UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
September 8, 2008
ARYEH GUTMAN, ET AL., PLAINTIFFS,
ZALMAN KLEIN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Brian M. Cogan U.S.D.J.
This matter is before the Court on defendants' request for a promotion conference. The Court is not going to hold a promotion conference because it appears that all of the grounds requested are without merit for the following reasons:
Vacate stipulation. By defendants' own admission, this would be the third time they will have sought this relief. That by itself is a red flag indicative of vexatious litigation under 28 U.S.C. § 1927. No objection to either of Judge Levy's rulings was timely filed, and it appears this is simply an effort to circumvent the requirements of Fed.R.Civ. P. 72. The fact that defendants' counsel has now thought of a new ground which he inexplicably failed to raise previously is not a ground for serial relitigation. Moreover, the Anti-Injunction Act cannot be a barrier when defendants themselves consented to the stipulation in the first place. Although consent is not listed as one of the three exceptions in the Act, that is simply because it is so obvious that there is no reason to list it. If defendants believe plaintiffs have violated the stipulation, their remedy is obviously to seek relief for the violation before Judge Levy.
Alleged SME Bankruptcy Fraud. If defendants have a problem with plaintiff's failure to turn over documents concerning SME that are within the scope of Rule 26 in this action, the remedy is to seek appropriate discovery orders from Judge Levy, not to commence satellite litigation alleging some other collateral fraud involving Gutman and SME. The letter is unconvincing as to any relationship between the alleged fraud and the relevance of the documents here and seems geared to vexatiously multiplying these proceedings.
Motion to dismiss the RICO claim. Defendants' were free at any time over the last five years to move to dismiss the complaint. The fact that they wish to do so now smacks of an attempt at tactical manipulation. There is no indication of why the RICO claim is deficient.
Motion to modify briefing schedule on motion to stay trial in adversary proceeding. This issue was referred to Judge Levy. There is no colorable reason presented why I should consider revoking that Order on a mere scheduling matter.
Rule 11 motion. It is virtually inconceivable that the Court would impose sanctions based on an alleged misrepresentation as to who the parties are in this action when the Court can simply look at the docket and see. If litigants have requested who are not parties, they are not going to get relief. That is the sanction.
The Court will not prevent defendants from filing these motions if they are so inclined. The Court will review those motion papers with a fresh eye and if there is more to the proposal than contained in defendants' letter, the Court will consider it de novo. However, the Court cautions defendant in the strongest possible terms that meritless motions will not be tolerated and significant sanctions will be imposed sua sponte upon both counsel and clients if the motions have as little merit as defendants' letter indicates. Defendants may file these motions no later than September 22, 2008; plaintiff's opposition 14 days' later; defendants' reply 7 days later.
In addition, the parties will cease the practice of filing letters unless the ECF designation of the letter contains a reference to the subject matter.
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