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Taormina v. International Business Machines Corp.

January 30, 2008

JOHN TAORMINA, PLAINTIFF,
v.
INTERNATIONAL BUSINESS MACHINES CORP., DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On October 1, 2007, Defendant requested that the Clerk of the Court enter a Notice of Default with regard to its counterclaims, see Dkt. Nos. 37-38, which the Clerk of the Court entered on October 3, 2007, see Dkt. No. 40. Defendant also filed a motion to dismiss for lack of prosecution. See Dkt. No. 39. On October 18, 2007, Defendant filed a motion for default judgment. See Dkt. No. 41. On December 21, 2007, Plaintiff filed a letter motion requesting additional time to seek counsel and to respond to Defendant's motions. See Dkt. No. 42. The Court granted Plaintiff's request and directed him to provide a copy of its order to his new counsel or, if he was unable to retain counsel, to file his responses to Defendant's motions by January 22, 2008. See Text Order dated January 2, 2008. Despite the Court having granted him a further opportunity to do so, Plaintiff did not file a response to Defendant's motions.

II. DISCUSSION

A. Defendant's Motion to Dismiss Plaintiff's Complaint for Lack of Prosecution

Under Rule 41(b), "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). In the present case, other than filing a response to Defendant's motion to dismiss for failure to state a claim in August 2005, Plaintiff has not taken any affirmative steps to prosecute this action. Moreover, despite the fact that the Court has provided him with an extension of time in which to do so, Plaintiff has neither notified the Court that he has retained counsel nor has he responded to either of Defendant's pending motions. Accordingly, the Court grants Defendant's motion to dismiss Plaintiff's complaint for lack of prosecution.

B. Defendant's Motion for Entry of a Default Judgment with Regard to its Counterclaims

On June 30, 2005, Defendant filed its counterclaims. See Dkt. No. 11. Subsequently, on February 12, 2007, Defendant filed its answer with amended counterclaims. See Dkt. No. 29. In its first counterclaim, based upon the theory of unjust enrichment, Defendant asserts that Plaintiff would be unjustly enriched if he were allowed to retain the financial equivalent of the benefits IBM conferred upon Plaintiff pursuant to the signed Release when said benefits were conferred by IBM in exchange for Plaintiff's adherence to the terms of the Release. IBM seeks restitution of the financial equivalent of the benefits conferred upon Plaintiff by IBM pursuant to the Release and the Resource Action.

See Dkt. No. 29 at ¶ 71.

In its second counterclaim, based upon a breach-of-contract theory, Defendant contends that, [u]nder the Release, Plaintiff covenanted that he would not sue IBM under ERISA or the NYSHRL, including for claims related to his employment with IBM or the termination of his employment, and that if he did, he would pay all costs and expenses of defending against such suit incurred by IBM or associated with IBM, including said parties' attorneys' fees. . . . In his Complaint . . ., Plaintiff asserts a claim against IBM under ERISA and the NYSHRL arising from the termination of his employment, i.e.,, the very claims that he waived under the Release. . . . . . . Initiation of this action has caused IBM to incur, and will continue to cause IBM to incur through the conclusion of this action and any subsequent or related proceedings, costs and expenses, including but not limited to attorneys' fees, in an amount not yet known but which will be ascertainable by the time judgment is entered.

See id. at ¶¶ 75-77.

Finally, in its third counterclaim, Defendant argues that "it is entitled to a declaratory judgment that Plaintiff will remain liable to IBM for the costs and expenses described in IBM's Second Counterclaim, including attorneys' fees, incurred by IBM in any subsequent or other proceedings related to this action." See id. at ¶ 83.

Plaintiff has never filed an answer, or otherwise responded, to these counterclaims. In its motion for entry of a default judgment, Defendant seeks an award of $12,578.14 in damages, see Notice of Motion at 1, "representing legal fees incurred from August 4, 2005 to the present for preparing and filing: (1) IBM's motion to dismiss Plaintiff's NYSHRL and ERISA claims; (2) IBM's counterclaims regarding Plaintiff's NYSHRL and ERISA claims; (3) the request for certificate of entry of default on IBM's counterclaims; and (4) IBM's notice of motion for judgment by default. See Affirmation of Allan S. Bloom, filed October 18, 2007, at ¶ 7.

Pursuant to the Release that Plaintiff signed, he agreed that if he violate[d] this covenant not to sue by suing IBM or those associated with IBM, [he] agree[d] that [he] would pay all costs and expenses of defending against the suit incurred by IBM or those associated with IBM, including reasonable attorneys' fees, and all ...


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