Opinion
02 CIV. 8590 (DLC)
January 7, 2002
Thomas B. Wilinsky, Biancone Wilinsky, LLP, New York, NY, for Plaintiff.
Cynthia L. Ginsburg, Bingham McCutchen LLP, New York, NY, for Defendants.
MEMORANDUM OPINION AND ORDER
The defendants have moved for imposition of sanctions and to stay this action until such sanctions are paid. The motion is denied.
This action is a successor to Kennedy v. Wave Systems Corp., 01 Civ. 5920, filed on June 28, 2001. Pursuant to a scheduling order of November 2001, that litigation was to be ready for trial in June 2002. A May 1, 2002 order set the case down for trial to begin on June 3, 2002. The defendant thereafter gave notice of its intention to move for the imposition of sanctions for the plaintiff's failure to cooperate in discovery. The plaintiff requested at the same time that the case be dismissed without prejudice. The latter request was denied, and a briefing schedule for the sanctions motion was set. At a conference of May 15, which had been scheduled to address the motion for sanctions, the parties presented a stipulation for dismissal of the case without prejudice.
The plaintiff has now refiled his litigation, adding an additional defendant. The defendants seek sanctions in the amount of fees and costs incurred as a result of the prior litigation. The motion Wave Systems brought for sanctions in the prior litigation would have been addressed in that litigation but for the defendant's agreement to dismiss that litigation. The plaintiff would not have able to dismiss the prior litigation on the eve of trial and without prejudice unless he had the consent of the defendant. Wave Systems did not condition its consent on the payment of any sanctions. The plaintiff is entitled by the terms of the stipulation signed by Wave Systems to refile the litigation. Given this history, there is no basis now to impose sanctions on the plaintiff for its conduct in a separate litigation.
Conclusion
The defendants' motion for sanctions and a stay is denied.