Arons v. Lalime
| Decision Date | 21 January 1998 |
| Docket Number | No. 94-CV-618A.,94-CV-618A. |
| Parties | Patrick ARONS, et al., Plaintiff, v. James L. LALIME, et al., Defendants. |
| Court | U.S. District Court — Western District of New York |
On August 26, 1994, plaintiffs filed the complaint in this action. This case was referred to Magistrate Judge Carol E. Heckman, pursuant to 28 U.S.C. § 636(b)(1), on November 2, 1994.
On September 16, 1996, defendant Lalime filed a motion for summary judgment, but failed to file a Rule 56 statement as required by Local Rule 56. On August 20, 1996, defendant Harold Dingman filed a motion for summary judgment. On October 17, 1996, plaintiffs filed papers in opposition to defendant Lalime's motion for summary judgment and on October 21, 1996 plaintiffs filed papers in opposition to defendant Dingman's motion for summary judgment. On December 6, 1996, defendant Dingman also filed a motion for sanctions against plaintiffs under Rule 11 of the Federal Rules of Civil Procedure.
On March 11, 1997, Magistrate Judge Heckman filed a Report and Recommendation ("March 11, 1997 Report") recommending that defendant Lalime's motion for summary judgment be denied based upon his failure to comply with Local Rule 56. On March 24, 1997, the Magistrate Judge filed a Report and Recommendation and Order ("March 24, 1997 Report") recommending that defendant Dingman's motion for summary judgment be granted in part and denied in part and denying defendant Dingman's motion for Rule 11 sanctions.
On March 24, 1997, defendant Lalime filed objections to the Magistrate Judge's March 11, 1997 Report. On April 10, 1997, defendant Dingman filed objections to the Magistrate Judge's March 24, 1997 Report. Plaintiffs filed responses to both Lalime's and Dingman's objections on April 25, 1997. Oral argument on objections was held on December 2, 1997.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendations to which objections have been made. Upon a de novo review of the Report and Recommendations, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the March 11, 1997 Report and the March 24, 1997 Report.
Accordingly, for the reasons set forth in Magistrate Judge Heckman's March 11, 1997 Report, defendant Lalime's motion for summary judgment is denied. Likewise, for the reasons set forth in Magistrate Judge Heckman's March 24, 1997 Report, defendant Dingman's motion for summary judgment is granted in part and denied in part and defendant Dingman's motion for Rule 11 sanctions is denied.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION AND ORDER
On February 27, 1997, oral argument was heard on defendant Dingman's motion for summary judgment. Decision was reserved.
Defendant Lalime has also moved for summary judgment but has failed to file a Rule 56 statement as required by Local Rule 56. Due to the complex nature of this RICO action, a Rule 56 Statement is particularly necessary in this case. Because defendant Lalime has failed to file the statement required by this rule, his motion for summary judgment should be denied.
Plaintiff has moved to strike the answer of defendant Miller and for default judgment as to defendant Miller. This motion is unopposed and will be taken under advisement by the court.
Plaintiff has moved to strike an expert witness affidavit. Responsive papers are due on April 10, 1997. Oral argument will be held on Wednesday, May 1, 1997, at 2:00 p.m.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and Report and Recommendation to the attorneys for the parties.
SO ORDERED.
March 10, 1997
This case 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. Defendant Harold Dingman has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Item 77) and for sanctions against plaintiffs pursuant to Fed.R.Civ .P. 11 (Item 101).1 For the following reasons, it is recommended that Dingman's motion for summary judgment be granted in part and denied in part. Dingman's motion for Rule 11 sanctions is denied.
On August 26, 1994 plaintiffs filed this action alleging that between April and October, 1993, defendants induced plaintiffs to invest their money in a fraudulent "serial transaction (roll) program" 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 between April and June of 1993 they transferred a total of $775,317.00 to Centerpointe Capital Corp. ("Centerpointe"), a corporation established by Lalime and defendant David Miller to carry out the serial transaction program. These funds were deposited into an attorney trust account maintained by Dingman, as Centerpointe's attorney, at NationsBank of Virginia.2 Plaintiffs allege that instead of using the solicited funds to buy and sell discounted bank notes and securities as promised, Miller, Dingman, Lalime and the other defendants used the funds for their own personal gain.
After discovery, and after litigation of several disputes that arose between counsel during the course of discovery, Dingman moved for summary judgment pursuant to Rule 56 (see Items 77-79). Dingman claims that he was retained by Miller in early 1993 to provide legal services to Centerpointe in connection with certain proposed real estate transactions. According to Dingman, he had no previous experience or knowledge in the area of securities transactions, he is not nor has he ever been an officer of Centerpointe and played no role in the operation or management of Centerpointe, and he had no communications of any kind with the plaintiffs prior to any of the transactions at issue. He contends that the proof fails in several respects to meet the requirements for establishing a violation of RICO or liability under any of the state law theories set forth in the complaint (see generally Item 79).
In response, plaintiffs have submitted extensive documentation in support of their contention that Dingman was directly involved in the serial transaction "scheme" and the Centerpointe "enterprise" (see Items 86-93). According to plaintiffs, these submissions establish that there are genuine issues of material fact precluding summary judgment in favor of Dingman.
Oral argument was heard by the undersigned on February 27, 1997. For the reasons that follow, it is recommended that Dingman's summary judgment motion be granted in part and denied in part.
Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, supra at 167.
As stated by the Second Circuit:
[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution. ... It must be kept in mind that only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute.
Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir.1994). In this case, the substantive law is the RICO statute.
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