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Ceglia v. Zuckerberg

United States District Court, Second Circuit

May 9, 2013

PAUL D. CEGLIA, Plaintiff,
v.
MARK ELLIOT ZUCKERBERG, and FACEBOOK, INC., Defendants. and

BOLAND LEGAL, LLC, DEAN M. BOLAND, Counsel, Lakewood, Ohio, Attorneys for Plaintiff.

PAUL A. ARGENTIERI, ESQ., Attorney for Plaintiff, Hornell, New York.

GIBSON, DUNN & CRUTCHER, LLP, ORIN S. SNYDER and, ALEXANDER H. SOUTHWELL, of Counsel, New York, New York, and THOMAS H. DUPREE, JR., of Counsel, Washington, District of Columbia, Attorneys for Defendants.

ORRICK, HERRINGTON & SUTCLIFFE LLP, LISA T. SIMPSON, of Counsel, New York, New York, Attorneys for Defendants.

HARRIS BEACH LLP, TERRANCE P. FLYNN, of Counsel Larkin at Exchange, Buffalo, New York, Attorneys for Defendants.

DECISION and ORDER

LESLIE G. FOSCHIO, Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on May 27, 2011 for pretrial matters. The action is presently before the court on Defendants' Fee Application filed November 19, 2012 (Doc. No. 600) for attorney's fees and costs awarded pursuant to this court's Decision and Order filed November 7, 2012 (Doc. No. 584).

BACKGROUND and FACTS[1]

The parties to this action dispute the authenticity of a contract ("the contract")[2] allegedly executed between Plaintiff Paul D. Ceglia ("Plaintiff") and Defendant Mark Elliot Zuckerberg ("Zuckerberg"), on April 28, 2003, pursuant to which Plaintiff and Zuckerberg, then a student at Harvard University ("Harvard"), established an agreement for the development and commercialization of two separate Internet business ventures, including an on-line database developed by Plaintiff, and the social-networking website created and maintained by Zuckerberg, and now known as Defendant Facebook, Inc. ("Facebook"). In anticipation of Defendants' challenging the alleged contract's authenticity, the parties cross-moved for expedited discovery limited to determining whether the alleged contract was genuine. In a Decision and Order filed July 1, 2011 (Doc. No. 83), the undersigned granted limited expedited discovery. The parties then engaged in numerous discovery disputes requiring judicial intervention. On March 26, 2012, Defendants moved to dismiss the action because the alleged contract on which Plaintiff relies in support of his claims against Defendants is a recently-created fabrication (Doc. No. 318) ("Defendants' Motion to Dismiss").[3]

On September 5, 2012, Defendants filed Defendants' Eighth Motion to Compel (Doc. No. 511) ("Eighth Motion to Compel"), seeking three documents referenced in another document Defendants have pursued through document production requests since February 2012, referred to as the "April 13 Kasowitz Letter, " and to overrule as improper Plaintiff's designation of the April 13 Kasowitz Letter as confidential. In the April 13 Kasowitz Letter, an attorney from the New York law firm of Kasowitz, Benson, Torres & Friedman LLP ("Kasowitz"), advised attorneys from DLA Piper LLP ("DLA Piper") and Lippes Mathias Wexler Friedman LLP ("Lippes Mathias"), two law firms that formerly represented Plaintiff in this action, that Kasowitz was withdrawing from Plaintiff's case[4] based on a determination that the purported contract at issue is a fraud. Defendants did not learn until the April 13 Kasowitz Letter was finally produced to Defendants, and after additional motion practice by Plaintiff seeking to avoid such production, of the existence of the three additional communications, which were the subject of Defendants' Eighth Motion to Compel.

In a Decision and Order filed November 7, 2012 (Doc. No. 584) ("D&O"), the undersigned granted in part and denied in part Defendants' Eighth Motion to Compel, ordering Plaintiff to produce one of the three documents sought, referred to as the March 30 Capsicum Communication, D&O at 11-15, holding Plaintiff had improperly designated the April 13 Kasowitz Letter as confidential and ordering such designation removed, D&O at 15-16, and directing Plaintiff to pay only those attorney's fees incurred in connection with that portion of Defendants' Eighth Motion to Compel requesting production of the March 30 Capsicum Communication. D&O at 20-21. Defendants were also directed to file within ten days an affidavit of attorney's fees incurred. D&O at 22.

As directed in the D&O, Defendants filed on November 19, 2012, Defendants' Fee Application in Connection With Their Eighth Motion to Compel (Doc. No. 599) ("Fee Application"), and the supporting Declaration of Alexander H. Southwell, Esq. (Doc. No. 600) ("Southwell Declaration"), with attached exhibit A (Doc. No. 600-1) ("Defendants' Exh. A"). On November 29, 2012, Plaintiff filed in opposition a Memorandum (Doc. No. 616) ("Plaintiff's Response"). Oral argument was deemed unnecessary.

Based on the following, Defendants' Fee Application is GRANTED; Defendants are awarded in connection with their Eighth Motion to Compel $3, 747.68 in attorney's fees, and are also entitled to an award of costs, including ...


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