Legal Malpractice

A Motion for Summary Judgment in Legal Malpractice that Just Can't be Decided

By (Andrew Lavoott Bluestone)

PROTOSTORM, LLC ,  -against- ANTONELLI, TERRY, STOUT & KRAUS, LLP, ., Defendants. 08-CV-931 (NGG) (JO) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK  2010 U.S. Dist. LEXIS 109466 [October 12, 2010, Decided]  is the Court's lament over a motion for summary judgment gone bad.  Federal Courts have a Rule 56.1 which is supposed to, in essence, organize motions for summary judgment in a manner that allows all to understand the competing arguments.  Here, motions, cross-motions, letters, amended complaints, faulty local Rule 56.1 statements have all conspired to render the entire effort meaningless.
 

"As the court has already noted, the parties have made piecemeal letter submissions relating to the ATS&K Defendants' summary judgment motions. If the court were to decide those motions on the merits, it could either (1) attempt to parse the letters for relevant information and argument [*19] and consider it, despite the parties' failure to comply with the requirements of Federal Rule of Civil Procedure 56, or (2) ignore the letters and solely consider the parties' formal submissions.

Each option is problematic. If the court were to attempt to parse the parties' many letters, it might well miss important information. Moreover, the court would not have the benefit of any Rule 56.1 statements covering the information submitted by letter. Finally, it is not clear whether the parties have put forth all of the evidence and arguments that they would like the court to consider, or if they exercised some degree of restraint. On the other hand, if the court were to ignore the letters altogether in deciding the instant motions, it would almost certainly be faced with either a motion for reconsideration or a new motion for summary judgment because both parties have indicated that they would like the court to consider additional information. This course is not an efficient use of the court's limited resources. The lack of Rule 56.1 statements covering the newly submitted evidence — and the infirmities in the parties' current Rule 56.1 statements — also militate against deciding the [*20] motions' on the current record.

Consequently, the court denies the ATS&K Defendants' motions under Federal Rules of Procedure 12(b)(6) and 56 without prejudice. It appears that merits discovery is now complete. To the extent that this is true — or when it is — the ATS&K Defendants are granted leave to file another motion for summary judgment on substantially the same grounds as their present motions. To the extent that they wish to do so, the parties should confer regarding a possible briefing schedule. The parties are further instructed to reacquaint themselves with Local Rule 56.1 and are counseled that the court will not consider any letters that are submitted after briefing is complete.

Finally, while the court does not address the substance of the ATS&K Defendants' motions at this time, it offers one observation. Before evaluating whether Plaintiffs' claims are time-barred, the court will need to engage in a choice-of-law analysis. "In diversity cases, 'state statutes of limitations govern the timeliness of state law claims', and state law 'determines the related questions of what events serve to commence an action and to toll the statute of limitations.'" Diffley v. Allied-Signal. Inc., 921 F.2d 421, 423 (2d Cir. 1990) [*21] (quoting Personis v. Oiler, 889 F.2d 424, 426 (2d Cir. 1989)).

The parties appear to assume that the court's determination of which statute of limitation applies will be made by weighing the interests of various states. (See, e.g., Def. Mem. 25-26.) This may not be the appropriate inquiry. New York's statute of limitations applies unless a nonresident plaintiff sues upon a cause of action that arose outside of New York. See Stafford v. International Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981); N.Y. C.P.L.R. § 202; see also Bianco v. Erkins, 243 F.3d 599, 608 (2d Cir. 2001) ("Modern choice-of-law decisions are simply inapplicable to the question of statutory construction presented by C.P.L.R. 202. C.P.L.R. 202 is to be applied as written, without recourse to a conflict of law analysis.") (quoting Ledwith v. Sears Roebuck & Co., 231 A.D.2d 17, 660 N.Y.S.2d 402, 406 (1st Dep't 1997)). To the extent that the parties agree that New York law governs issues related to the statute of limitations, they should tailor any future arguments appropriately."
 

Full post as published by New York Attorney Malpractice Blog on October 19, 2010 (boomark / email).