Free Response - District Court of Connecticut - Connecticut

Case 3:03-cv—OO712—WWE Document 98 Filed O2/10/2005 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GERTRUDE BAYONNE, :
Plaintiff,
v. Docket No. 303 CV 0712 (WWE)
PITNEY BOWES INC., et al.,
Defendants. FEBRUARY 9, 2005V
DEFENDANT’S RESPONSE TO PLAINTIFF’S NUNC PRO TUNC OBJECTION TO
MAGISTRATE’S DECISION GRANTING MOTION TO COMPEL WITH FEES
Plaintiffs objection (the "Objection") to the Court’s decision to grant Defendant Pitney
Bowes Inc.’s request for fees in connection with its motion to compel exemplifies the sotmdness
of the Court’s initial ruling. By including a number of factual misstatements and irrelevant legal
propositions in the Objection, Plaintiff has, once again, forced Pitney Bowes to incur legal fees
on a discovery matter that could — and should — have been easily resolved by the parties through
meet and confer efforts.}
I. THE COURT PROPERLY DETERMINED THAT PLAINTIFF’S BAD FAITH
CONDUCT IS SANCTIONABLE
3 While Plaintiff complains about the costs Defendant incurred in connection with its
motion to compel, Plaintiff makes no showing whatsoever that Defendant's bill of costs and fees
are unreasonable in any way. Instead, Plaintiff takes the tack of rearguing facts already
determined by the Court. She claims, without more, that she exhibited "no bad faith or harassing
delay tactics in this case," but fails to address in any meaningful manner the points raised in the
‘ In an attempt to reduce undue costs and further delay relating to the COl1I`t’S January 14, 2005
Order, Defendant briefly responds only to factual and legal inaccuracies in the Objection, but
does not address already-briefed issues.
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Case 3:03-cv—00712—WWE Document 98 Filed 02/10/2005 Page 2 of 4
detailed affidavit submitted by Defendant’s counsel relating to Plaintiff s meet and confer
conduct. See Objection at pp. 1-2 (Plaintiffs claims of good faith); Affidavit of Nicole A. Diller
in Support of Motion to Compel Further Responses to Defendanfs First Set of lnterrogatories
(discussing Plaintiff s refusal to meet and confer in good faith for four months). Plaintiff s
counsel still cites to the press of business as her justification for her failure to provide adequate -
discovery responses and refusal to respond to Defendant’s request for supplemental responses.
This Court, however, already considered and rejected that rationale. See January 15, 2005 Order.
Plaintiff also points to her compliance with initial disclosure obligations and the Court’s
directive that Plaintiff supplement her interrogatory responsesz as reasons the Court should
withdraw its January 14 determination. Compliance with some of her obligations, however, does
nothing to reimburse Defendant for the costs incurred as a result of Plaintiff s bad faith.
Moreover, the deterrence goal behind an award of sanctions will not be met without its
imposition. See, e. g., Local Rule l6(g) (requiring counsel to conduct themselves in a manner
that secures the just, speedy and inexpensive determination of the action and permitting sanctions
where counsel fail to comply with Rule).
II. PLAINTIFF’S LEGAL CONTENTIONS HAVE NO RELEVANCE TO THIS ISSUE
AND, IN ANY EVENT, ARE WITHOUT MERIT
Plaintiff s Opposition speaks at length about the legal theories she pursues in the
underlying litigation. Plaintiff s case has no relevance to her conduct during discovery, which is
the matter addressed by the Court’s January 14 order. In any event, the Court awarded summary
judgment to Defendant on Plaintiff s claims for wrongful denial of benefits and breach of
2 While Plaintiff emphasizes that her supplemental responses are over 150 pages in length, she
fails to acknowledge that the great bulk of the responses are simply cut and paste from one, 8-
page narrative, a substantial portion of which itself was cut and paste from Plaintiff s complaint.
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Case 3:03-cv—00712—WWE Document 98 Filed 02/10/2005 Page 3 of 4
fiduciary duty on January 27, 2005. In that Order, the Court held that "there was no wrongful
denial [of benefits, and] the plaintiff s claim for breach of fiduciary duty based on that denial
also fails." See Jan. 27, 2005 Order at 16. Given that Plaintiff herself describes her entire
complaint as premised on the allegedly wrongful denial of benefits (see Opposition at 4), the
Court has already rejected the entirety of Plaintiff s legal contentions. Nothing about Plaintiffs
complaint should alter the Court’s earlier finding with respect to Plaintiff s misconduct.
III. CONCLUSION
For the reasons discussed above, along with the papers and argument Defendant
previously submitted, Defendant respectfully request that the Court affirm its earlier award of
costs and fees. To promote no further briefing on this issue, Defendant does not seek
reimbursement for the fees incurred in drafting this Response.
DEFENDANT ,3-
PITNEY BO , C.
By I
John . Stretton (Fed. Bar No. 19902)
Ed ards & Angell LLP
301 Tresser Boulevard
Stamford, CT 06901
Tel: (203) 353-6844
Fax: (800) 232-0862
Email: [email protected]
Nicole A. Diller (admitted pro hac vice)
Donald P. Sullivan (admitted pro hac vice)
Morgan Lewis & Bockius
One Market, Spear Street Tower
San Francisco, CA 94105
Tel.: (415) 442-1000
Fax: (415) 442-1001
Email: [email protected]
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Case 3:03-cv—00712—WWE Document 98 Filed 02/10/2005 Page 4 of 4
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing DEFENDANT’S RESPONSE TO
PLAINTIFF’S NUNC PRO TUNC OBJECTION TO MAGISTRATE’S DECISION
GRANTING MOTION TO COMPEL WITH FEES has been sent via first class mail, postage
prepaid to:
Mark P. Carey, Esq.
Carey & Associates, P.C.
71 Old Post Road, Suite One
Southport, CT 06890
Nicole A. Diller, Esq.
Morgan Lewis & Bockius, LLP
One Market, Spear Street Tower
San Francisco, CA 94105
this 9th day of February, 2005. K _,_,. ·
ii Tohn G. Stretton
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