Interestingly, and not surprisingly, the response starts with attacking the Court and then jumps into the argument made at the hearing. The first paragraph of the order to which this is a response begins with the fact that "[N]o law has been cited for the filing of "objections" to a hearing...." and "[T]o the extent the Court construes same as motions (sic) again they violate Local Rule 7.1(a)(1)". This is totally ignored in the response. Apparently things like following the law and the local rules take a significant backseat to ranting and raving and attacking the Court. Nonetheless it is those very rules and laws that govern our practice and procedure.
The ranting includes using a statement made by the Court after the plaintiffs filed their objections to the hearing (in D.E. 1094) as justification for the filings they made before any such statement was made!
This matter is before this Court on Plaintiffs' Motion for Extension of Time ... (D.E. 1177).
The Court has considered the motion and all pertinent materials in the file.
The reasons for this motion, in the short run, are certainly reasonable. The question that arises is why, in so many situations, are plaintiffs needing these extensions. What has happened from the beginning of a situation (as opposed to just the last few days before deadlines) that requires said filing(s)?
The Court being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED that said motion be and the same is hereby GRANTED. The reply shall be filed on or before Tuesday, December 7, 2010. No further extensions will be considered. However, any future motions for extension of time shall include a history from the beginning of the event that resulted in the need for an extension of time.
I agree!
In fact, why stop at the "beginning of the event"?
(There may be a need to be flexible with page limitations)
You know how when a big piece of litigation ends there is a feeling of loss, sometimes even a little remorse?
That's how I'm going to feel when this case ends, which apparently will be exactly March 18, 2011:
The Court finds that it must manage its calendar, and this case in particular as it has gotten totally and completely out of control. To allow it to go unfettered will allow what this Court stated early on - "it's all about the journey, not the destination."
"Allow it to go unfettered"?
As in "if the disease is allowed to go unfettered the parasite will spread rapidly through the body, leading to paralysis, coma, and ultimately a slow, painful death."
(He probably meant "unfettered" in some other sense.)
Ok, an intriguing metaphor -- you got me interested.
The Court has no choice but to conclude that this is the latest in a lengthy string of actions by plaintiff IYC which, among other things, "multiplies the proceedings ... unreasonably and vexatiously" (see 28 U.S.C. $1927). This Court has cajoled, warned, and pleaded with plaintiff to act professionally, ethically, and appropriately, but it seems that even significant sanctions and a finding of civil contempt2 have not deferred it from proceeding down a path of obfuscation, delay, and improper and inappropriate activity.
Plaintiff "waives the flag" and argues the "catastrophic" effect on the right of Plaintiffs to a fair trial, but apparently it wasn't "catastrophic" enough in November, 2009 to require all this discovery back then. This is, purely and simply, just another of plaintiffs smokescreens ...heightened, if that were possible, by seeking sanctions against INA for their alleged (and totally unspecified) misconduct (see Resp. p. 19) ... unless opposing depositions that have already been taken in another case and could easily be used herein constitutes bad faith ... or opposing last minute depositions on a matter totally irrelevant to the issues in this case - and without even seeking leave of court to go there - constitutes bad faith ... or unless opposing depositions set after a matter is fully briefed constitutes bad faith.
Could it get any better?
YES IT COULD:
The Court finds that this is "the last straw". PLAINTIFF IYC IS PLACED ON NOTICE THAT THE COURT MUST CONCLUDE, IF FURTHER TRANSGRESSIONS OCCUR, THAT MONETARY SANCTIONS DO NOT SUFFICE, AND THAT DISMISSAL WILL BE THE ONLY REMEDY LEFT.
Last straw....beat goes on....ellipses......ALL CAPS....oh boy.......
Well I have no idea what the underlying issue is, since Magistrate Judge Brown sealed the relevant pleadings, but this Order doesn't seem too good:
This matter came before this Court on Plaintiffs' Ex Parte Emergency Motion for Protective Order (D.E. 386), filed November 6, 2009. The motion sets forth serious allegations and accusations, and seeks significant relief. This motion resulted in numerous other filings and at least one emergency hearing. Responses were filed along with hundreds of pages of exhibits, including declarations and depositions transcripts. No reply was ever filed.
The motion, made without any evidence nor supporting documentation, sought an evidentiary hearing, and a delay in discovery. While the motion suggests that documentation could be provided if ordered in camera, in the face of substantial evidence contradicting said motion, none was ever provided.
The response of INA is most telling. It not only attaches the exhibits noted, supra, but alleges that plaintiffs had at least some if not all of this information before filing the motion ... allegations never rebutted in a reply. It further seeks sanctions under FRCP 11, and plaintiffs never respond to same.
The motion has largely become moot at this time, but to the extent it was not completely ruled upon, and the Court being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. The relief sought in said motion, with the exception of the sealing of same, is DENIED.
2. Plaintiffs shall have through and including Friday, April 30,2010 to show good cause, in writing, why substantial sanctions should not be imposed under FRCP 11 for the filing of this motion, and further why the Court should not, sua sponte, award said sanctions under either the inherent power of the court or 18 U.S.C 9 1927 for vexatiously and unreasonably multiplying the proceedings herein. Said filing shall be limited to a maximum of eight (8) pages.
I don't know, given the history here, what do you think might happen?
In this one Judge Brown attempts to explain to Mr. Halmos how witnesses (and their lawyers) are supposed to act at a deposition.
It starts pretty strong:
This matter is before this Court on plaintiffs' Objection to Judge Klein's Ruling of March 10,2010 (D.E. 586). The Court has considered the objection, the responses thereto, the reply, and all pertinent materials in the file. As usual, both sides have contributed to the problem.
But then Judge Brown gets rolling:
Mr. Halmos should understand that the scope of allowable discovery is rather broad. It is not the same as admissible evidence. There are a limited number of allowable reasons for refusing to answer questions propounded (and "I don't want to answer that question" is not one of them). For example, while the Court recognizes that he might not want to answer certain questions regarding litigation between he and his family, and would completely understand his desire not to go there, that is not a basis for not answering. Comments by other plaintiffs' lawyers ("So now we're going to have an additional 20 minutes of questions about litigation in his family?") are improper and do nothing to improve the situation. The reality is, the fact that questions may seem irrelevant to the issues in the case is not a basis to refuse to answer .... even though the information to be furnished may be unpleasant, and even though the information derived may later be deemed to be inadmissible in the trial.
Judge Brown is absolutely right about the sarcastic blather and potshots often thrown out by counsel for witnesses at a deposition, which serve no purpose other than to potentially derail the proceedings and allow the lawyer to feel self-important and in control of a situation he or she has no business attempting to control.
(That's not to say deposing lawyers can't take undue advantage of a witness and bully or ask about extraneous or improper matters.)
The motion and response are both fun reads too, btw -- including allegations of walking out of the deposition(!) upon receipt of the unfavorable ruling by Special Master Klein.
To be honest with you, there is a treasure trove of wonderful pleadings in this case.
If you can spare the 40 cents, I urge you to read the response to an order to show cause on whether the entire case should be dismissed as a sanction for missing an expert report deadline, which includes this wonderful paragraph:
But, these plaintiffs are suing their insurance agents and their carriers for monies owed to them. It is not outside the realm of credulity to suggest that insurance carriers take to heart Ernest and Julio Gallo's famed line: "No wine before its time."
The Court is having trouble ruling on plaintiffs' motion only because the Court is, quite frankly, stupefied! In all its years as a practicing attorney and a judge, this Court has never seen the actions displayed in this case by plaintiffs and the unimaginable audacity with which they proceed.
