Albino v. Global Equipment USA, Ltd.

Filing 129

DECISION AND ORDER granting in part and denying in part 123 Motion to Seal consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 4/17/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ALEXANDER ALBINO,
Plaintiff,
-vs-

DECISION and ORDER
No. 6:14-cv-06519(MAT)

GLOBAL EQUIPMENT USA, LTD.,
Defendant.

GLOBAL EQUIPMENT USA, LTD.,
Defendant/Third-Party Plaintiff,
-vsARVCO CONTAINER CORP., H. P. NEUN
COMPANY, INC., ISOWA AMERICA, INC.
and ISOWA CORPORATION,
Third-Party Defendants.

I. Introduction
This

is

(“Plaintiff”)

a

diversity

against

action

Global

brought

Equipment

by

USA,

Alexander
LTD.

Albino

(“Global”),

alleging causes of action based on strict products liability and
negligence as the result of injuries Plaintiff sustained while
employed at third-party defendant H.P. Neun Company, Inc. (“H.P.
Neun”). Global has commenced a third-party action asserting claims
for contribution and indemnification against Arvco Container Corp.
(“Arvco”), H.P. Neun, ISOWA Corporation (“IC”), and ISOWA America,
Inc. (“IAI”). Presently before the Court is Global’s Motion to Seal

(Dkt #123). IAI and IC have filed a joint Response in partial
opposition to the Motion to Seal (Dkt #127). Global did not file
any reply papers.
For the reasons discussed herein, Global’s Motion to Seal is
granted in part and denied in part.
II. Background
On April 12, 2017, the Court (Feldman, M.J.) granted the
parties’ Stipulated Protective Order (“SPO”) (Dkt #96), which
provides any party wishing to file documents or information defined
as “confidential” in the SPO must “file redacted versions of
confidential documents on CM/ECF and simultaneously file a motion
to

seal

such

documents

pursuant

to

WDNY

Local

Rule

5.3

and

Administrative Procedures Guide for Electronic Filing, Section
2(o)(i).” The Court (Feldman, M.J.) also issued an Order clarifying
that the party filing a document under seal must file a “redacted
public version of the document in which only the specific material
that a party claims to be confidential is redacted from the
document[.]” (Dkt #97). The party wishing to claim confidentiality
over the documents to be sealed must provide the district court
with “sufficient information to allow a determination of whether
good cause exists to depart from the presumption against sealing
court records from public inspection.” (Id.).
Global’s Motion to Seal requests an order sealing, in their
entirety

the

following

Exhibits

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submitted

in

support

of

its

opposition papers to the pending dismissal motions: Exhibit B
(Dkt #124-2), Exhibit C (kt #124-3), Exhibit D (Dkt #124-4),
Exhibit E (Dkt #124-5), Exhibit F (Dkt #124-6), and Exhibit G (Dkt
#124-7). IAI and IC contend that most of these exhibits include
hundreds of extraneous pages Global does not cite or rely upon in
its Memorandum of Law in Opposition to IAI and IC’s Motions to
Dismiss. Additionally, IAI and IC contend four of the six exhibits
include a number of pages that neither IAI nor IC have designated
as confidential, and one of the exhibits (Exhibit C) in its
entirety has not been designated as confidential.
IAI and IC request that the Court order Global to (1) strike
extraneous documents and exhibits from its opposition papers; and
(2) re-file those opposition papers; but (3) file under seal only
the discrete portions of those opposition papers that IAI and IC
assert are confidential. Global did not submit any reply to IAI and
IC’s Response to the Motion to Seal.
III. Discussion
A.

Applicable Legal Principles

When determining whether a “judicial document” may be filed
under seal, the court must balance the common law right of access
against any “competing considerations,” such as “the danger of
impairing law enforcement or judicial efficiency and the privacy
interests of those resisting disclosure.” Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (quotation omitted). In

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addition to the common law right of access, the press and public
enjoy a qualified First Amendment right of access to judicial
documents. Id. Under both rubrics, the party seeking to file a
document under seal bears the burden of demonstrating that sealing
is warranted. DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818,
826 (2d Cir. 1997).
However, a court “must first conclude that the documents at
issue are indeed ‘judicial documents[,]’” Lugosch, 435 F.3d at 119,
which means that they are “relevant to the performance of the
judicial

function

and

useful

in

the

judicial

process.”

Id.

(quotation omitted). “The presumption of access is entitled to
great weight if a party submits the document to the court for
purposes of adjudication.” United States v. Sattar, 471 F. Supp.2d
380, 386 (S.D.N.Y. 2006) (citing Lugosch, 435 F.3d at 123). In
Lugosch, the Second Circuit held that “documents submitted to a
court in support of or in opposition to a motion for summary
judgment are judicial documents to which a presumption of immediate
public access attaches under both the common law and the First
Amendment.” Lugosch, 435 F.3d at 126. Courts in this Circuit have
held the documents submitted in support of or in opposition to a
motion to dismiss likewise are entitled to the presumption of
access and therefore are “judicial documents.” See, e.g., Raffaele
v. City of N.Y., No. 13-CV-4607 KAM VVP, 2014 WL 2573464, at *1
(E.D.N.Y. June 9, 2014) (plaintiff’s memorandum of law was “clearly

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essential to the court’s determination of the defendants’ motion to
dismiss the complaint,” and supporting exhibit was “material to the
facts and arguments discussed” therein; finding that a strong
presumption of access applied to both).
B.

The Exhibits at Issue
1.

Exhibit B

IAI and IC support Global’s request to file Exhibit B, which
includes a Resolution by IAI’s Board of Director effective May 6,
2012, under seal. Exhibit B was designated as confidential in the
SPO and includes confidential non-public information concerning the
management of IAI. The Court agrees that it is not central to the
resolution

of

IAI

and

IC’s

motions

to

dismiss,

and

is

a

non-judicial document that is not entitled to the presumption of
disclosure. See Weisman Celler Spett & Modlin, P.C. v. Trans-Lux
Corp., No. 12 CIV. 5141 JMF, 2012 WL 5512164, at *3 (S.D.N.Y. Nov.
14, 2012) (allowing board of directors’ minutes to be sealed where
they were not considered in ruling on motions). The Court finds
that Exhibit B is a non-judicial document not entitled to the
presumption of disclosure and should remain filed under seal.
2.

Exhibit C

Exhibit C includes emails between IAI and H.P. Neun concerning
IAI’s sales of parts. IAI and IC argue that these emails were never
designated as confidential in the SPO and, moreover, are irrelevant
to the Court’s resolution of the Motions to Dismiss for Lack of
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Personal Jurisdiction and Failure to State a Claim. Therefore, IAI
and IC contend, they should be struck or, in the alternative, filed
publicly.
As noted above, Global did not file a reply to IAI and IC’s
Response to its Motion to Seal. Therefore, the Court assumes that
Global does not object to either having the emails stricken or
filed publicly.

However, the Court cannot say, at this juncture,

that Exhibit C is irrelevant to resolution of the issues presented
in IAI and IC’s Motion to Dismiss for Lack of Personal Jurisdiction
and Failure to State Claim. Accordingly, the Court finds that
Exhibit C is comprised of judicial documents that should be filed
publicly.
3.

Exhibit D

Exhibit D includes emails between IAI and IC concerning IAI’s
parts sales to H.P. Neun, which Global argues relate to the agency
question. A number of the emails in Exhibit D have been designated
as confidential by a confidential stamp on the document. IAI and IC
argue that the Court need not address whether IAI acted as IC’s
agent in order to resolve IAI’s and IC’s Motions to Dismiss. IAI
and IC contend that Exhibit D should be stricken as irrelevant or,
in the alternative, only the confidential documents should be filed
under seal.
As noted above, Global did not file a reply to IAI and IC’s
Response to its Motion to Seal. Therefore, it apparently does not

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object to Exhibit D being stricken. However, the Court cannot say,
at this juncture, that Exhibit D is irrelevant to resolution of the
issues presented in IAI and IC’s Motion to Dismiss for Lack of
Personal Jurisdiction and Failure to State Claim. Accordingly, the
Court finds that Exhibit C is comprised of judicial documents that
should be filed publicly except for those emails that bear a
“confidential” stamp, which should be filed under seal.
4.

Exhibits E, F, and G

Exhibits E, F, and G consist of three unabridged deposition
transcripts. Global cites to approximately two dozen pages from
each. These pages are as follows:
Exhibit Letter

Pages of Transcript Cited

E

54-55, 61-62, 66-69,
73, 78, 97

F

90, 123

G

35-43, 45

IAI and IC argue that Global’s use of these full deposition
transcripts violates Western District of New York Local Rule
7(a)(4), which states that “[a] party seeking or opposing any
relief under the Federal Rules of Civil Procedure shall file only
the

portion(s)

of

a

deposition,

interrogatory,

request

for

documents, request for admission, or other supporting material that
is pertinent to the application.” IAI and IC request that Global be
directed to re-file Exhibits E, F, and G including only the pages

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cited in its Memorandum of Law and set forth in the above table, in
compliance with Local Rule 7(a)(4).
IAI and IC state that these Exhibits need not be filed under
seal with one exception: Exhibit E, the transcript of Ronald G.
Miller’s

deposition,

at

page

67,

lines

4-6,

which

includes

confidential information concerning IAI’s commission structure.
Because Global only mentions IAI’s commission in general terms in
its Memorandum of Law, IAI does not request that any portion of
Global’s Memorandum of Law be filed under seal.
It does not appear that IAI’s commission structure is not
relevant to the issues to be decided in connection with the pending
Motions to Dismiss for Lack of Jurisdiction and Failure to State a
Claim. Furthermore, on August 24, 2017, IAI designated certain
portions of Miller’s June 29, 2017 deposition transcript, as
Confidential-Limited Eyes Only, pursuant to the SPO. (Declaration
of Steven Hamlin (“Hamlin Decl.”) (Dkt #127-1), ¶ 3). A copy of
IAI’s letter is attached to the Hamlin Declaration as Exhibit A
(Dkt #127-2). Accordingly, the Court agrees that this portion of
Miller’s deposition transcript (Exhibit E, page 67, lines 4-6)
should be redacted when Global re-files the relevant portions of
Exhibit E.
IV.

Conclusion
For the foregoing reasons, Global’s Motion to Seal (Dkt #123)

is granted in part and denied in part. Accordingly, it is hereby

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ORDERED that Exhibit B shall be filed under seal; and it is
further
ORDERED that Exhibit C shall be filed publicly; and it is
further
ORDERED that Exhibit D shall be filed publicly, except for
those emails that bear a “confidential” stamp, which shall be filed
under seal; and it is further
ORDERED that the relevant portions of Exhibits E, F, and G
shall be filed
•

pursuant to Local Rule 7(a)(4), as follows:

Exhibit E, pages 54-55, 61-62, 66-69, 73, 78, and 97,
shall be filed publicly, except that page 67, lines 4-6
shall be redacted;

•

Exhibit F, pages 90 and 123 shall be filed publicly; and

•

Exhibit G, pages 35-43 and 45 shall be filed publicly;
and

•

The remaining portions of Exhibits E, F, and G are
stricken from the record; and it is further

ORDERED

that

Global

file

an

unredacted

version

of

Memorandum of Law.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 17, 2018
Rochester, New York

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its