United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, District Judge
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.
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.
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.
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.
Licopoli's Request to Represent 360 Sports
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).
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)
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.
Licopoli's Motion to Reopen the Case and Vacate the
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