Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA607782
`ESTTA Tracking number:
`06/03/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91206495
`Plaintiff
`SignalShare, LLC
`ERIC STEVENS
`POYNER SPRUILL LLP
`301 FAYETTEVILLE ST STE 1900
`RALEIGH, NC 27601
`UNITED STATES
`estevens@poynerspruill.com, johale@poynerspruill.com
`Motion to Reopen
`Eric P. Stevens
`estevens@poynerspruill.com, johale@poynerspruill.com, jk-
`ing@poynerspruill.com
`/Eric P. Stevens/
`06/03/2014
`SignalShare - Motion to Resume Proceedings and to Issue New Scheduling Or-
`der.pdf(1425991 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`SignalShare, LLC,
`
` vs.
`
`Amy Gurvey,
`
`Opposer,
`
`Opposition No. 91206495
`
`MOTION TO RESUME PROCEEDINGS
`AND TO ISSUE NEW
`SCHEDULING ORDER
`
`Respondent.
`
`NOW COMES SignalShare, LLC (“Opposer” or “SignalShare”), by and through
`
`undersigned counsel, and moves the Board to resume proceedings in the above-captioned matter
`
`and to issue a new scheduling order. In support of this Motion, SignalShare shows the Board as
`
`follows:
`
`STATEMENT OF FACTS
`
`1.
`
`SignalShare commenced the above-captioned opposition proceeding on August 9,
`
`2012, alleging that Respondent’s intent-to-use trademark application for the mark LIVE-FI
`
`would give rise to a likelihood of confusion with SignalShare’s prior registration of the same
`
`mark.
`
`2.
`
`On October 18, 2012, Respondent Amy Gurvey (“Gurvey”), by and through her
`
`then-counsel, filed an Answer.
`
`3.
`
`On August 27, 2013, Gurvey’s then-counsel (Ohlandt, Greeley, Ruggiero & Perle,
`
`LLP and the individual attorneys of the firm Charles N.J. Ruggiero, Terrence J. McAllister, and
`
`Jeffrey J. Scepanski) filed a Request to Withdraw as Counsel.
`
`

`
`4.
`
`On September 18, 2013, the Board allowed the withdrawal of counsel and
`
`suspended the above-captioned proceeding in order to allow Gurvey thirty (30) days to engage
`
`substitute counsel.
`
`5.
`
`On October 18, 2013, Gurvey filed a motion to extend the deadline to engage
`
`substitute counsel until November 18, 2013. SignalShare did not consent to Gurvey’s motion.
`
`6.
`
`On January 2, 2014, the Board entered an Order deeming Gurvey’s motion to
`
`have been allowed, but further noting that no counsel had appeared on behalf of Gurvey. The
`
`Board provided that Gurvey had twenty (20) days to inform the Board of Gurvey’s intent to find
`
`replacement counsel.
`
`7.
`
`Gurvey did not respond until February 14, 2014. Gurvey advised that she was
`
`pursuing litigation in the Southern District of New York against her former counsel, Mr.
`
`Ruggiero, and Gurvey requested an additional sixty (60) days to give notice to the Board
`
`concerning substitute counsel.
`
`8.
`
`The Board has not ruled upon Gurvey’s February 14, 2014 request for additional
`
`time to engage counsel. If Gurvey’s request were deemed to have been granted, Gurvey’s
`
`extended deadline to inform the Board as to the status of this matter would have been April 15,
`
`2014. To date, Gurvey has made no further filings with the Board, nor has Gurvey contacted
`
`undersigned counsel concerning any extensions of time.
`
`ARGUMENT
`
`9.
`
`For several reasons, the Board should resume proceedings in this case. First,
`
`Gurvey has had since at least September 18, 2013—nearly nine months—to find substitute
`
`counsel in this case. That is ample time to engage substitute counsel.
`
`2
`
`

`
`10.
`
`Second, Gurvey is well in default of her most-recently-requested deadline to
`
`inform the Board as to the status of this case (which, hypothetically, would have been April 15,
`
`2014). The Board has never actually granted Gurvey’s most-recent request to extend time;
`
`moreover, even when Gurvey made that request, she was already in default of the Board’s
`
`previous deadline. But even if the Board had granted Gurvey’s request, her deadline passed
`
`more than six (6) weeks ago.
`
`11.
`
`Third, Gurvey has made no showing that the litigation in the Southern District of
`
`New York relates to this trademark opposition proceeding (other than an unsupported allegation
`
`that SignalShare is somehow infringing upon some unspecified patent right). SignalShare denies
`
`such allegations. However, for purposes of this Motion, SignalShare observes that allegations of
`
`patent infringement would have no particular relevance to the issues in this trademark opposition
`
`proceeding.
`
`12.
`
`Fourth, from what SignalShare’s counsel has been able to glean from the docket
`
`of the S.D.N.Y. litigation, it appears that the Southern District of New York may in fact have
`
`ruled upon the discovery requests and/or subpoena(s) referenced in Ms. Gurvey’s February 14,
`
`2014 correspondence. On February 24, 2014, the Court entered an order that appears to have
`
`denied multiple requests made by Ms. Gurvey to conduct discovery (copy of Order attached as
`
`Exhibit 1). In a Declaration submitted by Gurvey just four days later, on February 28, 2014,
`
`Gurvey characterized the Court’s February 24, 2014 Order as follows:
`
`District Court [sic] also failed to order subpoenas against Plaintiffs
`patent attorneys post Cowan who were retained to mitigate
`damages; which is information requested by defendants in
`discovery. Also in a recent February 24,2014 order District Court
`said it has not received Plaintiffs explanation of how her discovery
`requests pertain to the claims upheld by the Second Circuit.
`
`3
`
`

`
`(February 28, 2014 Gurvey Declaration ¶ 44) (copy attached as Exhibit 2, without additional
`
`exhibits thereto). SignalShare’s counsel has no knowledge concerning the litigation in which
`
`Gurvey is engaged (other than what is publicly available on PACER),1 but it appears to
`
`undersigned counsel that the Southern District of New York may have disposed of whatever
`
`discovery issues Gurvey was attempting to litigate before that Court. At any rate, the burden
`
`should be upon Gurvey to explain that litigation to the Board.
`
`13.
`
`For the foregoing reasons, the Board should resume proceedings in the above-
`
`captioned matter and set new deadlines for discovery and trial. Additionally, the Board should
`
`issue a new Scheduling Order, in light of this nine-month suspension.
`
`WHEREFORE, SignalShare prays that the Board resume proceedings in the above-
`
`captioned matter and issue a new Scheduling Order with new deadlines for further proceedings.
`
`Respectfully submitted, this the 3rd day of June, 2014.
`
`POYNER SPRUILL LLP
`
`/s/ Eric P. Stevens
`Eric P. Stevens
`P.O. Box 1801 (27062-1801)
`301 Fayetteville St., Suite 1900
`Raleigh, NC 27601
`Telephone: (919) 783-6400
`Facsimile: (919) 783-1075
`
`ATTORNEYS FOR OPPOSER
`
`1 It appears that Gurvey’s litigation in the Southern District of New York may relate, at least in part, to an
`alleged misappropriation of confidential information by Gurvey’s former counsel in order to register
`patents on behalf of a third party. See generally Exhibit 2. In her February 14, 2014 correspondence to
`the Board, Gurvey stated that SignalShare is allegedly infringing upon those alleged patent rights (which
`Gurvey appears to claim should have been registered in her name). At any rate, those allegations are
`irrelevant to this trademark opposition proceeding, and they are especially irrelevant to the issue of
`whether this proceeding should continue to be suspended on the ground that Gurvey is supposedly
`continuing to search for substitute counsel.
`
`4
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that I have this day served a copy of the foregoing MOTION TO
`RESUME PROCEEDINGS AND TO ISSUE NEW SCHEDULING ORDER by depositing a
`copy thereof with the United States Postal Service for delivery via first-class mail, with sufficient
`postage prepaid, in an envelope addressed to the following person at the following address,
`which is the last address known to me:
`
`Amy Gurvey
`315 Higland Ave
`Montclair, NJ 07043
`
`And via e-mail to amygurvey@verizon.net and amyweissbrod@verizon.net
`
`This the 3rd day of June, 2014.
`
`By:
`
`/s/ Eric P. Stevens
`Eric P. Stevens
`
`5
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 1 of 22
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-----------------------------------X
`
`AMY R. GURVEY,
`
`-against-
`
`Plaintiff,
`
`COWAN, LIEBOWITZ & LATHMAN, P.C.,
`et al.,
`
`Defendants.
`
`:
`
`:
`
`:
`
`:
`
`:
`
`-----------------------------------X
`
`06 Civ. 1202 (LGS)(HBP)
`
`OPINION
`AND ORDER
`
`PITMAN, United States Magistrate Judge:
`
`I. Introduction
`
`I write to resolve two outstanding motions related to
`
`my July 15, 2013 Opinion and Order, Gurvey v. Cowan, Liebowitz &
`
`Lathman, P.C., 06 Civ. 1202 (LGS)(HBP), 2013 WL 3718071 (S.D.N.Y.
`
`July 15, 2013) (Pitman, M.J.) ("July Order"). By notice of
`
`motion dated July 30, 2013, plaintiff moves for reconsideration
`
`of both my July Order and an Order issued by the Honorable
`
`Barbara Jones, United States District Judge, now retired, on
`
`April 5, 2012 (Notice of Motion for Reconsideration, dated July
`
`30, 2013, (Docket Item 182) ("Pl. Notice of Mot.") at 2). By
`
`notice of motion, dated March 27, 2013, defendants move for an
`
`Order pursuant to Rule 37 of the Federal Rules of Civil Procedure
`
`(1) precluding plaintiff from offering at trial or in connection
`
`SignalShare's Exhibit 1
`Page 1 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 2 of 22
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`with any motion any evidence that she has not already produced,
`
`(2) striking the Third Amended Complaint, or in the alternative,
`
`precluding plaintiff from serving additional discovery requests
`
`and (3) awarding defendants the costs and attorney's fees they
`
`incurred in filing the instant motion (Memorandum of Law in
`
`Support of Defendants' Motion to Sanction Plaintiff, dated Mar.
`
`27, 2013, (Docket Item 147) ("Defs.' Mem.") at 9-10). For the
`
`reasons set forth below, plaintiff's motion for reconsideration
`
`is denied. Defendants' motion for sanctions is granted to the
`
`extent that it seeks the attorney's fees and costs defendants
`
`incurred in making the motion and forfeiture of plaintiff's right
`
`to seek enforcement of her discovery requests that were the
`
`subject of my Order dated January 14, 2013. It is denied to the
`
`extent it seeks other relief.
`
`II. Facts
`
`The facts underlying this action and the instant
`
`applications have been set forth in my July Order, familiarity
`
`with which is assumed. Gurvey v. Cowan, Liebowitz & Lathman,
`
`P.C., supra, 2013 WL 3718071 at *1-*6. For the present purposes
`
`it is sufficient to note that plaintiff, proceeding pro se, is a
`
`former employee of the law firm Cowan, Liebowitz & Lathman, P.C.
`
`("CLL"). Plaintiff's only remaining claims allege attorney
`
`2
`
`SignalShare's Exhibit 1
`Page 2 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 3 of 22
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`malpractice and breach of fiduciary duty in connection with a
`
`patent application that CLL was allegedly prosecuting on her
`
`behalf.
`
`In my July Order, I resolved several motions. Relevant
`
`to the pending applications, I denied plaintiff's motion for
`
`leave to file a Fifth Amended Complaint and reserved decision on
`
`defendants' motion for sanctions.
`
`With respect to plaintiff's motion for leave to serve a
`
`Fifth Amended Complaint, I concluded that plaintiff's motion
`
`should be denied because the proposed amendment was futile. I
`
`also denied plaintiff's motion on grounds of bad faith, undue
`
`delay and prejudice to defendants. Gurvey v. Cowan, Liebowitz &
`
`Lathman, P.C., supra, 2013 WL 3718071 at *10-*11.
`
`With respect to defendants' motion for sanctions, I
`
`concluded that defendants had made a prima facie showing that
`
`plaintiff had engaged in conduct that was sanctionable pursuant
`
`to Fed.R.Civ.P. 37(c)(1) and (b)(2).
`
`First, plaintiff's disclosures made pursuant to Rule
`26(a)(1) are deficient in numerous respects. Rather
`than adhering to the requirements of Rule 26(a)(1),
`plaintiff's "disclosures" consist of lengthy arguments
`about the merits of her case interspersed with broad
`document demands (see generally Docket Item 125).
`Instead of identifying the documents within her posses-
`sion, custody, or control on which she will rely,
`plaintiff provides a list of 53 "documents or catego-
`ries of documents in hard and electronic format [that]
`may be used by Plaintiff in support of her claims or
`
`3
`
`SignalShare's Exhibit 1
`Page 3 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 4 of 22
`
`defenses and are requested in discovery," many of which
`have tenuous or no relevance to the claims in this
`litigation (Docket Item 125 at 20-24). With respect to
`the identification of witnesses, plaintiff identifies
`more than thirty individuals and entities, a number of
`whom have no logical connection to plaintiff's claims,
`including "Solicitor General, European Patent Office,"
`and "Major League Baseball/MLB Advanced Media" (Docket
`Item 125 at 17-19). Finally, under the heading "Damage
`Calculations," plaintiff submitted only the following:
`"Plaintiff’s damages are to be calculated public docu-
`ments [sic] and if that is not sufficient, by experts"
`(Docket Item 125 at 24). These disclosures are plainly
`defective, and it appears that plaintiff has made no
`attempt to supplement or amend them, despite being
`informed of their deficiencies by defendants (see Ex. H
`to Declaration of J. Richard Supple, Jr. in Support of
`Motion for Discovery Sanctions, filed Mar. 27, 2013
`("Supple Decl.")(Docket Item 146)).
`
`Plaintiff has also ignored my Orders of October
`10, 2012 and January 14, 2013, and in doing so, vio-
`lated Fed.R.Civ.P. 37(b)(2). My October 10, 2012 Order
`explicitly limited discovery to plaintiff's malpractice
`and breach-of-fiduciary duty claims. However, as
`evidenced by, among other things, the document demands
`contained within plaintiff's defective Rule 26(a)(1)
`disclosures and plaintiff's first set of document
`demands and interrogatories (Ex. I to Supple Decl.),
`plaintiff has sought discovery of extraordinary breadth
`that is far beyond the scope of the two claims remanded
`by the Court of Appeals. In addition, to this day,
`plaintiff has disregarded my Order of January 14, 2013
`by failing to explain in writing how each of her dis-
`covery requests to CLL is relevant to the remaining
`claims. Plaintiff has offered no explanation for her
`cavalier attitude with respect to compliance with these
`Orders.
`
`Gurvey v. Cowan, Liebowitz & Lathman, P.C., supra, 2013 WL
`
`3718071 at *14. However, because plaintiff had not responded to
`
`defendants' motion for sanctions, I gave plaintiff an "opportu-
`
`4
`
`SignalShare's Exhibit 1
`Page 4 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 5 of 22
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`nity to attempt to explain her conduct and/or provide mitigating
`
`evidence on her behalf." Gurvey v. Cowan, Liebowitz & Lathman,
`
`P.C., supra, 2013 WL 3718071 at *15.
`
`On July 30, 2013, plaintiff moved for reconsideration
`
`of my July Order to the extent that it denied her motion for
`
`leave to serve a Fifth Amended Complaint and "that portion of the
`
`District Court's order directing that [CLL] answer Plaintiff's
`
`[Third Amended Complaint]" (Pl. Notice of Mot. at 2). In support
`
`of her motion, plaintiff submitted a document entitled "Plain-
`
`tiff's Declaration and Legal Memorandum in Support of Motion for
`
`Reconsideration," to which she appended the appellate brief she
`
`submitted to the Ninth Circuit Court of Appeals in a related case
`
`(Docket Item 183). On August 5th, plaintiff submitted a document
`
`entitled "Plaintiff's Declaration and Legal Memorandum in Further
`
`Support of Reconsideration and Excusable Delay in Discovery,"
`
`which appears to be plaintiff's response to my Order directing
`
`her to show cause why I should not impose sanctions ((Docket Item
`
`184) ("Pl. Aug. 5 Mem."). On August 21, 2013, defendants submit-
`
`ted their response (Declaration of Richard Supple, Jr. in Re-
`
`sponse to Plaintiff Amy R. Gurvey's Notice of Motion for Recon-
`
`sideration and "Excusable Delay in Discovery," dated Aug. 21,
`
`2013, (Docket Item 187)).
`
`5
`
`SignalShare's Exhibit 1
`Page 5 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 6 of 22
`
`The parties have submitted additional correspondence
`
`related to the pending motions. On January 3, 2014, plaintiff
`
`submitted what is ostensibly a reply in further support of her
`
`motion for reconsideration my July Order ("Plaintiff Pro Se's
`
`Reply to Motion-in-Chief for Reconsideration and to Vacate
`
`Magistrate's July, 2013 Order (Docket Item 176)," dated Jan. 3,
`
`2014, (Docket Item 197)("Pl. Reply")). On January 13, 2014,
`
`defendants submitted a letter requesting that I disregard plain-
`
`tiff's Reply and that plaintiff be enjoined from making new
`
`motions without the Court's permission (Letter of Richard Supple,
`
`Jr., Esq., to the undersigned, dated Jan. 13, 2014, at 2).
`
`III. Analysis
`
`A. Motion for
` Reconsideration
`
`Motions for reconsideration are appropriate only under
`
`limited circumstances. As explained by the late Honorable Peter
`
`K. Leisure, United States District Judge, in Davidson v. Scully,
`
`172 F. Supp. 2d 458, 461-62 (S.D.N.Y. 2001):
`
`A motion for reconsideration may not be used to
`advance new facts, issues or arguments not previously
`presented to the Court, nor may it be used as a vehicle
`for relitigating issues already decided by the Court.
`See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
`Cir. 1995). A party seeking reconsideration "is not
`supposed to treat the court's initial decision as the
`
`6
`
`SignalShare's Exhibit 1
`Page 6 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 7 of 22
`
`opening of a dialogue in which that party may then use
`such a motion to advance new theories or adduce new
`evidence in response to the court's rulings." Polsby
`v. St. Martin's Press, Inc., No. 97 Civ. 690, 2000 WL
`98057, at *1 (S.D.N.Y. Jan 18, 2000) (Mukasey, J.).
`Thus, a motion for reconsideration "is not a substitute
`for appeal and 'may be granted only where the Court has
`overlooked matters or controlling decisions which might
`have materially influenced the earlier decision.'"
`Morales v. Quintiles Transnational Corp., 25 F. Supp.
`2d 369, 372 (S.D.N.Y. 1998) (citations omitted).
`
`See also Mahmud v. Kaufmann, 496 F. Supp. 2d 266, 269-70 (S.D.N.-
`
`Y. 2007) (Conner, D.J.). "A movant for reconsideration bears the
`
`heavy burden of demonstrating that there has been an intervening
`
`change of controlling law, that new evidence has become avail-
`
`able, or that there is a need to correct a clear error or prevent
`
`manifest injustice." Quinn v. Altria Grp., Inc., 07 Civ. 8783
`
`(LTS)(RLE), 2008 WL 3518462 at *1 (S.D.N.Y. Aug. 1, 2008) (Swain,
`
`D.J.), citing Virgin Airways v. Nat'l Mediation Bd., 956 F.2d
`
`1245, 1255 (2d Cir. 1992).
`
`A moving party is entitled to reargument under Local
`
`Rule 6.3 where she "can point to controlling decisions or data
`
`that the court overlooked -- matters, in other words, that might
`
`reasonably be expected to alter the conclusion reached by the
`
`court." In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003),
`
`abrogated on other grounds, In re Zarnel, 619 F.3d 156, 167 (2d
`
`Cir. 2010); Allied Mar., Inc. v. Rice Corp., 361 F. Supp. 2d 148,
`
`149 (S.D.N.Y. 2004) (Scheindlin, D.J.).
`
`7
`
`SignalShare's Exhibit 1
`Page 7 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 8 of 22
`
`Thus, a party in its motion for reargument may not
`
`advance "new facts, issues or arguments not previously presented
`
`to the Court." Torres v. Carry, 672 F. Supp. 2d 346, 349
`
`(S.D.N.Y. 2009) (Marrero, D.J.), quoting Davidson v. Scully,
`
`supra, 172 F. Supp. 2d at 461. "These limitations serve to
`
`ensure finality and to prevent losing parties from using motions
`
`for reconsideration as a vehicle by which they may then plug the
`
`gaps of a lost motion with additional matters." In re City of
`
`New York, as Owner & Operator of M/V Andrew J. Barberi, CV-03-60-
`
`49 (ERK)(VVP), 2008 WL 1734236 at *1 (E.D.N.Y. Apr. 10, 2008),
`
`citing Zoll v. Jordache Enter. Inc., 01 Civ. 1339 (CSH), 2003 WL
`
`1964054 at *2 (S.D.N.Y. Apr. 24, 2003) (Haight, D.J.); Cohn v.
`
`Metro. Life Ins., Co., 07 Civ. 0928 (HB), 2007 WL 2710393 at *1
`
`(S.D.N.Y. Sept. 7, 2007) (Baer, D.J.).
`
`Considering only the arguments raised in plaintiff's
`
`1
`timely submissions, and assuming, without deciding, that plain-
`
`1
`
`Plaintiff submitted her reply on January 3, 2014, nearly
`four months late and after I twice ordered that no extension of
`time be given (See Gurvey v. Cowan, Liebowitz & Lathman, P.C.,
`supra, 2013 WL 3718071 at *15; Endorsed Letter of Amy R. Gurvey
`to the undersigned, dated August 29, 2013, (Docket Item 193) at
`1). Therefore, I do not consider the arguments raised in
`plaintiff's Reply and defendants' responsive letter dated January
`13, 2014.
`
`8
`
`SignalShare's Exhibit 1
`Page 8 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 9 of 22
`
`2
`tiff's motion is procedurally appropriate, I deny plaintiff's
`
`motion for reconsideration.
`
`Plaintiff fails to cite any controlling factual or
`
`legal materials that I have overlooked. Plaintiff cannot now
`
`rely on Williams v. Citigroup Inc., 659 F.3d 208 (2d Cir. 2011)
`
`and authorities cited in the appended appellate brief because
`
`they were not cited in her prior submissions in support of her
`
`motion to amend (Plaintiff's Reply in Support of motion to file &
`
`serve Fifth Amendment Complaint, dated Jan. 1, 2013, (Docket Item
`
`129)). Nor does plaintiff identify any facts that would warrant
`
`reconsideration of my conclusion that her motion to amend was
`
`futile, prejudicial, and made in bad faith. Because plaintiff
`
`has not identified controlling factual or legal material that I
`
`overlooked and is attempting to rely on "new" authorities, she
`
`has failed to show any valid basis for reconsideration of my July
`
`Order.
`
`To the extent that plaintiff's motion seeks reconsider-
`
`ation of the Judge Jones' April 2012 Order, I decline to address
`
`2
`
`Several District Judges in this Circuit have concluded that
`a motion for reconsideration of a Magistrate Judge's ruling on a
`non-dispositive matter is not permitted by Rule 60 the Federal
`Rules of Civil Procedure and the Local Civil Rules of this Court.
`See, e.g., NG v. HSBC Mortg. Corp., 262 F.R.D. 135, 135 (E.D.N.Y.
`2009); Koehler v. Bank of Bermuda Ltd., No. M–18–302, 2003 WL
`466206 at *1 (S.D.N.Y. Feb. 21, 2003) (Haight, D.J.).
`
`9
`
`SignalShare's Exhibit 1
`Page 9 of 22
`
`

`
`Case 1:06-cv-01202-LGS-HBP Document 200 Filed 02/25/14 Page 10 of 22
`
`it. Motions for reconsideration must be made within 14 days of
`
`the ruling in issue. Local Civil Rule 6.3. Plaintiff's motion
`
`is more than a year late and can be denied on that ground alone.
`
`Luv N' Care, Ltd. v. Regent Baby Prods. Corp., 10 Civ. 9492
`
`(SAS), 2014 WL 265767 at *1 (S.D.N.Y. Jan. 23, 2014) (Scheindlin,
`
`D.J.); First Horizon Bank v. Moriarty-Gentile, No. 10-CV-00289
`
`(KAM)(RER), 2013 WL 6271840 at *3 (E.D.N.Y. Dec. 4, 2013);
`
`Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552,
`
`554 (S.D.N.Y. 2004) (Marrero, D.J.). In addition, I conclude
`
`that it would be inappropriate for a magistrate judge to review
`
`the decision of an Article III Judge without an express instruc-
`
`tion from the Article III Judge to do so.
`
`Accordingly, plaintiff's motion for reconsideration
`
`(Docket Item 182) is denied in its entirety.
`
`B. Motion for
` Sanctions
`
`1. Applicable Legal Principles
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`Rule 37(b)(2) provides that a court may impose sanc-
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`tions against a party that "fails to obey an order to provide or
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`permit discovery . . . ." Salahuddin v. Harris, 782 F.2d 1127,
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`1132–33 (2d Cir. 1986). Sanctions may be granted against a party
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`under Rule 37(b)(2) if there is noncompliance with an order,
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`"notwithstanding a lack of wilfulness or bad faith, although such
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`factors 'are relevant . . . to the sanction to be imposed for the
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`failure.'" Auscape Int'l v. Nat'l Geographic Soc'y, 02 Civ. 6441
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`(LAK), 2003 WL 134989 at *4 (S.D.N.Y. Jan. 17, 2003) (Kaplan,
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`D.J.), quoting 8 Charles A. Wright, Arthur R. Miller & Richard L.
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`Marcus, Federal Practice & Procedure § 2283, at 608 (2d ed.
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`1994); see Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 671 (7th
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`Cir. 1996) ("Bad faith . . . is not required for a district court
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`to sanction a party for discovery abuses. Sanctions are proper
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`upon a finding of wilfulness, bad faith, or fault on the part of
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`the noncomplying litigant." (citations omitted)); Alexander v.
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`Fed. Bureau of Investigation, 186 F.R.D. 78, 88 (D.D.C. 1998)
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`("In making the determination of whether to impose sanctions,
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`Rule 37(b)(2) does not require a showing of willfulness or bad
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`faith as a prerequisite to the imposition of sanctions upon a
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`party." (citations omitted)). The decision to impose sanctions
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`"is committed to the sound discretion of the district court and
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`may not be reversed absent an abuse of discretion." Luft v.
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`Crown Publishers, Inc., 906 F.2d 862, 865 (2d Cir. 1990), citing,
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`inter alia, Nat'l Hockey League v. Metro. Hockey Club, Inc., 427
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`U.S. 639, 642 (1976) (per curiam); see Design Strategy, Inc. v.
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`Davis, 469 F.3d 284, 294 (2d Cir. 2006) ("A district court has
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`wide discretion in imposing sanctions, including severe sanc-
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`tions, under Rule 37(b)(2) . . . ."); Daval Steel Prods. v. M/V
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`Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991) (same); Dove v.
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`City of New York, 06 Civ. 1096 (SAS), 2006 WL 3802267 at *2
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`(S.D.N.Y. Dec. 26, 2006) (Scheindlin, D.J.) (same); see generally
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`Southern New England Tel. Co. v. Global NAPS Inc., 624 F.3d 123,
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`144–45 (2d Cir. 2010).
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`Rule 37(b)(2) directs a court to "make such orders in
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`regard to the failure as are just," including, inter alia,
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`striking the party's pleading, precluding the introduction of
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`certain evidence, or dismissing the action or rendering a judg-
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`ment by default. Fed.R.Civ.P. 37(b)(2). Additionally, the court
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`must impose reasonable expenses and attorney's fees on the
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`disobedient party "unless the court finds that the failure was
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`substantially justified or that other circumstances make an award
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`of expenses unjust." Fed.R.Civ.P. 37(b)(2).
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`"In deciding whether to impose sanctions under
`Rule 37, the Court considers the following factors:
`'(1) the willfulness of the noncompliant party or the
`reasons for noncompliance; (2) the efficacy of lesser
`sanctions; (3) the duration of the period of noncompli-
`ance; and (4) whether the noncompliant party had been
`warned of the consequences of his noncompliance.'
`Nieves v. City of New York, 208 F.R.D. 531, 535
`(S.D.N.Y. 2002) (citing Bambu Sales, Inc. v. Ozak
`Trading Inc., 58 F.3d 849 (2d Cir. 1995))."
`
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`Oseni v. Tristar Patrol Servs., 05 Civ. 2875 (RJD)(LB), 2006 WL
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`2972608 at *7 (E.D.N.Y. Oct. 18, 2006); accord Agiwal v. Mid
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`Island Mortg. Corp., 555 F.3d 298, 302–03 (2d Cir. 2009).
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`The harsher remedies, such as preclusion of certain
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`evidence, while permitted under Rule 37, "should be imposed only
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`in rare situations . . . ." Update Art, Inc. v. Modiin Publ'g,
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`Ltd., 843 F.2d 67, 71 (2d Cir. 1988). "Such a severe sanction is
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`justified 'when the failure to comply with a court order is due
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`to willfulness or bad faith, or is otherwise culpable.'" Izzo v.
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`ING Life Ins. & Annuity Co., 235 F.R.D. 177, 186 (E.D.N.Y. 2005),
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`quoting Daval Steel Prods. v. M/V Fakredine, supra, 951 F.2d at
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`1365.
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`Fed.R.Civ.P. 37(c)(1) provides as follows:
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`(1) Failure to Disclose or Supplement. If a party
`fails to provide information or identify a witness as
`required by Rule 26(a) or (e), the party is not allowed
`to use that information or witness to supply evidence
`on a motion, at a hearing, or at a trial, unless the
`failure was substantially justified or is harmless. In
`addition to or instead of this sanction, the court, on
`motion and after giving an opportunity to be heard:
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`(A) may order payment of the reasonable expenses,
`including attorney's fees, caused by the failure;
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`(B) may inform the jury of the party's failure;
`and
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`(C) may impose other appropriate sanctions, in-
`cluding any of the orders listed in Rule
`37(b)(2)(A)(i)-(vi).
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`"The purpose of Rule 37(c) is to prevent the practice of 'sand-
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`bagging' an adversary with new evidence." Ritchie Risk-Linked
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`Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280
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`F.R.D. 147, 156 (S.D.N.Y. 2012) (Marrero, D.J.), citing Ebewo v.
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`Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004) (Koeltl,
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`D.J.); Johnson Electric N. Am. Inc. v. Mabuchi Motor Am. Corp.,
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`77 F. Supp. 2d 446, 458–59 (S.D.N.Y. 1999) (Sprizzo, D.J.).
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`Although there is some language in the Advisory Committee Notes
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`to the 1993 amendments to Rule 37 suggesting that preclusion is
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`intended as an "automatic sanction" for untimely disclosures, the
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`Court of Appeals has explained that the structure of the Rule
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`does not warrant this interpretation and has directed District
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`Courts to use a more flexible approach in assessing the conse-
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`quences of a party's untimely disclosure or amendment of a
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`disclosure previously made. Design Strategy Inc. v. Davis,
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`supra, 469 F.3d at 296-98. Specifically, the Court of Appeals
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`has identified four factors to be considered in determining
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`whether an order of preclusion is appropriate: "(1) the party's
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`explanation for the failure to comply with the disclosure re-
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`quirement, (2) the importance of the excluded evidence, (3) the
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`prejudice suffered by the opposing party as a result of having to
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`prepare to meet the new testimony, and (4) the possibility of a
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`continuance." Kam Hing Enterprises, Inc. v. Wal-Mart Stores,
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`Inc., 359 F. App'x 235, 237 (2d Cir. 2010), citing Design Strat-
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`egy Inc. v. Davis, supra, 469 F.3d at 296; accord Zerega Ave.
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`Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213
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`(2d Cir. 2009).
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`2. Application of the
` Foregoing Principles
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`As noted above, defendants have already made out a
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`prima facie case that the imposition of sanctions are appropriate
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`pursuant to Fed.R.Civ.P. 37(b)(2) and (c)(1). Gurvey v. Cowan,
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`Liebowitz & Lathman, P.C., supra, 2013 WL 3718071 at *14-*15.
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`Plaintiff's Rule 26(a)(1) disclosures provide no calculation of
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`damages and fail to identify documents or witnesses relevant to
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`her claims. Furthermore, plaintiff violated my October 2012
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`Order by requesting documents beyond the scope of her malpractice
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`and breach-of-fiduciary duty claims; she also violated my January
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`2013 Order by failing to explain in writing how her document
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`requests were relevant to her remaining claims. The principal
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`issue remaining is, in light of plaintiff's explanations or other
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`facts, what sanctions are warranted, if any.
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`With respect to plaintiff's failure to comply with my
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`prior Orders, defendants seek expenses and attorney's fees
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`associated with their sanctions motion and an Order precluding
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`plaintiff from requesting additional discovery, or, in the
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`alternative, striking her Third Amended Complaint (Defs.' Mem. at
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`10).
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`As explained above, four factors are relevant to the
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`imposition of sanctions pursuant to Rule 37(b)(2). These fac-
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`tors, on balance, weigh in favor of imposing sanctions on plain-
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`tiff.
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`With respect to willfulness, plaintiff offers no excuse
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`for disobeying my Orders. "Non-compliance may be deemed willful
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`when the court's Orders have been clear, when the party has
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`understood them, and when the party's non-compliance is not due
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`to factors beyond the party's control." Handwerker v. AT & T
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`Corp., 211 F.R.D. 203, 209 (S.D.N.Y. 2002) (Marrero, D.J.)
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`(citations and punctuation omitted), aff'd, 93 F. App'x 328 (2d
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`Cir. 2004). A review of the docket in this matter indicates that
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`plaintiff has not misunderstood my Orders; she has simply ignored
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`them. Instead of submitting written explanations in response t