United States District Court, S.D. New York
OPINION & ORDER
PAUL A. CROTTY, United States District Judge
Lisa Vioni and Hedge Connection, Inc. (together,
"Plaintiffs") bring this quantum meruit
action to seek compensation from Defendants Providence
Investment Management, LLC, Providence Investment Partners,
LLC, and Russell Jeffrey (together, "Defendants")
for Vioni's role in arranging a business opportunity
between Defendants and American Capital Strategies, Ltd. This
action was commenced on March 20, 2008, and trial is now
scheduled to start before a jury on March 13, 2017, almost
nine years later.
February 17, 2017 Plaintiffs and Defendants each submitted a
motion to the Court: Plaintiffs filed a motion to introduce
expert testimony in their case-in-chief, and Defendants
filed a motion in limine to exclude (1) testimony
from Plaintiffs' rebuttal experts, (2) argument,
testimony, and evidence regarding new theories of damages,
and (3) argument, testimony, and evidence regarding document
discovery. On February 23, 2017, Plaintiffs and Defendants
filed their oppositions. On February 24, 2017, the Court
issued an Order denying Plaintiffs' motion and denying in
part and granting in part Defendants' motion. The Court
now supplements its Order to provide its reasoning.
Court summarizes here only the facts and procedural history
relevant to the Court's decision on the parties'
pre-trial motions. On September 16, 2016, the Court denied
Plaintiffs' latest request to obtain further discovery
relating to damages, and directed the parties to propose
dates for trial by Friday, September 30, 2016. Dkt. 124. On
September 30, 2016, Defendants proposed that trial start
either February 13, 2017 or March 13, 2017, Dkt. 125, and
Plaintiffs proposed that trial start November 1, 2017, Dkt.
126. On October 6, 2016 the Court set the following schedule:
• December 15, 2016: Parties serve any expert reports
• January 30, 2017: Parties serve any rebuttal expert
• March 3, 2017: Deadline to complete any expert
• March 13-17, 2017: Trial
("Scheduling Order"). Dkt. 127.
December 14, 2016, over two months later-and just one day
before expert reports were due-Plaintiffs filed a petition
for a writ of mandamus with the Second Circuit seeking, among
other things, a stay of the Scheduling Order and for
discovery to be re-opened ("Mandamus Petition").
See Ex. 2 to the Declaration of Corey Stark in
Support of Ps' Mot. ("Stark Decl."). Plaintiffs
asserted repeatedly in the Mandamus Petition that, without
discovery, their experts would not be able to comply with the
Scheduling Order or prove damages at trial. See, e.g.,
Id. at 1, 7, 12-13.
December 15, 2016, Defendants timely served the Confidential
Expert Report of Jill Niemczyk (the "Niemczyk
Report") on Plaintiffs, see Stark Decl. Ex. 6,
but Plaintiffs did not serve any expert report on Defendants.
Plaintiffs' assert that their then-counsel, Michael Q.
Carey, was under the erroneous impression that the Scheduling
Order was stayed pending the Second Circuit's decision on
the Mandamus Petition. See Stark Decl. Ex. 3
(December 28, 2016 emails to Plaintiffs' experts stating
that "[t]he proceedings in the District Court are stayed
pending decision on the [mandamus] petition."); Ex. C to
the Declaration of Neal H. Klausner in Opp'n to Ps'
Mot. ("Klausner Opp'n Decl.") (January 20, 2017
email stating that "[e]ach date on the District
Court's [Scheduling] Order will have to be rescheduled
after the result of the [mandamus] petition.").
January 24, 2017, Defendants submitted a letter to the Court
proposing dates for a final pretrial conference and advising
the Court of Plaintiffs' position (and Defendants'
disagreement) that the Scheduling Order was stayed pending
resolution of the Mandamus Petition, Dkt. 129. Later on
January 24, 2017, Plaintiffs submitted a letter to the Court
requesting that the Court stay the Scheduling Order,
''nunc pro tunc, and all other proceedings
in this matter, until after the Second Circuit renders its
decision on Vioni's Petition for a Writ of
Mandamus." Dkt. 130. Plaintiffs asserted that not
granting a stay "would simply reward [Defendants] for
knowingly violating the rules of discovery, to Vioni's
prejudice, effectively blocking Vioni's expert discovery
and ability to proceed with trial." Id. On
January 26, 2017, Defendants submitted a letter opposing
Plaintiffs' stay request. Dkt. 131. The Court denied
Plaintiffs' request that same day and ordered the parties
to appear at a final pretrial conference scheduled for March
9, 2017. Dkt. 132.
January 28, 2017, Plaintiffs filed an emergency motion with
the Second Circuit "to stay, nunc pro tunc, the
[scheduling] order of the Court, dated October 6, 2016"
("Emergency Stay Motion"). Klausner Opp'n Decl.
Ex. D at 1. In it, Plaintiffs stated: "Vioni did not
produce expert reports on December 15, 2017 [sic] because her
experts have not had an opportunity to review the Damages
Documents [Defendants] withheld despite her production
requests." Id. at 9.
January 30, 2017, Plaintiffs served three expert rebuttal
reports: the Confidential Expert Rebuttal Report of Robert M.
Warren (the "Warren Report''), the Confidential
Expert Rebuttal Report of Michael J. Levas, and the
Confidential Expert Rebuttal Report of Michael V. Merrigan.
See Exs. B, C, D of the ...