U.S. District Court, Western District Court Case Summaries: May 20,

Daily Record (Rochester, NY), May 20, 2008

U.S. District Court, Western District of New York

Discovery

Work Product Privilege

Tracy v. NVR, Inc.

04-CV-6541L

Judge Payson

Background: Plaintiff Patrick Tracy commenced this action on behalf of himself and other similarly-situated individuals, alleging that defendant NVR, Inc. failed to compensate workers at the required overtime rate when working more than forty hours during a work week. Tracy filed a motion to compel responses to several interrogatories one of which requests the defendant's identification of all parties interviewed by the defendant or its agents and any documents concerning the communications. NVR objects to both interrogatories on the grounds that the information requested is protected from disclosure under the work product doctrine.

Ruling: The attorney work product doctrine protects from disclosure materials prepared by counsel in the anticipation of litigation. The plaintiff's request in this situation is found to be one of those work product requests that "seek the identification of persons who have been contacted or interviewed by counsel concerning the case." These are of the variety that are not generally allowed without some showing of hardship. The plaintiff has not made this showing. The plaintiff's request to compel a response to this interrogatory is denied.

J. Nelson Thomas, of Dolin, Thomas & Solomon LLP, for the plaintiff and David T. Schur, of Dickstein Shapiro LLP, for the defendant

Failure to Prosecute

Due Process

Vohwinkel v. Pembroke Central School District

05-CV-37S

Judge Skretny

Background: The plaintiff commenced this employment discrimination action under the Age Discrimination in Employment Act and the defendant has moved for summary judgment. The plaintiff has not responded to the motion which was filed in April of 2006. Plaintiff's counsel moved to withdraw as counsel on the basis that plaintiff ignored his advice, refused to accept his recommendations, would not return his telephone calls, and refused to pay his legal bills.

Ruling: This case is dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure. The plaintiff bears sole responsibility for failing to prosecute as he did not cooperate with his first attorney, he has failed to comply with four court orders directing him to respond to the defendant's motion, and he has failed to communicate with his own counsel. Plaintiff's inaction has caused an unnecessary delay of two years. There is no due process concern since the plaintiff had long been on notice that the case might be dismissed for failure to prosecute.

Patrick J. McDonnell, of McDonnell & Kim, PLLC, for the plaintiff and Jeffrey J. Signor, of Goldberg Segalla LLP, for the defendant

Venue

Objections

New Era Cap Co. v. Prinz Enterprises

06-CV-391S

Judge Skretny

Background: The plaintiff commenced this action in the Western District of New York seeking declaratory relief invalidating a certain patent number. The defendants in this case filed a motion to change venue in August 2007. The magistrate judge ruled that the case should be transferred to the Eastern District of New York in the interest of justice and general convenience. The plaintiff has objected to this ruling.

Ruling: The court notes that a magistrate judge is able to, with several exceptions, hear and determine any pretrial matter pending before the court. The magistrate judge's order on a pretrial matter will be reconsidered by the district judge only when it has been established that it is clearly erroneous or contrary to law. The plaintiff has not established that the decision is clearly erroneous or contrary to law and its objection is denied.

Michael James Berchou, of Phillips Lytle LLP, for the plaintiff and Ronald S. Zimmer for the defendant

Default Judgment

Damages

J&J Sports Productions v. Bimber

07-CV-590S

Judge Skretny

Background: The plaintiff filed the complaint against the defendants in September of 2007 and alleged that defendants illegally exhibited the May 5, 2007 DeLaHoya/Mayweather televised boxing broadcast in their establishment. It would have cost the defendants between $2,200 and $4,200 to have legally broadcasted the program. Defendants failed to answer plaintiff's complaint or otherwise defend the action. The plaintiff has moved for a default judgment against the defendants Floyd E. Bimber, III, and F.B. Dooley's Inc. The court directed defendants to appear on Feb. 19, 2008, and show cause why judgment should not be entered against them as requested. Neither defendant appeared.

Ruling: A default judgment is entered and damages are set at $13,441 for each defendant, a total that includes a deterrence penalty and attorney's fees.

Julie Cohen Lonstein, of Lonstein Law Office, PC, for the plaintiff

Failure to Prosecute

Prisoner Civil Rights

Ninortey v. Gibb

05-CV-6358P

Judge Payson

Background: Plaintiff Annang Ninortey initiated this action on June 2, 2005, alleging that corrections officers at the Attica Correctional Facility, the facility in which Ninortey was incarcerated at the time, assaulted him and failed to protect him from other inmates. The court has been unable to reach the plaintiff who has failed to appear for a scheduling conference.