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Nonie Pegoraro v. Ernesto Marrero

August 1, 2012


The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge


Before the Court is a motion by the defendants and non-parties Lisa Lee ("Lee") and Louis Panarella ("Panarella") "for reconsideration of the Order, dated May 29, 2012, and upon reconsideration, [an order] quashing subpoenas seeking the depositions of defendant Alan Aviles ("Aviles") and non-parties Lisa Lee and Louis Panarella, and granting defendants and non-parties costs, fees, and disbursements." The plaintiff opposes the motion.

Movants' Contentions

The movants seek reconsideration of the May 29, 2012 order, denying their motion "for an order, pursuant to Rules 26, 37, and 45 of the Federal Rules of Civil Procedure" ("motion to quash the subpoenas"*fn1 ). The movants make two arguments, namely that the plaintiff:

(1) "should not be permitted to reopen discovery and obtain depositions by materially misleading the court"; and (2) "should not be awarded attorneys' fees." With respect to the first argument, the movants contend that "it is factually incorrect that defendants misled plaintiff by not informing her that defendants objected to the deposition until after the close of discovery," because the "plaintiff was informed on multiple occasions, and prior to the close of discovery, that defendants objected to plaintiff's proposed depositions of Alan Aviles, Lisa Lee, and Louis Panarella." According to the movants, an e-mail message, "dated June 9, 2011, a month before discovery was due to close, . . . refers to prior conversations between defendants and plaintiff's counsel in which [the movants'] position [that they would not be produced for their depositions] had been stated," but the plaintiff "waited a month, until July 11, 2011, four days before the close of discovery, to move to compel depositions of Aviles, Lee, and Panarella." Moreover, the movants assert that Exhibit B to the declaration of their counsel, Daniel Chiu ("Chiu"), demonstrates that, "on June 30, 2011, in that same period following the June 9, 2011 e-mail, the parties agreed to a deposition schedule that did not include Aviles, . . . Lee, or Panarella," which shows that the parties did not agree to depose these persons. The movants contend that the plaintiff cannot produce "any evidence whatsoever that defendants ever agreed to produce or voluntarily permit the depositions of Aviles, . . . Lee, or Panarella." They assert it was "improper for plaintiff to falsely represent to the Court that defendants misled plaintiff into believing she could depose" these persons.

The movants also contend that the Court should "reconsider its determination that defendants are precluded from arguing the November 2, 2011, order is law of the case because of the April 6, 2012, order," because the April 6, 2012 order "never stated nor held that plaintiff was permitted to depose Aviles, Lee, or Panarella"; it "simply permitted plaintiff 'to attempt to examine orally Alan Aviles, . . . Lisa Lee, and Louis Panarella' to allow the parties to litigate, once again, the deposition of Aviles, . . . Lee, and Panarella." According to the movants, "[b]eing permitted to attempt to orally examine witnesses is not the equivalent to an order permitting plaintiff to orally examine witnesses"; thus, they "should not be precluded from arguing law of the case, nor does it alter the prior determination, that plaintiff did not properly notice the depositions of Aviles, Lee, and Panarella while discovery was open."

The movants contend that "the Court should reconsider its decision reopening discovery 'to permit plaintiff to examine orally Aviles, Lee and Panarella,'" because discovery closed on July 15, 2012 and the "plaintiff never filed a motion to seek to reopen discovery." The movants maintain that "for plaintiff to properly reopen discovery after it had closed, plaintiff is required to do so by motion and demonstrate good cause for failing to act within the time provided," and the defendants should have an opportunity "to consider, evaluate, and oppose plaintiff's written arguments rather than be forced to respond and be bound to respond to oral arguments that are heard for the first time during a telephonic conference, which was not included in plaintiff's opposition to the motion to quash."

With respect to the second argument concerning attorneys' fees, the movants contend the "Court should reconsider its decision awarding plaintiff attorney's fees," because the "defendants did not engage in any conduct that warrants the award of attorney's fees." Moreover, the movants contend, "[a]lthough the majority of plaintiff's motion [to compel] was denied, the Court did not award defendants attorney's fees," so, similarly, the "plaintiff should not be awarded attorney's fees here."

Plaintiff's Contentions

The plaintiff contends she did not misrepresent any facts to the Court because she presented "evidence that the Plaintiff was not aware until June 9, 2011 that the witnesses[, Aviles, Lee and Panarella,] would not be produced," and, despite the movants' counsel's statement in his June 9, 2011 e-mail message to the plaintiff's counsel that he "mentioned this before," the movants "completely fail to present any e-mail, document or record which clearly and precisely state that Defendants informed the Plaintiff with full knowledge before June 9, 2011 that the witnesses would not be produced as previously agreed upon." Moreover, the plaintiff asserts, she did not wait until four days before the end of discovery to file her motion to compel, that "motion was filed based on the schedule set by the court."

The plaintiff maintains that the movants failed to mention "any controlling case law or any new evidence in their memorandum of law." According to the plaintiff, the movants received "notice that sanctions may be imposed since May 9, 2012," pursuant to 28 U.S.C. § 1927, because "[t]he Defendants have continued to re-litigate the same issue over and over again," and had an opportunity to respond. Furthermore, they failed "to put forward any reasonable or logical reasoning, as well as fail[ed] to put forward any relevant case law," in connection with their attorney's fees contentions.

Legal Standard

Local Civil Rule 6.3 of this court provides for a motion for reconsideration or reargument, requiring the movant to set forth, in a memorandum of law, "concisely the matters or controlling decisions which counsel believes the Court has overlooked. . . . No affidavits shall be filed by any party unless directed by the Court." Local Civil Rule 6.3.

The standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court. . . . Admittedly, a motion to reconsider should ...

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