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Vioni v. Providence Investment Management, LLC

United States District Court, S.D. New York

March 6, 2017

LISA VIONI and HEDGE CONNECTION, INC., Plaintiffs,
v.
PROVIDENCE EWESTMENT MANAGEMENT, LLC, PROVIDENCE INVESTMENT PARTNERS, LLC, and, RUSSELL JEFFREY, Defendants.

          OPINION & ORDER

          HON. PAUL A. CROTTY, United States District Judge

         Plaintiffs 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.

         On February 17, 2017 Plaintiffs and Defendants each submitted a motion to the Court: Plaintiffs filed a motion to introduce expert testimony[1] 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.

         BACKGROUND

         The Court summarizes here only the facts and procedural history relevant to the Court's decision on the parties' pre-trial motions.[2] 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 reports
• March 3, 2017: Deadline to complete any expert depositions
• March 13-17, 2017: Trial

("Scheduling Order"). Dkt. 127.

         On 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.

         On 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.").

         On 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.

         On 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.

         On 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 ...


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