Arons v. Lalime

167 F.R.D. 364, 36 Fed. R. Serv. 3d 608, 1996 U.S. Dist. LEXIS 8526, 1996 WL 341929
CourtDistrict Court, W.D. New York
DecidedJune 4, 1996
DocketNo. 94-CV-618A(H)
StatusPublished
Cited by2 cases

This text of 167 F.R.D. 364 (Arons v. Lalime) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arons v. Lalime, 167 F.R.D. 364, 36 Fed. R. Serv. 3d 608, 1996 U.S. Dist. LEXIS 8526, 1996 WL 341929 (W.D.N.Y. 1996).

Opinion

DECISION & ORDER

HECKMAN, United States Magistrate Judge.

This ease has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for all pretrial matters and to hear and report on dispositive motions. Counsel for defendant James L. Lalime, defendant Harold Wilner Dingman (as to Count 3 of the complaint), and former defendant NationsBank of Virginia, NA. (“NationsBank”), have submitted applications for the costs and expenses associated with their respective oppositions to the “omnibus” pretrial motions filed on behalf of plaintiffs by Lawrence B. Goldberg, Esq. What follows is the court’s rulings on these applications.

BACKGROUND

Plaintiffs filed this action on August 26, 1994. They allege that between April and October, 1993, defendants induced plaintiffs to invest their money in a fraudulent “scheme” involving the purchase and sale of bank notes and securities, in violation of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, and various common law theories. More specifically, plaintiffs allege that they transferred a total of $775,317.00 to Centerpointe Capital Corp. (“Centerpointe”), the alleged RICO “enterprise,” between April and June of 1993. These funds were deposited into an escrow account maintained at NationsBank in the name of defendant Dingman, Centerpointe’s attorney. Plaintiffs allege that instead of using the solicited funds to buy and sell discounted bank notes and securities as promised, defendants used the funds for their own personal gain. Plaintiffs claim that NationsBank, through its officer Colin H. Gillespie, participated in the scheme by allowing Dingman full access to the escrow funds, thereby enabling him to transfer the funds to other banks and credit institutions without plaintiffs’ knowledge or consent “and for purposes inconsistent with Dingman’s fiduciary responsibilities” (Item 1, ¶ 31(CC)).

On November 8, 1994, NationsBank moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss [366]*366the RICO and common law claims against it (Item 12). Subsequently, the plaintiffs and NationsBank stipulated to discontinue the action against NationsBank without prejudice in exchange for an agreement to produce certain documents and certain employees for deposition. This stipulation was signed by Hon. Richard J. Arcara and entered as an order on March 28, 1995 (Item 32). On May 3, 1995, Judge Arcara entered an additional stipulated order, which was signed by the attorneys for NationsBank, Lalime, Dingman, and defendant James F. McKernan, discontinuing without prejudice all crosselaims against NationsBank (Item 35).

Mr. Gillespie’s deposition took place on May 23, 1995, upon notice to all parties. During a telephone conference on September 18, 1995, plaintiffs’ counsel advised the court and the other parties that the deposition of an additional NationsBank employee would be necessary. Thereafter, on October 19, 1995, plaintiffs’ counsel took the deposition of NationsBank employee Edward Malloy without providing written notice of the deposition to any of the defendants, as required by Rule 30(b) of the Federal Rules of Civil Procedure.

On November 21, 1995, plaintiffs filed an “Omnibus” motion seeking the following relief: (1) to amend the complaint to reallege NationsBank’s participation in the RICO enterprise and scheme, and to assert a common law negligence claim against NationsBank; (2) to add additional defendants Richard Kaufhold (an employee or agent of Ding-man), and Joan Lalime, Leon Hurst and Bonnie Sluce (as officers or employees of Centerpointe); (3) to compel Lalime to produce additional documents; (4) to compel Dingman to provide more complete responses to discovery requests; (5) to compel David Bentivogli, Esq. to withdraw as Lalime’s attorney; and, (6) for entry of default judgments against defendants David R. Miller and Helga Schwartze-Berenguer (Item 42). On January 2, 1996, Dingman moved to preclude the use of Edward Malloy’s deposition (Item 45).

Numerous pleadings and memoranda of law were filed in connection with these motions, and oral argument was scheduled for February 5, 1996. On that date, defense counsel appeared, including out-of-town counsel for Dingman. However, Mr. Goldberg did not appear for the argument nor did he contact the court or any other counsel to request an adjournment. Instead, Michael K. Sawicki, Esq., appeared as local counsel on behalf of plaintiffs. Mr. Sawicki advised the court that he was not prepared to discuss the motion to amend the complaint and would instead rely on the papers. He further advised the court that he was withdrawing the motion to disqualify David Bentivogli, Esq. as Lalime’s attorney and that the parties were “in agreement” with respect to Dingman’s motion to preclude the use of the Malloy deposition (Item 65 at 5-8).

As to Mr. Goldberg’s failure to appear, the following colloquy took place:

THE COURT: Now, where is Mr.
Goldberg? He is not available today?
MR. SAWICKI: He called me last week to say that he had other business, other reasons why he could not be here. I told him I would look the papers over on the weekend and I would call him this morning. When I called this morning I was told he was traveling and could not be reached. So I can’t give you any more explanation than that, Judge.
THE COURT: And none of the other parties knew of this? Were any of you contacted and asked to reschedule this?
MR. HOWELL: No, your Honor.
MR. BENTIVOGLI: No, your Honor.
THE COURT: You’re from out of town?
MR. HOWELL: I’m from Washington, D.C., your Honor.
THE COURT: So you traveled up here today for this.
MR. HOWELL: For purposes of this hearing.

(Item 65, at 11-12).

At the hearing, defense counsel requested an award of costs and fees based on Mr. Goldberg’s failure to appear (Item 65 at 23). They also requested costs and fees based on their opposition to plaintiffs’ omnibus motion.

[367]*367On February 15,1996, this court issued an order (Item 60) denying plaintiffs’ motion to amend the complaint, denying plaintiffs’ motion to compel further discovery from Lalime, and denying plaintiffs’ motion to compel further discovery from Dingman. The court also directed further filings with respect to plaintiffs’ request for entry of default judgments, and set a schedule for briefing and argument on defendants’ applications for costs against Mr. Goldberg. Counsel for Lalime, Dingman and NationsBank submitted their applications for costs, and Mr. Goldberg submitted a response. A hearing was held on March 7, 1996 at which all counsel of record appeared, including Mr. Goldberg. For the reasons set forth below, defendants’ applications are granted in part and denied in part.

DISCUSSION

1. Dingman’s Application.

Defendant Dingman seeks sanctions against Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
167 F.R.D. 364, 36 Fed. R. Serv. 3d 608, 1996 U.S. Dist. LEXIS 8526, 1996 WL 341929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arons-v-lalime-nywd-1996.