Opinion
05 Civ. 2757 (PAC).
July 5, 2006
MEMORANDUM AND ORDER
The Court has before it letters dated June 5, 2006 (Repossi Diffusion), June 9, 2006 (GS Distribution), and June 12, 2006 (Repossi Diffusion), concerning the order to be entered following the June 2, 2006 oral argument of GS Distribution's motions for summary judgment on its first and second counterclaims. After considering the briefs and hearing argument, the Court denied the motions.
In the normal course of events, counsel would submit an order, on notice, reflecting the denial of the two motions. But, as I have come to expect with counsel in this matter, nothing occurs as it should. Repossi Diffusion's counsel submitted a proposed order which reflects not only a denial of the motions for summary judgment, but adds the dismissal of the two counterclaims. Going for extra credit, Repossi Diffusion's counsel seeks a return of the cash bond that Repossi Diffusion posted to secure the injunction directing the return of Plaintiff's jewelry in Defendant's possession. And finally, for good measure, Repossi Diffusion's counsel points out that since the Court relieved Kevin E. Rockitter as counsel for GS Distribution, GS Distribution has no counsel because the Bankruptcy Court has not been asked to authorize the appearance of David Cutner as substitute counsel in this matter.
GS Distribution's counsel responds in a six-page letter revising and extending the key arguments it made on June 2, 2006. While it is not denominated as such, counsel in essence moves for reconsideration. The letter argues that the Court erred in denying its summary judgment motion; the Court's ruling on the breach of contract is said to be in conflict with United States Bankruptcy Judge Gropper's decision that the contract was not properly terminated (and may therefore still be in existence); and further that the Bankruptcy Judge's determination ought to be given res judicata effect. The letter also submits seven pages of additional documentary materials in support of its position that the contract was improperly terminated; and argues, again, there is no proof that the notice of termination was sent "registered mail return receipt requested." Defendant continues to claim that the contract is subject to New York's Franchise Sale Act, and since that statute was breached, GS Distribution may claim its costs in establishing the franchise. GS Distribution requests that in light of the Court's manifest error, it should certify the dismissals of the counterclaims to the United States Court of Appeals for the Second Circuit, pursuant to 28 U.S.C. § 1292(b), contending that each has "controlling questions of law," concerning which "there is substantial ground for difference of opinion." Finally, GS Distribution's counsel strenuously objects to return of the cash bond. Since the "controlling questions of law" ought to be certified, the bond should be maintained. Further, the bond should be maintained until all of GS Distribution's counterclaims are adjudicated.
Repossi Diffusion's counsel returned fire on June 12, 2006 with four more pages of argument. Counsel asserts that the denial of the motions for summary judgment is the equivalent of a dismissal, and since the other counterclaims (which have not been adjudicated) are either meritless or abandoned, that it should be declared the victor. Further, it claims that the cash bond should be returned immediately, claiming that continuing retention of the bond amounts to an "unconstitutional taking."
ORDER
The Court denied GS Distribution's motion for summary judgment on its first two counterclaims. The Court did not dismiss them, however, and it does not do so now. Candidly, however, the claims are essentially moribund, and await disposition pursuant to an appropriate motion. Treating GS Distribution's letter as a motion for reconsideration, the Court denies the motion. The Court also refuses to certify any questions to the Second Circuit for its review. There is absolutely no basis to do so in this ordinary, run of the mill commercial dispute. Further, certification would only further delay the ultimate disposition of this already overlitigated matter.
Neither Repossi Diffusion nor GS Distribution has moved for summary judgment on the remaining counterclaims. Those claims are still pending and have not been adjudicated. The Bankruptcy proceeding continues as well. The Court will not direct the return of the cash bond until this matter is concluded. Both parties will be permitted to make whatever motions they wish as to any remaining claims, without need for a pre-motion conference.
SO ORDERED.