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Document 257
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
--x
LEONARD BRANDT
Plaintiff
- against -
: Civil Action No. 3:01- 1889 (SRU)
HOME DIAGNOSTICS , INC. , GEORGE H. HOLLEY and JUDY CHENG SALEM , EXECUTRIX OF THE ESTATE OF ROBERT J. SALEM
-----------------------------x
Defendants.
: January 21 ,
2008
DEFENDANTS' OPPOSITION TO BRANDT' S MOTION FOR EXTENSION OF TIME TO REOPEN ACTION
Defendants Home Diagnostics , Inc. (" HDI") and George H. Holley (" Holley
(together Defendants ), by their attorneys Satterlee Stephens Burke & Burke LLP , respectfully
submit this memorandum oflaw in opposition to plaintiff Leonard Brandt's (" Brandt's ) Motion
For Extension of Time To File Motion to Reopen Case , dated January 18 , 2008 ("Pl.' s Mot."
Defendants respectfully submit that Brandt should not be permitted to
reopen the case as a matter oflaw , much less be given more time to do so. As set forth in detail
in Defendants ' Motion to Enforce the Settlement Agreement , dated January 17 , 2008 (" Defs.
Enforcement Mot." ), Brandt entered into a binding settlement agreement on the record and with
the benefit of able counsel on March 8 , 2007 (the " Settlement Agreement")
Agreement that cannot now be undone simply because Brandt has had a change of heart.
- a Settlement
See
Defs. ' Enforcement Mot. at 8- 10.
Indeed , under well-settled Second Circuit precedent ,
Agreement is binding and must be enforced.
the Settlement
See
Powell v. Omnicon , 497 F. 3d
124 , 128-
);
Case 3:01-cv-01889-SRU
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29 (2d Cir. 2007) (enforcing
oral settlement agreement entered into in open court as binding,
stating that " (h ) ere , Powell and
Omnicon entered into a ' voluntary, clear,
explicit , and
unqualified' settlement on the record in open court: Omincon recited the terms of the agreement
on the record , and Powell expressly assented on the record to those terms and the dismissal of the
case
accord Omega Engineering, Inc. v. Omega, S.
, 432 F. 3d 437
443 (2d Cir. 2005);
Red
Ball Interior Demolition Corp. v. Palmadessa , 173 F. 3d
481 484 (2d Cir. 1999). Brandt should
not be given more time so that he can further delay his settlement obligations , especially when
the law is so clear that the settlement agreement is binding and final.
In addition ,
Defendants respectfully submit that Brandt's contumacious
Although
behavior should not be
tolerated any longer than it has already been tolerated.
Brandt' s newly retained counsel states that the Court gave Brandt , in effect, the option of either
complying with the
Settlement Agreement or moving to reopen the
case , such a statement
misapprehends the record since March 8 , 2007 and , specifically, the tenor of the Court' s words
during the telephonic hearing on December 6 , 2007.
On December 6 2007 ,
Brandt was ordered to comply with the Settement
Agreement and the Court' s prior rulings - and when he stated that he may not comply - the
Court told Brandt that it had no more patience for him and that if he chose not to follow the
Court' s rulings , he had no other option than to file a motion to reopen the case.
Tr. at 19-
See Dec.
6
2007
21 (annexed to the Declaration of Paul M. Brown , executed on January 16 , 2008
frstration with Brandt' s
Brown Decl. ), Ex. K). Yet , the Court' s
contempt for its authority
should not be misinterpreted as condoning or permitting a motion to reopen the case. The Court
clearly indicated that it was
not
saying that it would grant such a motion
(id. ), and indeed , on
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December 7 (the very next day), this Court once again ordered Brandt to comply with the terms
of the Settlement Agreement and the prior rulings regarding disputed settlement terms:
Brandt has not provided the defendants with an executed release through October 31 , as per that ruling. Because Brandt has not complied with my earlier order, I again order his compliance.
Third Ruling, p. 2 (Brown Decl. , Ex. L);
see also Defs. ' Enforcement Mot. at 12. Thus , Brandt
in contempt of this Court , and whether or not he chooses to file a motion to reopen the case , it
does not alter the fact that he remains in contempt of Court.
Finally, Brandt's request for additional time beyond January 22 , 2008 to
move to reopen the case is untimely given that he was never granted until January 22 to make a
motion in the first place - January 22 was merely a deadline self- granted by Brandt , not the
Court. Brandt should have
made this motion by December
12 ,
2007 ,
or shortly
thereafter.
Brandt's continued delays are grossly prejudicial to the Defendants , and again , there is no legal
authority for Brandt to move to reopen the case under the circumstances at issue here.
CONCLUSION
For the foregoing reasons ,
Defendants respectfully request that the Court deny
Brandt' s Motion.
Dated: New York, New York
January 21 ,
2008
SATTERLEE STEPHENS BURKE & BURKE LLP
By:
;;;3
Aaron M. Zeisler (admItted Justin E. Klein (admitted
pro hac vice) pro hac vice)
Attorneys for Defendants
230 Park Avenue New York , New York 10169 (212) 818- 9200 (203) 818- 9606 fax
Case 3:01-cv-01889-SRU
Document 257
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CERTIFICATION
This is to certify that on January 21 , 2008 , a copy of the foregoing document was mailed via Federal Express , postage prepaid , to:
Thomas J. Rechen , Esq. Pepe & Hazard LLP 225 Asylum Street Goodwin Square Hartford , CT 06103- 4302
and by regular U. S. Mail , postage prepaid , to:
Richard A. Roberts , Esq. Nuzzo & Roberts , L.L.C. One Town Center O. Box 747 Cheshire , CT 06410
Aaron M. Ze