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Fisher v. Smithline Beecham Corp.

March 26, 2009

STEPHANIE A. FISHER, MARK C. FISHER, AND MARLENE L. FISHER, PLAINTIFFS,
v.
SMITHKLINE BEECHAM CORPORATION, DOING BUSINESS AS GLAXOSMITHKLINE, DEFENDANT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION ORDER

JURISDICTION

This case was referred to the undersigned by Hon. Richard J. Arcara on June 18, 2007 for all pretrial matters. It is presently before the court on Defendant's Motion for Reconsideration of this court's sanctions order filed October 14, 2008 (Doc. No. 133), and Defendant's Motion to Confirm Tolling of Time to File Objections under Federal Rule of Civil Procedure 72(a) filed October 14, 2008 (Doc. No. 108).

BACKGROUND

On December 21, 2007, Plaintiffs moved for sanctions against Defendant and its attorneys pursuant to Fed.R.Civ.P. 16(f) and this court's ADR Plan § 5.8G (Doc. No. 79) ("Plaintiffs' motion"). Plaintiffs' motion was supported by the Declaration of Frances M. Phares, Esq. (Doc. No. 80) ("Phares Declaration"), and the Affidavit of R. Scott DeLuca, Esq. in Support of Plaintiffs' Motion for Sanctions (Doc. No. 81) ("DeLuca Affidavit").*fn1

On January 22, 2008, Defendant and its attorney, Franklin B. Brannen, Jr. ("Brannen") filed their opposition to Plaintiffs' motion (Doc. No. 93) ("Defendant's Response to Sanctions Motion") along with Exhibits 1 and 2, and the Affidavit of Frank P. Brannen, Jr. in Support of Defendant's Opposition to Plaintiffs' Sanction Motion (Doc. No. 94) ("Brannen Affidavit"). On January 29, 2008, Plaintiffs filed Plaintiffs' Reply Memorandum of Law in Further Support of Plaintiffs' Motion for Sanctions (Doc. No. 97) ("Plaintiffs' Reply"). Oral argument was deemed unnecessary.

On September 29, 2008, the court filed its Decision and Order granting Plaintiffs' motion against Defendant and Brannen and denying Plaintiffs' sealing motion (Doc. No. 106) ("the D&O" or "the Sanctions Order"). The court also directed Plaintiffs to submit an affidavit of hourly rates in further support of Plaintiffs' motion. On October 8, 2008, Plaintiffs filed the Declaration of Frances M. Phares, Esq. providing the hourly rate information (Doc. No. 107) ("Phares Fee Declaration") as directed by the court. Although requested by the D&O ("D&O" at 22), Defendant and Brannen failed to file any opposition to the Phares Fee Declaration.*fn2

As noted, Defendant filed, on behalf of itself and Brannen, on October 14, 2008, Defendant's Motion for Reconsideration (Doc. No. 133) ("Defendant's reconsideration motion"), and Defendant's Motion to Confirm the Tolling of the Time to File Objections to the D&O (Doc. No. 108) ("Defendant's tolling motion"). Plaintiffs do not oppose Defendant's tolling motion. In support of Defendant and Brannen's reconsideration motion, Defendant filed, under seal, Defendant's Objections to the D&O and Defendant's reconsideration motion (Doc. No. 133) and the Affidavit of Franklin P. Brannen, Esq. (Doc. No. 134) ("Brannen Reconsideration Affidavit").

On October 27, 2008, Plaintiffs filed Plaintiffs' Opposition to Defendant's Motion for Reconsideration of Sanctions Order (Doc. No. 111) ("Plaintiffs' Opposition") along with the Declaration of Frances M. Phares, Esq. in Support of Plaintiffs' Opposition to Defendant's Motion for Reconsideration (Doc. No. 111-2) ("Phares Declaration in Opposition"). On October 30, 2008, Defendant and Brannen filed a Reply in Support of Defendant's Objections and Motion for Reconsideration (Doc. No. 136) ("Defendant's Reply").

By letter dated November 7, 2008, Plaintiffs requested leave to file a sur-reply to Defendant's Reply along with a proposed draft of the Declaration of Frances M. Phares, Esq. in Support of Plaintiffs' Sur-Reply (Doc. No. 113). By letter dated November 10, 2008, Defendant and Brannen opposed Plaintiffs' request (Doc. No.114). On November 17, 2008, the court GRANTED Plaintiffs' request (Doc. No. 116). On November 19, 2008, Plaintiffs filed Plaintiffs' Sur-Reply to Defendant's Reply (Doc. No. 117) ("Plaintiffs' Sur-Reply") along with the Declaration of Frances M. Phares, Esq. in Support of Plaintiffs' Sur-Reply (Doc. No. 117-2) ("Phares Sur-Reply Declaration").

On December 8, 2008, the court GRANTED Defendant's application to file under seal Defendant's Response to Plaintiffs' Sur-Reply, (Doc. No. 119); on the same date, Defendant's Response to Plaintiffs' Sur-Reply was filed under seal (Doc. No. 120) ("Defendant's Response to Plaintiffs' Sur-Reply").*fn3 Oral argument on Defendant's reconsideration motion was deemed unnecessary.

Based on the following, Defendant's tolling motion (Doc. No. 108) is GRANTED; and Defendant and Brannen's reconsideration motion (Doc. No. 133) is DENIED.

FACTS*fn4

This court's Alternative Dispute Resolution Plan ("the ADR Plan" or "the Plan"), adopted August 22, 2005, provides for mandatory mediation of civil cases as directed by the court. The ADR Plan seeks to provide a court-administered mediation program as a means of achieving a speedy and cost-effective resolution of civil actions pending before the court as an alternative to formal litigation procedures. Id. § 1.2A. To promote its objectives, the ADR Plan provides that "[m]ediation [under the ADR Plan] is confidential and private," prohibits the disclosure of "confidential information acquired during mediation without the consent of the disclosing party," ADR Plan § 5.10A, which information includes "written and oral communications made in connection with or during the mediation session, any positions taken and any views of the merits of the case formed by any participant, including parties, counsel and the ...


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