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Edelstein v. 360 Sports Management, Inc.

United States District Court, S.D. New York

April 21, 2017

SCOTT EDELSTEIN, Plaintiff,
v.
360 SPORTS MANAGEMENT, INC., ROBERT LICOPOLI, and JOHN DOES #1-100, Defendants.

          OPINION & ORDER

          PAUL A. ENGELMAYER, District Judge

         On September 28, 2016, defendant Robert Licopoli, appearing pro se, filed a motion, under Federal Rule of Civil Procedure 60(b), to reopen this case and vacate the judgment that was entered against him on January 4, 2016. Dkt. 55. Judgment was entered against Licopoli after he breached a settlement agreement overseen by Magistrate Judge Andrew J. Peck by refusing to execute a confession of judgment and make a payment due thereunder. In his reply brief in support of his motion to vacate the judgment, Licopoli also requests "an exception" permitting him to represent his co-defendant 360 Sports Management, Inc. ("360 Sports") for purposes of his Rule 60(b) motion. Dkt. 61 at 2. For the reasons that follow, the Court denies Licopoli's request to represent 360 Sports and denies Licopoli's motion to reopen the case and vacate the judgment against him.

         I. Background

         On November 3, 2015, the parties in this action appeared for a settlement conference before Judge Peck. Licopoli appeared on his own behalf, and attorney Richard A. Luthmann appeared on behalf of 360 Sports, a company of which Licopoli is the majority owner. Dkt. 55 at 1, 7. At the beginning of that conference, Judge Peck discussed with the parties the potential for sanctions as a result of defendants' failure to respond to any of plaintiff s discovery demands by deadline imposed by this Court. Id. at 11-12. The parties then engaged in a private settlement discussion and, upon returning to the courtroom, placed a settlement agreement on the record. Id. at 14. Under the agreement, defendants were required to execute "a confession of judgment for $150, 000." Id. at 15-16. Judge Peck informed defendants that "[f]ailure to sign the confession of judgment and produce it constitutes a material breach of the settlement agreement, and if not cured within five business days, then judgment will be entered by this Court, confession or not, for $150, 000." Id. at 16. Both Luthmann, on behalf of 360 Sports, and Licopoli, on his own behalf, orally consented to the terms of the settlement. Id. at 17-18.

         Following the conference, defendants failed to execute a confession of judgment or make any required payment under the settlement agreement. Dkt. 60 at 4. Despite a second order from Judge Peck dated November 16, 2015, directing defendants to "execute confession of judgment and deliver same to plaintiffs counsel, with a copy to the Court, " Dkt. 60-2 at 2, and despite a third order from Judge Peck dated November 23, 2015, informing defendants they had "one last chance" to comply, Dkt. 60-4 at 2, defendants still did not execute and deliver the confession of judgment, Dkt. 60 at 4-5. Accordingly, on December 4, 2015, Judge Peck directed the Clerk of Court to enter judgment for plaintiff against defendants, jointly and severally, for $150, 000. Dkt. 60-6 at 2.

         On September 28, 2016, Licopoli filed this motion, under Rule 60, to reopen the case and vacate the judgment entered against him. On October 20, 2016, plaintiff Scott Edelstein filed a letter brief in opposition. Dkt. 60. On October 27, 2016, Licopoli filed a reply. Dkt. 61.

         II. Discussion

         A. Licopoli's Request to Represent 360 Sports

         As noted above, in his reply, Licopoli asks this Court to permit him to represent 360 Sports for purposes of this motion. Dkt. 61 at 2. This is not Licopoli's first such request. In an order dated May 29, 2015, the Court granted Licopoli's motion to represent himself in this case but denied his motion to represent his co-defendant. Dkt. 9. The Court did so because "a layperson may not represent a separate legal entity such as a corporation." Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007).

         In support of his request for an exception to this rule, Licopoli cites In the Matter of Holliday's Tax Servs., Inc., 417 F.Supp. 182 (E.D.N.Y. 1976), aff'd without opinion sub nom. Holliday's Tax Servs., Inc. v. Hauptman, 614 F.2d 1287 (2d Cir. 1979)), a factually distinguishable case in which a sole shareholder was permitted to represent his corporation in petitioning for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. In the more than 40 years since that holding, "the Second Circuit has not embraced Holliday" and there now exists "overwhelming caselaw that is contrary to the holding in Holliday T N.Y.State Teamsters Conference Pension & Ret. Fund v. Comae Builders Supply Corp., No. 6 Civ. 208 (FJS) (GHL), 2008 WL 150515, at *3-4 (N.D.N.Y. Jan. 14, 2008) (citing cases).

         The Court therefore denies Licopoli's request to represent 360 Sports for the same reasons set forth in the Court's May 29, 2015, order. Accordingly, to the extent that Licopoli's present motion seeks any relief on behalf of 360 Sports, the motion must be denied.

         B. Licopoli's Motion to Reopen the Case and Vacate the Judgment

         Licopoli has moved to reopen the case and vacate the judgment against him under Rule 60(b), which provides as follows:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or ...

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