Free Response - District Court of Connecticut - Connecticut

- - - - - ,-"- - - - - - - -- - - - - - - - - -- - - Case 3:01-cv-01889-SRU

Filed 01/22/2008 Page 1 of 4

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

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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