The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.
On February 12, 2003, counsel for defendant Taubman wrote to the Court regarding allegedly vexatious litigation by an alleged class member (and attorney) notwithstanding the fact that the approved settlement in this case embodied a release by class members of all relevant claims. The letter on its face indicates that a copy was sent to the alleged class member, Caleb B. Leys, Esq. Although Mr. Leys did not respond, the Court did not act on the basis of the letter. It instead endorsed an order indicating that Taubman's counsel was free to move for appropriate relief. [Docket Item 722]
Taubman, later joined by defendant Brooks, subsequently filed a motion for an order to compel Leys to comply with the settlement and for related relief. [Docket Items 723, 726] Although the record indicates that Leys was served, he defaulted on the motions, which the Court in due course granted. [Docket Item 729]
The Court now is in receipt of a letter from Leys which gives no indication that a copy was sent to any party in this action. It begins with the sarcastic comment that "[a]pparently, it is proper to communicate with the Court by ex parte communication" and goes on to say that "Plaintiff will respond in kind." Leys thereupon denounces Taubman's counsel for the February 12, 2003 letter which he implicitly suggests was an improper ex parte communication. He goes on to argue that the Court was misled into issuing the order granting the Taubman and Brooks motions and seeks Rule 11 sanctions.
To begin with, the February 12, 2003 letter was not an ex parte communication. A copy was sent to Leys, as is evidenced by his reference to it in his recent missive. Even if it had been, it would have been harmless because the Court acted only the basis of motions that were duly noticed and served and that gave Leys a full opportunity to respond, albeit an opportunity of which he failed to avail himself. And in any case, nothing Leys has pointed to, even if his facts were correct, would justify his action in seeking relief from the Court by a letter which he deliberately failed to serve on his adversaries.
Accordingly, the application in Leys' letter is denied, albeit without prejudice to the 2 filing of a motion with proof of due service. Leys is hereby ordered not to send correspondence or other written communications to the Court without simultaneously sending copies to opposing counsel by the same means used to transmit the originals to the Court.
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