Free Response - District Court of Connecticut - Connecticut

I Case 3:03-cv-01016-WWE Document -1 83 Filed: 1/O1 /2006 Page 1 of an _—`I
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I UNITED STATES DISTRICT COURT F _{__ __ H Q _ E _1__ _ I
I DISTRICT OF CONNECTICUT g, » I -= _--- · ;. I
I BRIDGEPORT
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: Case No. 3 :03CVl0_l (DFM) Q
Plaintiff, " = -I=‘ ‘ I I I I
- against- October 31, 2006 I
MERRILL LYNCH CREDIT CORPORATION, I
Defendant. I
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PLAINTIFIPS RESPONSE TO DEFENDANPS MOTION TO CONTINIIJE TRIAL
DATE
Plaintiff, Julie Dillon Ripley Miller, by her attorneys, Begos & Horgan, LLP, responds as
follows to the motion by defendant, Merrill Lynch Credit Corp. ("MLCC") to continue the trial date: ¤
l . Plaintiff j oins in MLCC’s request to continue the trial date from January 3, 2007 to April I
2007, or to such later date as the Court specifies.
2. It is now apparent that the hearings in the NYSE arbitration titled Mller v. Merrill Lynch I
Pierce, Fenner & Smith will not be concluded until December 2006, at the earliest, due to various I
factors beyond any party’s control. Our last hearing date was October l0, 2006. The next hearing 2
dates are scheduled for December 8, 1 1, 12 and 13. Though the parties and the arbitrators all desire I
to conclude the hearing before the end ofthe year, it is possible that it will continue into 2007. Even
if all evidence were submitted before the end of the year, the arbitrators have thirty days thereafter
n to I`GI1Cl€I‘ 8.11 &WEl1`d.
3. Plaintiff wishes to avoid the prejudice that might occur if both matters are tried
simultaneously. MLCC asserts that plaintiffs recovery in the arbitration could affect her recovery
in this action, just as MLPFS has argued in the arbitration that plaintiffs potential recovery in this
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Case 3:03-cv-01016-WWE Document 183 Filed 11/O1/2006 Page 2 of 3 I
action should be taken into account by the arbitrators. It would be unfair and prejudicial to plaintiff I
for the trials of both actions to gc forward, essentially simultaneously, with the defendant in each
action contending that the defendant in the other should be held responsible for any loss. Plaintiff I
respectfully submits that, by allowing the arbitration to conclude before the trial of this action begins, I
much of that prejudice can be avoided} i
4. The existence of two separate actions is solely the result ofthe way that MLCC’s and
. MLPFS’s corporate parent, Merrill Lynch & Co., has chosen to organize its aflhirs. Thus, for
example, Merrill Lynch & Co. chose to operate its lending business through MLCC, even though
MLCC lends largely to MLPFS customers. Similarly, MLPFS has insisted that its customers agree
to arbitrate all disputes, while MLCC has no such provision.
5. Because plaintiff consents to the relief MLCC seeks on this motion, we will not
endeavor to address the statements in MLCC’s motion with which she disagrees. However, her
silence should not be considered a concession ofthe accuracy of any statement. I
' The potentially complex question whether, and the extent to which, an award in the arbitration would I
reduce damages in this action is nearly impossible to address in the abstract. For example, plaintiff claims, I
inter alia, securities fraud and breach of fiduciary duty against MLPFS, but not against MLCC. Depending _
on the claims on which the arbitrators award damages, and the manner in which they calculate the damage
attributable to the particular claim, it is possible that all, some or none ofthe award in the arbitration might
reduce ajudgment in this action. Certainly, if the arbitrators awarded plaintiff a sum that fully compensated
her for all of the losses caused by MLPFS and MLCC, her claim in this action would become moot upon ,
MLPFS’ satisfaction of that award.
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{ Case 3:03-cv-01016-WWE Document 183 Filed 11/O1/2006 Page 3 of 3 {
{ 6. For the reasons set forth above, plaintiff joins in MLCC’s motion to adjourn the trial of {
this action, and requests that the Court adjourn that trial from January 3, 2007 to April 2007, or such
later date as the Court finds convenient. _
Dated: Westport, Connecticut
October 31, 2006
BEGOS & HORGAN, LLP {
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By: J
. atrick W. Begos ctl9090)
Attorneys for Plaintiff
327 Riverside Avenue {
Westport, CT 06880 5
(203) 226-9990 {
(203) 222-4833 (fax) E
pwb@,begoshorgan.com l
CERTIFICATE OF SERVICE {
This is to certify that a copy ofthe foregoing was mailed via first class mail, postage prepaid, {
on October 31, 2006 to: !
Douglas C. Conroy, Esq.
Paul, Hastings, Janofsky & Walker, LLP
1055 Washington Boulevard
Stamford, CT 06901-2217
Jonathan S. Bowman, Esq.
Cohen & Wolf
llI5 Broad Street
Bridgeport, CT 06604
atrick W. Beg s _
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