Opinion
Nos. 02 Civ. 3288 (DLC), 04 Civ. 8474 (DLC).
August 17, 2005
Will S. Snyder, Esq., counsel for plaintiffs in Nickell I and Nickell II All Counsel of Record.
Dear Judge Cote:
We represent defendant Citigroup Global Markets Holdings Inc. ("CGMHI") in Nickell v. Citigroup Global Markets Holdings Inc., 04 Civ. 8474 (DLC) ( "Nickell II"). Nickell II, which is currently pending before Your Honor, is an individual action in which plaintiffs Robert A. and Natalie Bert Nickell assert claims against CGMHI (and no other defendant) for alleged violation of the Texas Securities Act, common-law fraud, statutory fraud, and gross negligence. CGMHI's Phase IV motion to dismiss Nickell II is scheduled to be filed on August 19, 2005.
Mr. and Mrs. Nickell, the plaintiffs in Nickell II, previously brought another action, Nickell v. Citigroup Global Markets Inc. ( "Nickell I"), which is currently pending in the County Court at Law No. 3 in Dallas County, Texas. Nickell I asserts all of the same causes of action asserted in Nickell II, and in addition asserts causes of action for breach of fiduciary duty, grossly negligent misrepresentation, negligent misrepresentation, and negligence, based on substantially the same factual allegations as Nickell II. The defendants in Nickell I are Citigroup Inc., Citigroup Global Markets Inc. ("CGMI"), and a former CGMI broker. CGMI is a subsidiary of CGMHI, the sole defendant in Nickell II.
Last Friday, the Honorable Sally Montgomery, who is presiding over Nickell I in the Texas state court, conducted a hearing in that action. The parties in Nickell I are now awaiting rulings from Judge Montgomery on issues raised at the hearing.
Pursuant to Your Honor's order dated May 19, 2005, CGMHI is currently scheduled to file a motion to dismiss the Nickell II complaint on August 19, 2005. In light of the proceedings now occurring in Nickell I, CGMHI respectfully requests an adjournment to and including October 19, 2005, of the date on which its Phase IV motion to dismiss Nickell II is due. Under the proposed new schedule, plaintiffs' opposition papers would be due on November 9, 2005, and CGMHI's reply papers would be due on November 30, 2005. We are authorized by counsel for plaintiffs in Nickell I and Nickell II, Will S. Snyder, Esq., to state that plaintiffs support this request. This proposed briefing schedule is identical to the current briefing schedule for the Phase IV motions to dismiss in Crane v. Ebbers, No. 04 Civ. 9942 (DLC), and New Mexico State Investment Council v. Alexander, No. 04 Civ. 8309 (DLC), as set forth in the stipulation and order approved by Your Honor on August 11, 2005.
Thank you for your consideration of this request.