Y. 1963)

aff'd, 333 F.2d 327 (2d Cir. 1964) on reh'g, 340 F.2d 311 (2d Cir. 1965).
“It is not a judgment which could be collaterally attacked in a New York court
and therefore a collateral attack must fail in this Court as well.”

Id.

Likewise,

Defendants’ pre-trial motion to dismiss for fraud, reliant on intrinsic fraud as it is,
“must fail in this Court as well.” Id.
DEFENDANTS MOTION FOR FRAUD ON THE COURT HAS NO
REMAINING SUBSTANTIAL GROUNDS

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Without the barred intrinsic fraud motion to dismiss on fraud argument, only
two insubstantial grounds remain - litigation misconduct and spoliation. The court
noted the insubstantial nature of a spoliation claim in response to Plaintiff’s earlier
claim of spoliation by Defendants:
And [Defendants] they [yellowed the Facebook Contract] and they're
going to get the benefit even if they're not allowed to argue it.
THE COURT: You can ask for a curative instruction.
MR. BOLAND: And that's what I'm asking for in our motion.
THE COURT: Well, that's exact -- but we're not here for trial. I'm not
authorized to make in limine motions -- or to consider in limine
motions or to -- or to direct the district judge what his cautionary
instruction should sound like.” Hearing Transcript, December 13, 2011
at 69.
Defendant’s claim of spoliation, spurious as it is, is likewise something
“direct[ed] [to] the district judge” at a later time.
THE LITIGATION MISCONDUCT CLAIM IS NOT SUBSTANTIAL
Defendants’ Motion to Dismiss for Fraud includes a claim of “litigation of
misconduct.” However, as the court knows, this claim is not substantial for several
reasons.

First, Defendants have raised this claim before and either obtained

rulings from this court regarding sanctions requests or withdrawn those requests.
More importantly, the court has sanctioned Plaintiff on one occasion already
satisfying any appropriate thirst for punishment Defendants still harbor. Finally,
there are currently no sanction motions pending against either party. Therefore,
this claim is not substantial.
MOTION TO DISMISS FOR STATUTE OF LIMITATIONS VIOLATION
As to Defendants’ motion to dismiss arguing Ceglia’s case is time barred the
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court summarized that claim as follows:
Defendants’ arguments that Plaintiff’s claims are time-barred or
barred by laches turn, in large part, on Defendants’ assertion that on
April 13, 2004, Defendant Mark Elliot Zuckerberg (“Zuckerberg”),
formed in Florida a limited liability company, Thefacebook, LLC
(“the LLC”), to run the business, which was the precursor to
Thefacebook, Inc. (“the Inc.”), which later became known as
Defendant FaceBook. Inc. (“FaceBook”). According to Defendants,
Zuckerberg, by listing himself and two others, but not Plaintiff, as
the owners of the LLC, “publicly and unequivocally excluded
[Plaintiff] from ownership of the company in April 2004.” Doc. No. 366
at 4.
As a result of this analysis, the court granted discovery to Plaintiff in two
areas:
1. “[W]what intellectual property rights and other ownership interests were
created by the contract’s language....” Id. at 5. Emphasis added.
2.

“[A]nd the how the formation of the [Florida] LLC [in April 2004]

necessarily divested Plaintiff of any and all interest in the partnership’s
assets, including intellectual property rights.” Id.
Defendants then improvidently filed a motion to clarify Doc. No. 373. In that
motion, Defendants graciously offered their unsolicited assistance to the court in
drafting a better order.

That motion included a condescending list of precise

questions divided into two categories that it urged the court were “inappropriate”
and those that were “appropriate.” Doc. No. 373 at 10. “Examples of appropriate
discovery requests...might include [while] [i]n contrast, examples of inappropriate
discovery requests would include....” Id. at 10-11. Emphasis in the original. The
court disagreed with Defendants’ lawyers’ dim view of the court’s writing ability.
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and denied the motion. The court responded to that motion by thanking Defendants
and sending them on their way:

“Defendants, by claiming, as plaintiffs in the

Saverin case, that no intellectual property rights were transferred into the LLC
formed by Saverin on April 13, 2004 under Florida law, moots that issue in the
instant case.” Doc. No. 401 at 7-8. Item number 2 above from Doc. No. 366 was
eliminated as a potential triggering event for the start of Plaintiff’s statute of
limitations clock.
Contrary to Defendants’ assertion in their motion to delay or defer discovery,
Doc. No. 321 no longer offers “substantial grounds” at all.

Their key event

triggering the running of the statute of limitations clock argued in that ill-conceived
motion, turns out to be the formation of a shell corporation that their client and
former lawyers knew was a shell corporation all along. Defendants failed to reveal
that fact in their motion further damaging any argument that their motion contains
“substantial grounds.”

In fact, as it sits now, neutered by the court’s order

recognizing no intellectual property was transferred by Zuckerberg to any person or
any entity until, at the earliest, July 2004, their motion contains no grounds to
argue Plaintiff’s claim is time barred.

Defendants do not even argue that

Zuckerberg transferred Plaintiff’s share of any intellectual property into the
Delaware incorporation occurring in July 2004.
Plaintiff is now permitted discovery regarding how Defendants’ define the
“intellectual property rights and other ownership interests” created by the Facebook
Contract.

No matter the definitions Defendants provide, those definitions alone
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have no connection to an argued date of breach. This claim is not substantial.
CONCLUSION
For the reasons noted above, Plaintiff respectfully requests this court vacate
Doc. No. 348 and schedule a Rule 16(b) conference to develop a regular discovery
schedule as this court intended to schedule previously. The offered justifications for
a delay or deferral of discovery in Defendants’ motion no longer exist. Their claim
that their motion to dismiss for fraud may well obviate the need for discovery is
contrary to New York state law. The only reasons urged by Defendants for this
court to delay or defer discovery are now non-existent as this motion makes clear.
Respectfully submitted,
/s/Dean Boland
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
[e-mail]

Dean Boland
1475 Warren Road
Unit 770724
Lakewood, Ohio 44107
216-236-8080 phone
866-455-1267 fax
[e-mail]

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