Bauman v. 2810026 Canada Limited Ltd. et al
DECISION AND ORDER. Defendants' motions to enforce sanctions (Dkt. 67), is DISMISSED as moot; Defendants' motion to strike (Dkt. 70), is DISMISSED as moot and as premature. Signed by Hon. Leslie G. Foschio on 10/3/2017. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
2810026 CANADA LIMITED,
2810034 CANADA LIMITED,
FREDERICK GROUP INC., and
DAVID W. POLAK, ESQ.
Attorney for Plaintiff
3686 Seneca Street
West Seneca, New York 14224
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants
BEATA SHAPIRO, of Counsel
260 Franklin Street
Boston, Massachusetts 02110
BRIAN DEL GATTO, of Counsel
1133 Westchester Avenue
White Plains, New York 10604
On August 10, 2015, this case was referred to the undersigned by Honorable
Richard J. Arcara for all pretrial matters. The matter is presently before the court on
Defendants’ motions to enforce sanctions, filed July 31, 2017 (Dkt. 67), and to strike,
filed August 31, 2017 (Dkt. 70).
In Decisions and Orders filed in this action on April 12, 2017 (Dkt. 61) (“first fee
award”), and on May 17, 2017, in both this action (Dkt. 65), and in a related action (“the
related action”), 13-CV-00901A(F) (Dkt. 83) (“second fee award”), the undersigned
awarded Defendants a total of $ 14,177.50 in attorneys’ fees Defendants incurred in
connection with Defendants’ earlier motions to compel discovery (Dkts. 17 and 30 in this
action; Dkt. 46 in related action) (“motions to compel”), filed in both the instant action
and in the related action. The first fee award was to be paid by May 12, 2017, and the
second fee award was to be paid by June 16, 2017. See Dkt. 61 at 5; Dkt. 65 at 3. On
December 16, 2016, Defendants moved to dismiss the instant action as a further
sanction because Plaintiffs had yet to comply with the court-ordered discovery (Dkt. 49).
On July 31, 2017, Defendants filed the instant motion seeking to enforce the
sanctions (Dkt. 67) (“motion to enforce”), attaching in support the Affidavit of Beata
Shapiro, Esq. (Dkt. 67-1) (“First Shapiro Affidavit”). In support of the motion to enforce,
Defendants argue Plaintiffs have yet to pay the attorneys’ fees awarded by the first and
second fee awards despite Defendants, “in good faith, giving Plaintiffs an extra two
months to pay the first fee award and an extra month to pay the second fee award.
First Shapiro Affidavit ¶¶ 6. By Text Order entered August 2, 2017 (Dkt. 68), responses
to the motion to enforce were to be filed by August 7, 2017, with any replies filed by
August 10, 2017.
In opposition to the motion to enforce, Plaintiffs filed on August 25, 2017, the
Affirmation of David W. Polak, Esq. (Dkt. 69) (“Polack Affirmation”), attaching exhibits A
and B (Dkts. 69-1 and 69-2), explaining that Plaintiffs had yet to pay the attorneys’ fees
because the parties had been engaged in settlement discussions, with Defendants
having made a formal settlement offer which included a monetary amount and
Defendants’ agreeing to waive the awarded attorneys’ fees. Polack Affirmation ¶¶ 2-3.
Plaintiffs further asserts they did not remit the awarded attorneys’ fees to Defendants
because the settlement discussions continued until August 11, 2017, at which time
Polak requested Ms. Shapiro consent to an extension of time for Plaintiffs to submit a
response to the motion to enforce or to withdraw said motion because the attorneys’
fees were being paid. Id. ¶¶ 12-17. Plaintiffs further maintain the attorneys’ fees have
since been paid such that the motion to enforce is now moot. Id. ¶¶ 18-19 and Exh. B
(copies of Polak’s checks Nos. 9857 and 9858 made payable to Wilson, Elser,
Moskowitz, Edelman & Dicker, LLP, dated August 15, 2017, in the amounts of the
awarded attorneys' fees).
On August 31, 2017, Defendants filed in further support of the motion to enforce
a motion to strike the Polak Affirmation (Dkt. 70) (“motion to strike”), attaching the
Affirmation of Beata Shapiro, Esq. (Dkt. 70-1) (“Second Shapiro Affirmation”), and
exhibit A (Dkt. 70-2). Defendants particularly argue in support of striking the Polak
Affirmation that it was filed more than two weeks after the August 7, 2017 response
deadline, Second Shapiro Affirmation ¶¶ 3-4, and that Plaintiffs’ assertions that payment
of the awarded attorneys’ fees had been made was false, a fact that is corroborated by
Polak’s letter enclosing the checks to Shapiro dated August 25, 2017, mailed August
26, 2017, and not received by Shapiro until August 29, 2017. Id. ¶¶ 6-9. Defendants
takes further issue with Polak indicating on both checks that the funds were “paid under
protest,” which notations Defendants maintain prevent the checks from being deposited.
Id. ¶¶ 10-11 and Exh. A.
Insofar as Defendants seek a court order enforcing the awarded attorneys’ fees,
Plaintiffs’ subsequent payment of such fees, even belatedly, has rendered the motion
moot and the motion should be dismissed as such. With regard to Defendants’
assertion in support of the motion to strike that Polak misrepresented payment of the
awarded attorney’s fees had been made, as with the motion to enforce, the belated
payment of the fees renders the motion moot. Although Defendants maintain Polak’s
noting on the “memo line” of both checks that the funds were “paid under protest”
prevents the checks from being deposited, no case law or statute supporting this
argument is referenced by Defendants, nor has the court’s research revealed any such
law. Moreover, because Defendants do not assert that Defendants were unable, based
on the notations, to deposit the checks, Defendants’ argument on this point is
premature, requiring the motion to strike also be dismissed as premature.
Based on the foregoing, Defendants’ motions to enforce sanctions (Dkt. 67), is
DISMISSED as moot; Defendants’ motion to strike (Dkt. 70), is DISMISSED as moot
and as premature.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
October 3, 2017
Buffalo, New York
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