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ATSI COMMUNICATIONS, INC. v. THE SHAAR FUND

United States District Court, S.D. New York


September 6, 2005.

ATSI COMMUNICATIONS, INC., Plaintiff,
v.
THE SHAAR FUND, LTD., et al., Defendants.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

AMENDED ORDER

On February 25, 2005, the Court granted motions to dismiss the action. ATSI Communications, Inc. v. Shaar Fund, Ltd., 357 F.Supp.2d 712 (S.D.N.Y. 2005). Mindful of the mandate of the Private Securities Litigation Reform Act, 15 U.S.C. ยง 78 u-4(c)(1), it invited the parties to submit papers on the issue of the appropriateness of sanctions. Defendants have responded with motions for sanctions that, after full briefing and together with plaintiff's response, number in the hundreds of pages. It is evident, moreover, that if the Court of Appeals were to overturn this Court's dismissal, all of the effort that has been and remains to be devoted to the sanctions issue will have been for naught. Even if the Court of Appeals affirms, the sanctions may appear in a different light. Furthermore, the ruling on the motions to dismiss is not dependent in any way upon the Court's view of the sanctions issue. Finally if plaintiff, contrary to this Court's view, has filed a legally sufficient complaint, delay of resolution of the merits of the controversy for the time necessary to determine the sanctions would be needlessly prejudicial to the plaintiff.

There also remains pending a counterclaim by defendant Corporate Capital Management ("CCM"). There have been no proceedings on the counterclaim, however, CCM has represented that it does not presently intend to pursue the counterclaim, and all parties other than plaintiff are prepared to stipulate to dismissal of the counterclaim without prejudice. Under these circumstances, the counterclaim provides no just reason for delay in the entry of judgment dismissing plaintiff's claims.

  Accordingly, the Court, pursuant to Fed.R.Civ.P. 54(b), hereby determines that there is no just reason for delay and directs the Clerk to enter judgment dismissing the action, thus rendering the dismissal appealable. The motions for sanctions are denied without prejudice to reinstatement upon the earlier of (a) the expiration of the time within which to appeal from the judgment, entry of which is directed hereby, with no such appeal having been taken, and (b) the entry on the docket of the mandate of the Court of Appeals disposing of any appeal from that judgment.

  SO ORDERED.

20050906

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