Ceglia v. Zuckerberg et al

Filing 607

DECISION and ORDER granting in part and denying in part 596 Motion for Extension of Time to File Response/Reply re 320 MOTION for Judgment on the Pleadings. Responses due by 11/25/2012. Replies due by 12/3/2012.. Signed by Hon. Leslie G. Foschio on 11/20/2012. (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 papers filed November 16, 2012, (Doc. No. 596 - 597), Plaintiff requests a 30day extension of time within which to file Plaintiff’s response to Defendants’ motion for
judgment on the pleadings (Doc. No. 320) based on a time bar under the applicable
statute of limitations and laches (“Defendants’ motion”) (“Plaintiff’s request”). Plaintiff’s

response was due November 19, 2012 (Doc. No. 566, 572). By letter filed November
19, 2012 (Doc. No. 602), Defendants oppose Plaintiff’s request. By letter to the court
received on November 20, 2012 (Doc. No. 606), Plaintiff requests the court hold
Defendants’ motion in abeyance avoiding Plaintiff’s need to file a response.
The asserted ground for Plaintiff’s request is that such response may constitute
a violation of Plaintiff’s conditions of release, particularly the general condition that
Plaintiff avoid criminal conduct, in connection with a recently filed criminal complaint
against Plaintiff charging wire fraud and mail fraud based on Plaintiff’s suit in the instant
action seeking a one-half interest in Defendant Facebook arising from a purposed
contract.
At its base, Defendants’ motion turns on Plaintiff’s alleged failure to timely sue to
enforce the purported contract. As such, even assuming the underlying contract at
issue is fraudulent, as Defendants strenuously maintain, such fact is irrelevant to
whether Plaintiff’s suit was time-barred when filed or whether Plaintiff was guilty of
laches given that Plaintiff’s purported fraud goes to the merits of the case, a
consideration unrelated to its timeliness. Thus, Plaintiff’s asserted fear in support of
Plaintiff’s request that filing a response to Defendants’ motion may prejudice Plaintiff’s
defense to the pending criminal charges against Plaintiff or Plaintiff’s ability to remain
compliant with his release conditions appears speculative at best. Nor does Plaintiff
explain how the 30-day extension requested by Plaintiff will allow Plaintiff to avoid the
undesirable consequences in the criminal proceeding he fears. Indeed, such request is
at odds with Plaintiff’s assertion that filing a response will jeopardize his defense in his
criminal case.
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Moreover, as the authorities cited by Defendants indicate, it is not atypical that
parallel civil actions and criminal proceedings, at least in federal courts, involving the
same subject matter be prosecuted simultaneously. Plaintiff, in his reply, states his
desire to litigate both proceedings in parallel. Significantly, Plaintiff fails to cite to any
controlling authority that requiring Plaintiff to file a response in accordance with a court
established schedule violates Plaintiff’s constitutional rights or applicable rules of the
Federal Rules of Civil Procedure. Finally, given Plaintiff’s publically stated insistence
that the purported contract at issue is in fact authentic, it is difficult to understand why
Plaintiff should hesitate to file a response to Defendants’ motion.
As Defendants note, (Doc. No. 602 at 2) Plaintiff is, of course, free to discontinue
the instant action in accordance with Fed.R.Civ.P. 41(a). To the extent Plaintiff desires
to continue the instant action, Plaintiff is required to conduct the proceedings in
accordance with applicable rules including scheduling orders relating to current motions
such as Defendants’ motion. Ultimately, the choice, including any decision not to file a
response to Defendants’ motion, is Plaintiff’s. Plaintiff is advised that regardless of
whether Plaintiff files a response, the court will proceed to consider the merits of
Defendants’ motion along with Defendants’ other pending motion to dismiss based on
fraud (Doc. No. 318). Notwithstanding the foregoing, the court finds Plaintiff should be
given an additional 5 days to file his response to Defendants’ motion.
Defendants’ request, that the court inquire whether Plaintiff’s other counsel of
record, Dean Boland, intends to remain involved in the case, should the court grant
Boland’s pending motion to withdraw (Doc. No. 579), and that Mr. Paul A. Argentieri,
Plaintiff’s remaining counsel of record, intends to pursue the case without delay, is
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premature. The court will address these matters when it considers Mr. Boland’s motion
to withdraw presently scheduled for a hearing on November 27, 2012.

CONCLUSION
Plaintiff’s request (Doc. No. 596) is GRANTED in part and DENIED in part.
Plaintiff’s response, if any, shall be filed not later than November 25, 2012; any reply
shall be filed not later than December 3, 2012.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: November 20, 2012
Buffalo, New York

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