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May 2, 2003


The opinion of the court was delivered by: Colleen Mcmahon, District Judge.

This case is before me on remand after the Second Circuit's decision in Lucente v. International Business Machines Corp., 310 F.3d 243 (2d Cir. 2002). Plaintiff now seeks to renew his motion to review Magistrate Judge Yanthis's order denying his request for the production of documents and information regarding how defendant enforced and interpreted noncompetition agreements with its employees. For the following reasons, plaintiff's motion is granted.


This case involves questions regarding the legality of defendant International Business Machines Corporation's ("IBM") cancellation of certain stock options and restricted stock IBM had awarded Lucente during his tenure at the company. The facts of this case are set forth more fully in previous decisions by both the Second Circuit and this Court. See Lucente, 310 F.3d at 243; Lucente v. International Business Machines Corp., 117 F. Supp.2d 336 (S.D.N.Y. 2000). Familiarity with those decisions is assumed.

In March of 2000, Lucente sought discovery from IBM regarding how it had interpreted and enforced noncompetition agreements that it had entered into with other employees. IBM argued that the information Lucente requested was irrelevant to the lawsuit. Magistrate Judge Yanthis denied Lucente's request, relying on this Court's decision in International Business Machines Corp. v. Martson, 37 F. Supp.2d 613 (S.D.N.Y. 1999).

Lucente then asked this Court to review Judge Yanthis's decision pursuant to 28 U.S.C. § 636(b)(1)(A), which provides that "[a] judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's judge's order is clearly erroneous or contrary to law." Id. I informed Lucente that "I would prefer to rule on your motion for summary judgment before I resolve this dispute — if you should win without having to see IBM's documents, I would prefer that you not see them." I also told him that if he wished for an immediate ruling, I would oblige his request. Lucente implicitly opted to take the former course by declining to respond to my April 6 order.

On October 5, 2000, I granted Lucente's motion for summary judgment. IBM appealed from the award of summary judgment, and Lucente cross-appealed from, inter alia, my April 6 order. The Court of Appeals reversed my award of summary judgment and remanded the case for further proceedings. The Court's decision did not mention Lucente's appeal from my April 6 order; Lucente's Notice of Appeal appears to be the only mention of that issue.

On March 13, 2003, Lucente moved to "renew" his motion to reconsider Judge Yanthis's order denying his request for discovery. IBM argues that Lucente's appeal of my April 6 order and his failure to brief the issue on appeal and secure a reversal renders Judge Yanthis's order the law of the case, which may not now be disturbed. Alternatively, IBM argues that the information Lucente seeks to discover is irrelevant.


I. The Law of the Case Doctrine Does Not Apply

The mandate rule, a subsidiary of the law of the case doctrine, "'describes the duty of the district court on remand' upon receipt of the mandate, which is the appellate court's direction to the trial court." United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)). The rule "compels compliance on remand with the dictates of the superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court." Id. (quoting United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)). In addition, "where an issue was ripe for review at the time of an initial appeal but was nonetheless foregone, the mandate rule generally prohibits the district court from reopening the issue on remand unless the mandate can reasonably be understood as permitting it to do so." Id. (citing United States v. Stanley, 54 F.3d 103, 107 (2d Cir. 1995)).

Judge Yanthis's order was not ripe for review when Lucent filed his Notice of Appeal. Where a Magistrate Judge determines a pretrial matter pursuant to 28 U.S.C. § 636(b)(1)(A), his ruling does not become final (and thus appealable pursuant to 28 U.S.C. § 1291) until the District Court reviews the Magistrate Judge's decision. LoSacco v. City of Middletown, 71 F.3d 88, 91 (2d Cir. 1995). My April 6 order was clearly not a review of Judge Yanthis's decision. Thus, Lucente's appeal from Judge Yanthis's order — if that indeed was what he was attempting to appeal from (his Notice of Appeal is not entirely clear) — was premature. He therefore did not have an opportunity to challenge the decision on appeal and Judge Yanthis's ruling is not the law of the case.

II. The Information Plaintiff Seeks to Discover is Relevant

A. The Information Lucente Seeks is Relevant to Whether IBM Acted Fraudulently, ...

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