United States District Court, S.D. New York
September 6, 2005.
OSRecovery, Inc., et al.
One Groupe International, Inc., et al.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Dear Judge Kaplan:
We represent the Doe Plaintiffs in the above-captioned matter.
We write to request that the Court reconsider its decision to
dismiss the claims of Doe Plaintiffs 73, 551, 614, and 700 for
their failure to respond to Lateko Bank's Interrogatory No. 23
within two weeks of the Court's August 1, 2005 Order.
On August 18, 2005, the Court endorsed Lateko Bank's letter
requesting that several Doe Plaintiffs be dismissed for their
failure to respond to Lateko Bank's Interrogatory No. 23 by
August 15, 2005. Included among the dismissed Plaintiffs were Doe
Plaintiffs 73, 551, 614, and 700. The Plaintiffs respectfully
submit that dismissal is a harsh remedy as to these Doe
Plaintiffs for the reasons set forth below.
First, dismissal is an unduly harsh remedy with respect to Jane
Doe 73 and John Doe 614 because both individuals provided
responses to Interrogatory No. 23 within a few days of the
Court's deadline. Indeed, Jane Doe 73's response was produced to
Lateko Bank on August 16, 2005 and John Doe 614's response was
produced on August 18, 2005. See Exhibits A and B (Does 73 &
614's Responses to Int. 23 Propounded by Lateko Bank). Lateko
Bank cannot seriously claim to have been prejudiced by such a
short delay in producing responses to a single interrogatory. Nor
can Lateko Bank seriously claim that the responses provided by
Doe Plaintiffs 73 and 614 resulted in an unfair surprise, since
these Doe Plaintiffs provided an answer that merely confirmed
what was already known about them i.e., "I state that I am not
bringing this action on behalf of anyone else." See id.
Second, dismissal is a particularly harsh remedy with respect
to John Doe 551 and John Doe 700 because extenuating
circumstances prevented both of these individuals from meeting
the August 15th deadline. Specifically, Plaintiffs' Counsel have
been advised that John Doe 551, William Mitchell, has been told by his physician that he only has sixty
(60) days to live because he is in the final stages of a
Hepatitis C infection. We also have been advised that the disease
robs Mr. Mitchell of oxygen and his brain deteriorates
incrementally each day. Consequently, Mr. Mitchell forgets easily
and has to struggle at times to keep up with everyday affairs.
See Exhibit C (August 23, 2005 E-mail from Paul Mitchell). Mr.
Mitchell's brother, Paul Mitchell (Doe Plaintiff 550), however,
has informed Plaintiffs' Counsel that William has executed his
response to Interrogatory No. 23, that he has mailed it to Paul,
and that, once Paul receives the response, he will fax it to
Plaintiffs' Counsel for production.
Similarly, John Doe 700, Jeffrey Saltzman, suffers from several
debilitating ailments. His various health concerns prevented him
from timely attending to Lateko Bank's interrogatory, but he did
execute a response on August 19, 2005, which was produced to
Lateko Bank on August 23, 2005. A copy of a letter he sent last
week describing his condition is attached as Exhibit D.
For all of the forgoing reasons, Plaintiffs' respectfully
request that the Court reconsider its August 22, 2005 endorsement
dismissing the claims of Doe Plaintiffs 73, 614, 551, and 700.
Thank you for your time and consideration.
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