United States District Court, S.D. New York
October 12, 2004.
North American Mortgage Investors, Inc., Plaintiff,
FAS Holdings, Inc., Defendant.
The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND ORDER
Having considered the most recent correspondence of counsel,
the Court makes the following Scheduling Order.
The letter of defendant's counsel dated September 17, 2004
quite properly reminds all concerned that the Court delayed
pre-trial discovery during the pendency of the parties'
cross-motions for summary judgment. That is the better practice,
subject to the remedies of Rule 56(f), Fed.R. Civ. P., in a case
where a dispositive motion, if granted, would do away with the
need for expensive and time-consuming discovery. However, in the
case at bar the Court's Memorandum Opinion and Order dated August
20, 2004 denied both motions, while identifying a number of
genuine issues concerning material facts. As counsel for
defendant say without contradiction, "plaintiff has not produced
a single document or presented a single witness for deposition."
Wilson letter dated September 17, 2004 at 1. It is equally
apparent from the letter of plaintiff's counsel dated September 16, 2004 that additional discovery is required
from defendant. Consequently the Court's assumption that
"pre-trial discovery has been completed," August 20, 2004 Opinion
at 8, was unrealistic.
In these circumstances, the Court makes the following Order:
1. All dates specified in the Conclusion to the August 20, 2004
Order are vacated. This includes the trial date of November 15,
2. All discovery must be completed on or before January 21,
2005. This date will permit counsel for defendant to complete
their two-month assignment on a criminal trial in the District of
Kansas, scheduled to begin on October 12, 2004, and then turn
their attentions to the final preparation of the case at bar.
3. The date of October 18, 2004, appearing in ¶ 4 of the August
20, 2004 Order, is extended to February 11, 2005.
4. The date of October 25, 2004, appearing in ¶ 5 of the August
20, 2004 Order, is extended to February 22, 2005.
5. The date of November 10, 2004, appearing in ¶ 6 of the
August 20, 2004 Order, is adjourned until March 2, 2005, at 10:30
a.m. in Courtroom 17C, 500 Pearl Street.
6. Trial will commence on March 7, 2005 at 9:30 a.m. in
Courtroom 17C, 500 Pearl Street. 7. This Scheduling Order gives the parties and counsel the
maximum flexibility that the Court's calendar permits. These
dates are peremptory. Counsel should regard themselves as bound
for trial of this case in this Court on March 7, 2005.
8. By separate Order the case will be referred to a Magistrate
Judge for supervision of discovery and preparing the case for
trial. The Magistrate Judge will be respectfully requested to
conform administration of the case to the dates specified in this
9. As discovery progresses, counsel are directed to continue to
discuss with each other in good faith the possibility of
settlement. If counsel for both parties (mutuality is a
necessary element) form the belief that this Court could assist
by a settlement or mediation conference, they should advise
It is SO ORDERED.
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