Ceglia v. Zuckerberg et al

Filing 571

DECISION AND ORDER. The schedule for the filing of Defendants' reply as set forth in Doc. No. 542 at 3, is amended as follows: Defendants' reply shall be filed two weeks following Plaintiff's full compliance with the court's determination of Defendants' Eighth and Ninth Motions to Compel in the event the court should grant Defendants' motions, or one week from the denial of Defendants motions.. Signed by Hon. Leslie G. Foschio on 10/16/2012. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG,
FACEBOOK, INC.,

DECISION
and
ORDER
10-CV-569A(F)

Defendants.

APPEARANCES:

PAUL A. ARGENTIERI, ESQ.
Attorney for Plaintiff
188 Main Street
Hornell, New York 14843
BOLAND LEGAL, LLC
Attorney for Plaintiff
DEAN M. BOLAND, of Counsel
18123 Sloane Avenue
Lakewood, Ohio 44107
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Defendants
ORIN S. SNYDER,
ALEXANDER H. SOUTHWELL,
THOMAS H. DUPREE, JR., 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

By letter filed October 16, 2012 (Doc. No. 569), Defendants request the court
amend its prior schedule requiring Defendants’ reply to Plaintiff’s response to
Defendants’ motion to dismiss based on fraud (Doc. No. 319), be filed by October 18,
2012 or two weeks following Plaintiff’s full compliance with the court’s determination of

Defendants’ Eighth and Ninth Motions to Compel (Doc. Nos. 511 and 521)
(“Defendants’ motions”) (Doc. No. 542 at 3) (“Defendants’ request”). Defendants’
motions, filed, respectively, September 5, and September 7, 2012, are both presently
under advisement by the court. Specifically, Defendants’ requested clarification that in
the event the court should deny both of Defendants’ motions, Defendants’ reply should
be filed not later than one week following such denial (Doc. No. 569 at 2). By letter
dated October 16, 2012 (Doc. No. 570) (“Plaintiff’s letter”), Plaintiff objects to
Defendants’ request. Plaintiff asserts that Defendants’ request is a mere delaying tactic
because neither of Defendants’ motions seek any forensic evidence relevant to the
merits of Defendants’ motion to dismiss based on Defendants’ assertion that the
contract at issue, as alleged by Plaintiff, constitutes a fraud on the court, Plaintiff’s letter
at 1, and Defendants have lately adopted a strategy of delay. Plaintiff’s letter at 2.
Although the briefing schedule at issue did address the contingency that the
court have acted on Defendants’ motions prior to October 18, 2012 by granting
Defendants’ motions, the schedule did not specify a filing date addressing the
alternative possibility that the court may deny Defendants’ motions after the October 18,
2012 date as established by the court (Doc. No. 542). If this possibility had been
considered (as it should have been) a schedule similar to the amendment now
proposed by Defendants would certainly have been included in the original order. The
court is sensitive to Plaintiff’s contention that Defendants may attempt to further delay
filing of the reply by falsely asserting Plaintiff’s lack of full compliance with any favorable
ruling of the court on Defendants’ motion. Plaintiff’s letter at 1. However, should such a
dispute arise, Plaintiff will undoubtedly bring the issue to the court’s attention, and the
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court will make every effort to promptly resolve such dispute.1
The court also understands Plaintiff’s position that the documents at issue in
Defendants’ motions may be of questionable relevance to Defendants’ basic fraud
claim, Plaintiff’s letter at 1, however, the court cannot be expected to anticipate
Defendants’ litigation strategy as to Defendants’ potential use of the disputed
documents in further support of Defendants’ motion to dismiss. Further, contrary to
Plaintiff’s assertions, the court perceives no improper motive to unnecessarily delay the
court’s addressing the merits of Defendants’ motion to dismiss. Such notion is contra
intuitive given Defendants’ early and continuing insistence that the underlying contract
is a fraud, and that the action should be dismissed as early as possible on that basis.
As discussed, the lack of an alternative schedule in Doc. No. 542 for filing
Defendants’ reply should the court deny Defendants’ motions was inadvertent and, like
Defendants, Plaintiff also failed to bring the issue to the court’s attention immediately
after the schedule was filed until Defendants’ request of October 11, 2012. Indeed, it
could be said that if Plaintiff is as confident that the requested documents have no
relevance, viz potential harm to Plaintiff’s case, as Plaintiff now contends, and Plaintiff
genuinely wished to expedite the court’s consideration of the merits of Defendants’
motion to dismiss, opposed by Plaintiff’s experts, by compelling Defendants’ earlier
filing of Defendants’ reply, Plaintiff could simply have provided the requested
documents thereby avoiding, as Plaintiff argues, Defendants’ unnecessary motions and
any concomitant delay that could arise in reaching the merits to which Plaintiff now

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Any delay in resolving Defendants’ Eighth and Ninth Motions to Com pel is attributable to the
court’s calendar requiring the court’s attention to num erous other im portant m atters.
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“strenuous[ly] . . . objects.” Plaintiff’s letter at 1. Accordingly, based on the foregoing,
Defendants’ request is GRANTED. The schedule for the filing of Defendants’ reply as
set forth in Doc. No. 542 at 3, is amended as follows:
Defendants’ reply shall be filed two weeks following Plaintiff’s full compliance
with the court’s determination of Defendants’ Eighth and Ninth Motions to Compel
(“Defendants’ motions”) in the event the court should grant Defendants’ motions, or one
week from the denial of Defendants’ motions.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: October 16, 2012
Buffalo, New York

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