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LANKLER SIFFERT & WOHL, LLP v. ROSSI

March 19, 2004.

LANKLER SIFFERT & WOHL, LLP, DECISION STRATEGIES, L.L.C., DECISIONQUEST, INC., LEXECON INC., WILLIAM PURCELL, STEVE THEL, DONNA M. HITSCHERICK, and CORNERSTONE RESEARCH, INC., Plaintiffs, -against- A. CAL ROSSI, JR., BASIC CAPITAL MANAGEMENT, INC. and GENE PHILLIPS, Defendant; A. CAL ROSSI, JR. and BASIC CAPITAL MANAGEMENT, INC., Third-Party Plaintiffs, -against- AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY, Third-Party Defendant


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 3

OPINION

Defendants Basic Capital Management, Inc. ("BCM") and A. Cal Rossi, Jr. ("Rossi") have moved pursuant to Federal Rules of Civil Procedure 52 (b), 59 and 60 for additional findings, for a new trial, to alter or amend the judgment, or for relief from the judgment. BCM and Rossi seek to vacate the previously-entered judgments, or in the alternative to amend the judgments to reflect the federal rate of post-judgment interest. Plaintiffs Lankier, Siffert & Wohl LLP ("LSW"), Decision Strategies, L.L.C., ("Decision Strategies"), DecisionQuest, Inc. ("DecisionQuest"), Lexecon, Inc. ("Lexecon"), Steve Thel ("Thel") and Donna M. Hitscherich ("Hitscherich") (collectively, the "Plaintiffs"), oppose the motion of BCM and Rossi and request that the Court certify partial final judgment pursuant to Fed.R.Civ.P. 54(b) on the account stated claims which were previously decided in favor of the Plaintiffs. For the reasons set forth below, the motion of BCM and Rossi to vacate the judgment is denied, the motion of BCM and Rossi to amend the judgment is granted, and the request by Plaintiffs to certify partial final judgment is granted.

Prior Proceedings

  Plaintiffs filed their complaint in this action on December 19, 2002, alleging non-payment of attorneys' fees and other related fees. The complaint includes 42 claims, including Page 4 causes of action by the various plaintiffs for breach of contract, account stated, conversion, unjust enrichment and tortious interference with contractual relations.*fn1 Defendants Rossi and BCM filed a third party complaint against American International Specialty Lines Insurance Company ("AISLIC") on February 24, 2003.

  The above-named plaintiffs (but not Purcell and Cornerstone) filed a motion for partial summary judgment on the account stated claims on April 29, 2003. This Court granted the motion on October 10, 2003. See Lanker, Siffert & Wohl v. Rossi, 287 F. Supp.2d 398 (S.D.N.Y. 2003). The Plaintiffs then served Notices of Settlement of Judgment on BCM and Rossi on or about October 27, 2003, and filed the judgments with the Clerk of Court. This Court signed the judgments of the Plaintiffs on November 3, 2003, and they were entered on November 5, 2003.

  On November 1, 2003, BCM and Rossi served on the Plaintiffs a response to the Notices of Settlement of Judgment, contesting the propriety of entry of judgment on the account stated claims. That document, however, was not received by this Court before the judgments were signed. On November 19, 2003, BCM and Rossi formally moved pursuant to Rules 52(b), 59 and 60 for additional findings, for a new trial, to alter or amend the Page 5 judgment, or for relief from the judgment. The Plaintiffs have responded both to BCM's and Rossi's initial response to the Notices of Settlement of Judgment, and to their motion, and have requested that the Court certify final judgment on the account stated claims pursuant to Rule 54(b). Oral argument was heard on the motion on January 21, 2004, at which time the motions were deemed fully submitted.

 The Case is Reopened

  Following the entry of the judgments by the moving Plaintiffs on November 4, 2003, this case was inadvertently closed, despite the fact that numerous claims remain unresolved. Accordingly, the case is hereby reopened.

 Discussion

  Defendants have brought this motion on a variety of procedural grounds pursuant to Rules 52(b), 59 and 60. The motion is most appropriately treated as a motion for relief from the operation of the judgment pursuant to Rule 60(b)(6), or alternatively as a motion to alter or amend the judgment pursuant to Rule 59(e). "Given the similarity between [Rules 52(b) and 59(e), it is not critical to the court's analysis whether the plaintiff intends to rely upon one or the other or both of these rules." Acruillo v. Police Benevolent Ass'n of New York State Page 6 Troopers, 1994 WL 494639, at *2 (N.D.N.Y. Aug. 15, 1994). There has been no trial in this case, and a motion for a new trial under Rule 59(a) is therefore inappropriate. Defendants seek to have the judgments which were entered on November 5 withdrawn as procedurally improper, or in the alternative to have the judgments modified to apply the federal post-judgment interest rate rather than the New York rate. The former request will be considered pursuant to Rule 60(b)(6), and the latter pursuant to Rule 59(e).

  While the Plaintiffs oppose the motion to withdraw the judgments, they have asked that this Court make a determination, pursuant to Rule 54(b), that there is no just reason for delay of entry of judgment. Rule 54(b) provides, in relevant part:
When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
Fed.R.Civ.P. 54(b).

  Defendants first argue that the Plaintiffs are not entitled to judgment under Fed.R.Civ.P. 58, which lays out the procedure for entry of judgment. As defendants point out, Rule 58 is "designed to encourage all reasonable speed in formulating and entering the judgment when the case has been decided." United Page 7 States ex rel. Tennessee Valley Authority v. An Easement and RiGht-of-Wav Over Four Tracts of Land, etc., 537 F. Supp. 4, 6 (E.D. Tenn. 1981) (quoting 11 Wright & Miller, Federal Practice and Procedure § 2781) (emphasis added). Plaintiffs, however, have not claimed a right to judgment under Rule 58. Rule 58(a) (2) is explicitly made "[s]ubject to Rule 54(b)" which pertains to judgments involving multiple claims or multiple parties, and Rule 54(b) is, accordingly, the relevant Rule in this context.

  Defendants argue that even if Rule 54(b) is the appropriate provision, the Notices of Settlement of Judgment were not properly submitted as a request for entry of judgment pursuant to Rule 54(b). Plaintiffs stated in the Notices that "Judgment may be entered on the 3rd day of November, 2003," which was seven days after filing. According to Local Civil Rule 6.1, the parties opposing a motion are entitled to a least ten days to file affidavits and memoranda, with at least five days thereafter allotted for the movants to reply. Plaintiffs also did not submit a notice of motion or a memorandum of law with the Notices of Settlement.

  Plaintiffs reply that they were following Local Civil Rule 77.1, entitled "Submission of Orders, Judgments and Decrees," which provides that "[u]nless the form of order, judgment or decree is consented to in writing, or unless the court otherwise directs, three (3) days' notice of settlement is required," and "[o]ne (1) Page 8 day's notice is required of all counter-proposals." As defendants argue, Rule 77.1 contemplates submissions on issues already decided by the Court. On a matter which will require a ...


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