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Lincoln Diagnostics, Inc. v. Panatrex

July 21, 2008


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


This case is before the court for ruling on Defendant's Motion for Reconsideration of Grant of Partial Summary Judgment (#57). This court has carefully considered the documents submitted by the parties and the arguments of the parties. Following this careful consideration, Defendant's Motion for Reconsideration (#57) is DENIED.


On May 29, 2008, this court entered an Opinion (#52) in this case. In the lengthy Opinion, this court thoroughly detailed Defendant's failure to timely respond to written discovery, including Defendant's failure to provide any documents in response to Plaintiff's Requests for Production. This court also recounted the fact that Defendant's purported Response to Interrogatories, filed almost two months late, was deficient in numerous respects. This court further recounted the fact that Defendant refused to make any of the corporate representatives Plaintiff sought to depose available for depositions. In addition, this court concluded that Defendant's failure to respond in a timely manner to Plaintiff's Requests for Admission of Facts resulted in the admission of all the facts included in the requests. This court also noted that Defendant, in its two-page Response to the Motion for Partial Summary Judgment, did not specifically respond to any of the Undisputed Material Facts listed by Plaintiff in its Motion, so that Defendant conceded Plaintiff's version of the facts. Based upon Defendant's admissions, this court granted Plaintiff's Motion for Partial Summary Judgment. In its Opinion (#52), this court also granted Defendant's counsel's Motion to Withdraw as Counsel. This court further stated that the case remained scheduled for a bench trial on August 25, 2008, at 9:00 a.m. solely on the issue of the proper and appropriate remedy to be awarded to Plaintiff.


On June 27, 2008, Defendant, through new counsel, filed a Motion for Reconsideration of Grant of Partial Summary Judgment (#57) and a Memorandum in Support (#58).*fn1 Defendant argued that Defendant's former counsel failed to promptly respond to discovery and failed to advise Defendant "that if the discovery responses were not filed there would be dire consequences." Defendant argued that this "inadvertence or mistake by the defendant's former attorney" provided the basis for vacated this court's earlier entry of partial summary judgment. Defendant attached a copy of e-mails exchanged between Defendant's president, Ray L. Hsiao, and Defendant's former counsel, Michael Berns. In the e-mails, Defendant's former counsel stated that he had attached Plaintiff's Requests for Production and Interrogatories and, later, on February 11, 2008, asked Hsiao to provide responses to the interrogatories because "plaintiff's attorney is pushing to get them back." Defendant asked this court to vacate its order allowing the motion for partial summary judgment, reopen discovery and continue the trial date.

On July 2, 2008, Plaintiff filed a Memorandum of Law in Opposition to Motion for Reconsideration (#61). Plaintiff argued that Defendant failed to proffer any valid reason for granting any of the relief sought by Defendant. Plaintiff pointed out that Defendant asserted that Defendant did not receive discovery requests from its prior counsel until December 5, 2007, but did not "explain the reason for [Defendant's] continued refusal to abide by applicable rules governing discovery following [Defendant's] admitted receipt of the Interrogatories and Production Requests on or about December 5, 2007."*fn2 Plaintiff argued that the neglect, whether by Defendant's former counsel or by Defendant, was not shown to be excusable so no basis exists for reconsidering this court's prior ruling.

On July 2, 2008, after Plaintiff's Memorandum was filed, Defendant filed a Motion for Leave to File Supporting Document (#62). Defendant stated that the attached declaration supported the motion for reconsideration "but was unavailable to then be attached" to the motion "due to the distance of the corporate representatives of [Defendant] from its attorneys." Defendant attached Hsiao's declaration, dated July 2, 2008. In the declaration, Hsiao stated:

3. I did not know until the court's order of May 29, 2008 that because of the failure of my attorney Michael Berns to respond to the request for admission of facts that partial summary judgment was entered against Panatrex on liability.

4. The requests for admission of facts was not sent to me until by e-mail on December 4, 2007. See attached Exhibit 1. I was not told there was a deadline of responding within 45 days after November 5 or that the court could enter partial summary judgment against Panatrex, Inc. if no timely response was served.

5. I did not prepare the response that was prepared by and later served by Mr. Berns on February 7, 2008. See attached Exhibit 2.

Hsiao attached a copy of an e-mail sent by Attorney Berns on December 4, 2007, which stated that the Plaintiff's Requests for Admissions was attached. Hsiao also attached a copy of Defendant's Response to Requests for Admission of Facts which was served on February 7, 2008. Defendant also filed a Memorandum in Support (#63) which simply said that the declaration was not available at the time the motion was filed.

On July 8, 2008, Plaintiff filed a Memorandum of Law in Response to Motion for Leave to File Supporting Document (#64). Plaintiff noted that Defendant had a pattern of waiting until Plaintiff filed a response to a motion and then filing a declaration in support of the motion. Plaintiff further noted that Defendant provided no explanation, other than that the Hsiao declaration was not "available" when the motion was filed, for the late attempt to file the declaration. Plaintiff argued that the deficiencies in Defendant's Motion for Leave to File should result in denial of the ...

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