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3801 Beach Channel Inc. v. Shvartzman


October 29, 2007


The opinion of the court was delivered by: James Orenstein, Magistrate Judge


On October 12, 2007, I scheduled an inquest as to damages on the remaining state law claims in this case for November 14-15, 2007. Docket Entry ("DE") 70. On October 26, 2007, attorney Stephen Pergolizzi ("Pergolizzi"), counsel for all defendants, filed two documents. First, in a letter addressed to the Honorable Carol B. Amon, United States District Judge (and incorrectly styled as a motion on the docket), counsel requested a pre-motion conference in anticipation of seeking leave to withdraw as counsel. DE 71. In conjunction with seeking such relief, and apparently assuming leave to withdraw would be granted and that new counsel would be granted a delay to become familiar with the case, Pergolizzi also requested adjournments of the deadline I had set for filing motions in limine and of the inquest itself. Id. Second, minutes after filing his request for a pre-motion conference, Pergolizzi filed a notice of appeal of Judge Amon's order of September 28, 2007 (DE 69), which, on the basis of my Report and Recommendation dated August 24, 2007 (DE 67) (the "R&R"), struck the defendants' Answer, dismissed the plaintiffs' RICO cause of action, and referred to me for a damages inquest (in anticipation of the entry of a default judgment) the remaining state law claims. DE 72.

The notice of appeal vests jurisdiction over this case in the United States Court of Appeals for the Second Circuit, and divests this court of "its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982); Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004). Accordingly, despite the fact that the appeal appears to be frivolous and subject to immediate dismissal for multiple reasons,*fn1 until the appeal is resolved I lack the authority to conduct the inquest or to rule on motions in limine affecting the evidence to be adduced at that proceeding.

I therefore adjourn each deadline without date. Once the appeal is resolved and jurisdiction restored to this court, I will require motions in limine to be submitted within two days (the amount of time remaining for such submissions at the time the record on appeal was transmitted to the appellate court), and will set a date for the inquest.

Notwithstanding the notice of appeal, however, this court retains the authority to rule on collateral matters. Tancredi, 378 F.3d at 225 (citing Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir.1998); Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir.1980)). There are two such collateral matters now pending: Pergolizzi's request for a pre-motion conference in anticipation of a motion to withdraw as counsel, and Pergolizzi's obligation to purchase, at his own expense, the minutes of a conference that he failed to attend as required and to submit a certification no later than November 12, 2007, attesting to his compliance with the foregoing directive. DE 71; DE 70. The latter obligation remains in effect, and I expect Pergolizzi's timely compliance notwithstanding the notice of appeal or his desire to withdraw. As to the request to seek leave to withdraw, that is a non-dispositive pretrial matter properly addressed to me rather than Judge Amon; I dispense with the pre-motion conference requirement and set a motion schedule below.

For the reasons set forth above, I adjourn without date the inquest previously scheduled for November 14, 2007 (as well as the interim deadline for filing motions in limine). In addition, the pre-motion conference requirement is waived; defendants' counsel of record shall file a motion to withdraw, in full compliance with the requirements of Local Civil Rule 1.4, no later than November 2, 2007. Any party opposing the motion must submit its written opposition by November 7, 2007.


JAMES ORENSTEIN U.S. Magistrate Judge

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