Forte v. Direct Energy Services, LLC
| Forte and Martin Forte |
| Direct Energy Services, LLC |
| 6:2017cv00264 |
| March 6, 2017 |
| U.S. District Court for the Northern District of New York |
| Utica Office |
| Oneida |
| Andrew T Baxter |
| Frederick J Scullin |
| Other Statutory Actions |
| 28 U.S.C. § 1332 Diversity-Fraud |
| Plaintiff |
Docket Report
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This docket was last retrieved on September 13, 2019. A more recent docket listing may be available from PACER.
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| Filing 86 TEXT ORDER: granting #84 Letter Request. A Telephone Conference is set for 9/18/2019 at 02:00 PM before U.S. Magistrate Judge Andrew T. Baxter. Defense counsel is directed to initiate the call and contact chambers at 315-234-8600 when all participants are on the conference line. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 9/13/2019. (nmk) |
| Filing 85 RESPONSE TO LETTER BRIEF filed by Martin Forte as to #84 Letter Request/Motion filed by Direct Energy Services, LLC . (Aschenbrener, Michael) |
| Filing 84 Letter Motion from Michael D. Matthews, Jr. for Direct Energy Services, LLC requesting Scheduling Conference submitted to Judge Andrew T. Baxter . (Matthews, Michael) |
| MOTION SCHEDULING NOTICE as to #83 MOTION to Certify Class Pursuant to Magistrate Judge Baxter's scheduling order the following response and reply deadlines are set: Response to Motion due by 10/8/2019. Reply to Response to Motion due by 10/28/2019. Motion Hearing set for 11/8/2019 before Senior Judge Frederick J. Scullin Jr. will be taken on submit. No oral argument will be held unless otherwise notified by the Court. (bjw, ) |
| Filing 83 MOTION to Certify Class Motion Hearing set for 11/8/2019 10:00 AM in Syracuse before Senior Judge Frederick J. Scullin Jr. Response to Motion due by 10/22/2019 Reply to Response to Motion due by 10/28/2019. filed by Martin Forte. (Attachments: #1 Memorandum of Law Memorandum of Law in support of Motion to Certify Class, #2 Declaration of Adam C. York and Exhibits) (York, Adam) |
| Filing 82 RESPONSE in Opposition re #79 MOTION to Amend/Correct #18 Amended Complaint, filed by Direct Energy Services, LLC. (Attachments: #1 Declaration Attorney Declaration of Michael D. Matthews, Jr. in Support of Direct Energy's Opposition to Plaintiff's Motion to Amend, #2 Exhibit(s) A, #3 Exhibit(s) B, #4 Exhibit(s) C, #5 Exhibit(s) D, #6 Exhibit(s) E, #7 Exhibit(s) F, #8 Exhibit(s) G, #9 Exhibit(s) H, #10 Exhibit(s) I, #11 Exhibit(s) J)(Matthews, Michael) |
| Filing 81 TRANSCRIPT of Proceedings: Telephone Conference held on 5/23/2019 before Judge Andrew T. Baxter, Court Reporter/Transcriber: Eileen McDonough, Telephone number: 315-234-8546. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/27/2019. Redacted Transcript Deadline set for 9/6/2019. Release of Transcript Restriction set for 11/4/2019. Notice of Intent to Redact due by 8/12/2019 (etm, ) |
| Filing 80 TRANSCRIPT REQUEST by Direct Energy Services, LLC for proceedings held on May 23, 2019 before Judge Andrew T. Baxter.. (Wizig, Diane) |
| TEXT NOTICE re #79 MOTION to Amend/Correct #18 Amended Complaint: Response to Motion due by 8/23/2019. (nmk) |
| Filing 79 MOTION to Amend/Correct #18 Amended Complaint, filed by Martin Forte. (Attachments: #1 Memorandum of Law, #2 Declaration of Michael Aschenbrener, #3 Proposed Amended Pleading no redlines with exhibits, #4 Proposed Amended Pleading with redlines and no exhibits) Motions referred to Andrew T. Baxter. (Aschenbrener, Michael) |
| TEXT Minute Entry for stenographically-recorded Telephone Conference held on 5/23/2019 before U.S. Magistrate Judge Andrew T. Baxter: Plaintiff's counsel advise that they are seeking leave to amend the complaint to add new named plaintiffs, who would serve as additional, prospective class representatives. Defense counsel would oppose the motion to amend the complaint and argues that such a pleading would be untimely and futile, because of, inter alia, possible statute of limitations issues. The court discusses the pros and cons, from a case management standpoint, of the alternative ways that the parties could address plaintiff's attempts to add new named plaintiffs--the motion to amend, plaintiff filing a new action on behalf of the new plaintiffs and seeking consolidation, and defendant consenting to the joinder of new plaintiffs while reserving the right to assert challenges to the complaint, including statute of limitation issues and inadequacy of class representatives, in connection with the class certification and summary judgment motions allowed for in this case, based on the current schedule. The court urges the parties to try to work out a process that would allow defendant to raise the issues it is asserting while minimizing delay from inefficient motion practice. The court, however, grants plaintiff's request for leave to file a motion to amend if another alternative is not pursued. Pretrial deadlines remain as set. Appearances: Adam York, Esq., Michael Aschenbrener, Esq. and David Steelman, Esq. for plaintiff; Diane Wizig, Esq. and Michael Matthews, Esq. for defendant. (Court Reporter: Eileen McDonough. Time: 11:01 AM - 11:25 AM.) (nmk) |
| TEXT NOTICE of Hearing: A Telephone Conference is set for 5/23/2019 at 11:00 AM before U.S. Magistrate Judge Andrew T. Baxter. Plaintiff's counsel is directed to initiate the call and contact chambers at 315-234-8600 when all participants are on the conference line. (nmk) |
Filing 78
MEMORANDUM-DECISION and ORDER denying #38 Motion to Modify the Court's August 14, 2017 order to certify it for an interlocutory appeal.. Signed by Senior Judge Frederick J. Scullin, Jr on 3/29/2019. (bjw, )
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| Filing 77 TEXT SCHEDULING ORDER: Plaintiff's expert disclosures regarding class certification and defendant's expert disclosures regarding summary judgment are due by 5/17/2019. Responsive expert disclosures are due by 6/28/2019. Rebuttal expert disclosures are due by 7/26/2019. Expert deposition cutoff is 8/23/2019. Plaintiff's class certification motion is to be filed by 9/10/2019. Defendant's response is due by 10/8/2019, and plaintiff's reply is due by 10/29/2019. Defendant's motion for summary judgment is to be filed by 10/22/2019. Plaintiff's response is due by 11/22/2019, and defendant's reply is due by 12/20/2019. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 2/25/2019. (nmk) |
| Filing 76 STATUS REPORT regarding the Parties' Jointly Proposed Pretrial Deadlines by Direct Energy Services, LLC. (Matthews, Michael) |
| Filing 75 TEXT ORDER: After consultation with the parties, the court determined that the next phase of pretrial proceedings in this case shall consist of the following: (1) expert disclosures by plaintiff with respect to any expert upon which he may rely in connection with a class certification motion and by defendant with respect to any expert upon which it may rely in connection with an anticipated summary judgment motion; (2) responsive expert disclosures with respect to any experts upon which the parties may rely in opposing the class certification or summary judgment motions; (3) any rebuttal expert disclosures; (4) a period of expert discovery during which the parties may depose any disclosed experts; (4) plaintiff's filing of a class certification motion; (5) defendant's response to the class certification motion and filing of a cross-motion for summary judgment; (6) plaintiff's reply with respect to the certification motion and response to the cross-motion for summary judgment; and (7) defendant's reply with respect to its summary judgment motion. Upon resolution of the motions by Senior District Judge Scullin, this court will, to the extent appropriate based on Judge Scullin's rulings, confer again with the parties with respect to a schedule for further pretrial proceedings. The parties shall submit proposed deadlines for the various steps outlined above by 2/22/2019. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 2/14/2019. (nmk) |
| TEXT Minute Entry for stenographically-recorded telephone conference held on 2/14/2019 before U.S. Magistrate Judge Andrew T. Baxter: The court discloses family involvement in a lawsuit involving Ambit Energy, and the parties confirm that Ambit Energy is not related to defendant Direct Energy, and that counsel are comfortable with this court continuing to manage pretrial proceedings in this action. If, after consultation with their clients, any party does have a concern with this court continuing as the assigned Magistrate Judge, they may advise Daniel McAllister of the Clerks Office in Syracuse by confidential letter and the Clerk will, if appropriate and without disclosure of any such communication to this court, re-assign the case to another Magistrate Judge. Court questions counsel regarding expert discloses and how they relate to any anticipated class certification and summary judgment motions. After agreeing on the sequence of expert disclosures and anticipated motions, counsel were directed to meet and confer and send a proposed schedule to the court by 2/22/2019. Appearances: Adam York, Esq., Michael Aschenbrener, Esq. and David Steelman, Esq. for plaintiff; Diane Wizig, Esq. and Michael Matthews, Esq. for defendant. (Court Reporter: Jodi Hibbard. Time: 11:00 AM - 11:27 AM.) (nmk) |
| TEXT NOTICE of Hearing: A Telephone Conference is set for 2/14/2019 at 11:00 AM before U.S. Magistrate Judge Andrew T. Baxter. Plaintiff's counsel is directed to initiate the call and contact chambers at 315-234-8600 when all participants are on the conference line. (nmk) |
| Filing 74 STATUS REPORT Parties' Joint Status Report Regarding Scheduling by Direct Energy Services, LLC. (Matthews, Michael) |
| Filing 73 TRANSCRIPT of Proceedings: Telephone Conference held on 1/16/2019 before Judge Andrew T. Baxter, Court Reporter: Hannah Cavanaugh, Telephone number: (315) 234-8545. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/13/2019. Redacted Transcript Deadline set for 2/25/2019. Release of Transcript Restriction set for 4/23/2019. Notice of Intent to Redact due by 1/28/2019 (hfc, ) |
| Filing 72 TRANSCRIPT REQUEST by Direct Energy Services, LLC for proceedings held on January 16, 2019 before Judge Andrew T. Baxter.. (Wizig, Diane) |
| Filing 71 TEXT ORDER DENYING #68 plaintiff's motion for reconsideration of 63 the court's 11/18/2019 ruling that Mrs. Forte's communications with KamberLaw, after plaintiff executed a retainer agreement with KamberLaw (on 12/8/2016), are not protected by the attorney-client privileged, for the reasons stated on the record during the 1/16/2019 stenographically-recorded telephone conference. Defense counsel is granted leave to conduct, at defendant's expense, a continued deposition of Mrs. Forte to explore her post-retention communications with counsel, and other subjects permitted by 63 my 11/19/2018 text order. Counsel are directed to submit a status report, on or before 1/25/2019, with a proposed, revised schedule for expert discovery and class certification and dispositive motions. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 1/17/2019. (nmk) |
| TEXT Minute Entry for stenographically-recorded telephonic discovery conference held on 1/16/2019 before U.S. Magistrate Judge Andrew T. Baxter: At the request of plaintiff #68 , the court revisits a privilege issue previously addressed at the 11/19/2018 telephone conference, following the court's review of additional documents submitted in camera by plaintiff's counsel and #70 defendant's letter brief. The court questioned counsel and allowed supplemental arguments. For the reasons stated on the record, the court rules that plaintiff still has not sustained its burden of establishing that Mrs. Forte's post-retention communications with counsel were protected by the attorney client privilege. The record does not establish that Mrs. Forte was a client of KamberLaw or the agent for plaintiff in communication with Kamber Law, for purposes of applying the attorney-client privilege. The court further rules that the documents reflecting counsel's communications with plaintiff, Mr. Forte, which the court reviewed in camera, are privileged and are not required to be disclosed to defendant, unless plaintiff makes use of such communications in support of the merit's of plaintiff's claims or his motion for class certification. If plaintiff subsequently offers declarations or further testimony that materially contradicts his deposition testimony, defendant is granted leave to conduct a continued deposition of plaintiff, with costs (but not attorney's fees) to be borne by plaintiff. Plaintiff's counsel advises that he does not intend to move to join additional named plaintiffs to the action at this time. Counsel advise that, aside from the continuation of Mrs. Forte's deposition, fact discovery is completed. The court directs the parties to submit a status report and proposed, revised schedule for expert discovery and motions by 1/25/2019. Appearances: Adam York, Esq. and Michael Aschenbrener, Esq. for plaintiff; Diane Wizig, Esq. and Michael Matthews, Esq. for defendant. (Court Reporter: Hannah Cavanaugh. Time: 2:41 PM - 3:28 PM.) (nmk) |
| TEXT NOTICE of Hearing: Due to a change in the court's calendar, the follow-up Telephone Conference is RESCHEDULED for 1/16/2019 at 02:30 PM before U.S. Magistrate Judge Andrew T. Baxter. Defense counsel is reminded to initiate the call and contact chambers at 315-234-8600 when all participants are on the conference line. (nmk) |
| TEXT NOTICE of Hearing: A follow-up Telephone Conference is set for 1/14/2019 at 01:30 PM before U.S. Magistrate Judge Andrew T. Baxter. Defense counsel is directed to initiate the call and contact chambers at 315-234-8600 when all participants are on the conference line. (nmk) |
| Filing 70 LETTER BRIEF Response to Plaintiff's Letter Brief Addressing Privilege, Agency, and Adequacy Issues [Dkt. 68] by Direct Energy Services, LLC. (Attachments: #1 Declaration of Michael D. Matthews, Jr. with Exhibits A and B)(Matthews, Michael) |
| Filing 69 NOTICE of Appearance by David Lloyd Steelman on behalf of All Plaintiffs (Steelman, David) |
| Filing 68 LETTER BRIEF on Privilege and Agency by Martin Forte. (Attachments: #1 Exhibit(s) 1-Declaration of Jennifer Duffy, #2 Exhibit(s) 1-A, #3 Exhibit(s) 1-B, #4 Exhibit(s) 1-C, #5 Exhibit(s) 2-Declaration of Adam C. York, #6 Exhibit(s) 2-A, #7 Exhibit(s) 2-B, #8 Exhibit(s) 2-C)(York, Adam) |
| Filing 67 TRANSCRIPT REQUEST by Martin Forte for proceedings held on 11/19/2018 before Judge Hon. Andrew T. Baxter.. (York, Adam) |
| Filing 66 TRANSCRIPT of Proceedings: Telephone Conference held on 11/19/2018 before Judge Andrew T. Baxter, Court Reporter: Hannah Cavanaugh, Telephone number: (315) 234-8545. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/19/2018. Redacted Transcript Deadline set for 12/31/2018. Release of Transcript Restriction set for 2/26/2019. Notice of Intent to Redact due by 12/3/2018 (hfc, ) |
| Filing 65 TRANSCRIPT REQUEST by Direct Energy Services, LLC for proceedings held on November 19, 2018 before Judge Andrew T. Baxter.. (Wizig, Diane) |
| Filing 64 TEXT ORDER: granting #60 defendant's motion for a protective order, and blocking, pending resolution of certification and dispositive motions, five depositions noticed by plaintiff after the expiration of the fact discovery deadline, for the reasons stated on the record during the stenographically-recorded telephonic discovery conference held on 11/19/2018. However, the court may allow such depositions by plaintiff, and other fact discovery by both parties, if/when plaintiff's proposed class action is certified and his claims survive dispositive motions. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 11/19/2018. (nmk) |
| Filing 63 TEXT ORDER: denying in part and granting in part #55 plaintiff's motion for a protective order based on invocation of the attorney-client privilege, for the reasons stated on the record during the stenographically-recorded telephonic discovery conference held on 11/19/2018, and subject to further guidance given by the court during the conference, The communication of information by Mrs. Concetta Forte to TheClassActionNews.com and Gateway Law LLP, and the related follow up e-mail to Kamber Law firm, are not protected by the attorney-client privilege, and/or that privilege has been waived by plaintiff. The preliminary communications between law clerk Steve Baker of Kamber Law and Mrs. Forte during their first telephone conversation on 11/29/2016, before Mrs. Forte decided, at some point during the conversation, to seek legal advice from Kamber Law and agreed to provide information to the law firm for that purpose, are not privileged. The subsequent communications between Mrs. Forte and Steve Baker on 11/29/2018, as reflected in Mr. Baker's case notes (which the court reviewed in camera), and Mr. Baker's case notes on that date, are protected by privilege. The court ruled that Mrs. Forte's communications with Kamber Law after plaintiff executed a retainer agreement with Kamber Law (on 12/8/2016) are not privileged because plaintiff did not establish that Mrs. Forte was a client of Kamber Law or that she communicated with Kamber Law about the instant action as the agent of the plaintiff, her husband; however, the court stayed the effect of this ruling pending review of a supplemental submission by plaintiff with respect to the agency issue, and a review of defendant's response. The cost of continuing Ms. Forte's deposition, to address certain areas on which the attorney-client privilege was invoked, will not be shifted to plaintiff, as defendant requested. Plaintiff's supplemental submission, which will also include arguments supporting a possible request by plaintiff for leave to file a motion to join one or more additional class representatives as plaintiffs (assuming the parties cannot resolve this issue by meeting and conferring, as the court directed), shall be filed and served by 11/30/2018. Any response from defendant shall be filed by 12/17/2018. These submissions shall be by letter briefs and shall not exceed five pages. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 11/19/2018. (nmk) |
| Filing 62 LETTER BRIEF Regarding Discovery Dispute by Direct Energy Services, LLC. (Matthews, Michael) |
| TEXT Minute Entry for stenographically-recorded telephonic discovery conference held on 11/19/2018 before U.S. Magistrate Judge Andrew T. Baxter: re #55 plaintiff's motion for a protective order based on invocation of the attorney-client privilege and #60 defendant's motion for a protective order to block five depositions noticed after the expiration of the fact discovery deadline. After questioning counsel and allowing supplemental argument, the court rules, for the reasons stated on the record, and subject to further guidance given by the court during the conference, that #55 plaintiff's motion for a protective order is denied in part and granted in part. After the court's ruling, plaintiff's counsel advised that he may have additional information regarding a communication between the Kamber Law firm and plaintiff Martin Forte, as well as evidence of Mrs. Concetta Forte's communications with defendant Direct Energy that may be relevant to the court's ruling on whether Mrs. Forte was the agent for plaintiff in communication with Kamber Law, for purposes of applying the attorney-client privilege. The court agrees to allow plaintiff to make a supplemental submission with respect to that information before enforcing the ruling that Mrs. Forte's communications with Kamber Law, after plaintiff executed a retainer agreement with that law firm, were not protected by privilege. For the reasons stated on the record, the court granted #60 defendant's motion for a protective order, finding that plaintiff's recent notice of five depositions of the Direct Energy representatives was untimely, without justification. However, the court rules that it may allow such depositions by plaintiff, and other fact discovery by both parties, if/when plaintiff's proposed class action is certified and his claims survive dispositive motions. Plaintiff's counsel raises the possibility that he may attempt to join one or more new class representatives to this action, which defense counsel expects to oppose as untimely. The court directs the parties to meet and confer on the issue and, if they cannot agree, to address this issue in the supplemental briefing that will also address the one outstanding privilege issue. The court sets a briefing schedule for the supplemental submissions. The court anticipates re-setting deadlines to complete follow-up fact discovery relating to his ruling on the privilege issues and expert discovery, and the certification and dispositive motion deadlines, after the outstanding privilege issue and the issue regarding possible joinder of new plaintiffs are resolved. Appearances: Adam York, Esq. and Michael Aschenbrener, Esq. for plaintiff; Diane Wizig, Esq. and Michael Matthews, Esq. for defendant. (Court Reporter: Hannah Cavanaugh; Time: 11:04 AM - 12:08 PM) (nmk) |
| Filing 61 LETTER BRIEF re Deposition Dispute by Martin Forte. (Attachments: #1 Exhibit(s) A - 2018-10 counsel emails)(Aschenbrener, Michael) |
| TEXT NOTICE of Hearing: A Telephone Conference is set for 11/19/2018 at 11:00 AM before U.S. Magistrate Judge Andrew T. Baxter. Plaintiff's counsel is directed to initiate the call and contact chambers at 315-234-8600 when all participants are on the conference line. Any depositions noticed for a date before the conference are STAYED pending the conference. (nmk) |
| Filing 60 Letter Motion from Michael D. Matthews, Jr. for Direct Energy Services, LLC requesting Resolution of Discovery Dispute submitted to Judge Andrew T. Baxter . (Attachments: #1 Exhibit(s) Email Dated August 28, 2018, #2 Exhibit(s) Deposition Notices Dated October 25, 2018)(Matthews, Michael) |
| Filing 59 TEXT ORDER: granting #58 defendant's letter motion to seal. For good cause shown and because the submission supports a non-dispositive motion involving issues of possible attorney-client privilege, the #56 letter brief may be redacted for public filing and the unredacted version filed under seal. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 10/30/2018. (nmk) |
| Filing 57 TEXT ORDER re: #56 defendant's 10/10/2018 letter brief. Plaintiff is directed to submit, by 10/26/2018, for the court's in camera review, the "call notes" referenced in the Aschenbrenner Declaration (par. 11, Dkt. No. 55-1), and a supporting declaration clarifying, to the extent possible, the identity of the representative of KamberLaw who took the notes and his/her position with KamberLaw. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 10/22/2018. (nmk) |
| Filing 58 Letter Motion to Seal unredacted copies of #56 defendant's letter brief and supporting declaration, filed by Direct Energy Services, LLC. (nmk) |
| Filing 56 LETTER BRIEF Regarding Privilege Disputes by Direct Energy Services, LLC. (Attachments: #1 Declaration of Michael D. Matthews, Jr.)(Matthews, Michael) (Attachment 1 replaced on 10/17/2018 to redact personal identifiers.) (nmk) (Additional attachment(s) added on 10/30/2018: #2 ***SEALED Unredacted Letter Brief with Declaration of Michael D. Matthews, Jr.) (nmk, ). |
| Filing 55 LETTER BRIEF re privilege by Martin Forte. (Attachments: #1 Exhibit(s) 1 - Asch Declaration, #2 Exhibit(s) 2 - C Forte Deposition Excerpts)(Aschenbrener, Michael) |
| Filing 54 TEXT ORDER: Plaintiff's letter brief regarding the privilege of email and phone correspondence between Plaintiff's counsel's and Mrs. Forte, and a supporting affidavit, are due by 10/2/2018. Defendant's letter brief on the issue is due by 10/10/2018. Letter briefs are not to exceed 5 pages in length. Pretrial deadlines are stayed pending resolution of the privilege issue. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 9/18/2018. (nmk) |
| Filing 53 LETTER BRIEF to Judge Baxter regarding the status of the parties' meet and confer efforts by Direct Energy Services, LLC. (Matthews, Michael) |
| TEXT Minute Entry for telephonic discovery conference held on 9/18/2018 before U.S. Magistrate Judge Andrew T. Baxter: Prior to the conference, the court received an unredacted copy of #53 Attorney Matthews' letter. Court inquires as to any progress on a resolution the solicitation issue. Counsel are in agreement that there is not an improper solicitation issue in this case. Defense counsel argues that the email and phone call in relation to Plaintiff's counsel's correspondence with Mrs. Forte are not privileged and should be turned over. Counsel may further brief the issue. Plaintiff's letter brief, and a supporting affidavit, are due by 10/2/2018. Defendant's letter brief is due by 10/10/2018. Letter briefs are not to exceed 5 pages in length. Pretrial deadlines are stayed pending resolution of the privilege issue. Appearances: Adam York, Esq. and Michael Aschenbrener, Esq. for plaintiff; Diane Wizig, Esq. and Michael Matthews, Esq. for defendant. (Court Reporter: Jodi Hibbard, Time: 2:01 PM - 2:16 PM) (nmk) |
| Filing 52 TEXT ORDER: granting #50 Letter Request for a discovery conference. A telephonic discovery conference is set for 9/18/2018 at 02:00 PM before U.S. Magistrate Judge Andrew T. Baxter. Defense counsel is directed to initiate the call and contact chambers at 315-234-8600 when all participants are on the conference line. The parties are directed to continue to confer by telephone or in person with respect to the discovery issues raised by defense counsel prior to the conference. Pretrial deadlines are stayed pending the telephone conference. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 8/31/2018. (nmk) |
| Filing 51 RESPONSE in Opposition re #50 Letter Motion from Michael D. Matthews, Jr. for Direct Energy Services, LLC requesting Telephonic Discovery Conference submitted to Judge Andrew T. Baxter filed by Martin Forte. (Aschenbrener, Michael) |
| Filing 50 Letter Motion from Michael D. Matthews, Jr. for Direct Energy Services, LLC requesting Telephonic Discovery Conference submitted to Judge Andrew T. Baxter . (Matthews, Michael) |
| Filing 49 TEXT ORDER: The deadline for completion of fact discovery is extended to 8/28/2018. Discovery cutoff is extended to 12/31/2018 (any expert disclosure(s) by plaintiff is due by 10/15/2018; any expert disclosure(s) by defendant is due by 11/12/2018; and any rebuttal disclosures may be served on or before 12/3/2018.) Substantive motions to be filed by 1/28/2019. Plaintiff's anticipated motion for class certification is to be filed by 10/1/2018. Response to motion due by 11/5/2018. Reply to motion due by 11/26/2018. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 5/23/2018. (nmk) |
| TEXT Minute Entry for telephonic status conference held on 5/23/2018 before U.S. Magistrate Judge Andrew T. Baxter: Parties update the court on the progress of discovery. At the request of counsel, pretrial deadlines are extended by 90 days. Appearances: Adam York, Esq. and Michael Aschenbrener, Esq. for plaintiff; Diane Wizig, Esq. and Michael Matthews, Esq. for defendant. Time: 2:05 PM - 2:14 PM (nmk) |
| TEXT NOTICE of Hearing: The follow-up telephonic status conference set for 5/16/2018 is RESCHEDULED to 5/23/2018 at 02:00 PM before U.S. Magistrate Judge Andrew T. Baxter. Plaintiff's counsel is directed to coordinate the conference call and is to contact chambers at 315-234-8600 once all participants are on the conference line. (nmk) |
| Filing 48 NOTICE by Direct Energy Services, LLC NOTICE OF FIRM NAME CHANGE AND CHANGE OF EMAIL ADDRESSES (Wizig, Diane) |
| Filing 47 AFFIDAVIT re Docket Annotation by Direct Energy Services, LLC. (Matthews, Michael) |
| Andrew M. Edison has been terminated as an attorney of record for defendant per his #46 notice. Edison, McDowell & Hetherington LLP and Fishkin Lucks LLP remain counsel for defendant. (nmk) |
| Filing 46 NOTICE by Direct Energy Services, LLC (Attachments: #1 Proposed Order/Judgment)(Matthews, Michael) |
| Filing 45 TEXT ORDER: The deadline for completion of fact discovery is extended to 5/30/2018. Discovery cutoff is extended to 10/1/2018 (any expert disclosure(s) by plaintiff is due by 7/16/2018; any expert disclosure(s) by defendant is due by 8/14/2018; and any rebuttal disclosures may be served on or before 9/4/2018.) Substantive motions to be filed by 10/29/2018. Plaintiff's anticipated motion for class certification is to be filed by 7/2/2018. Response to motion due by 8/6/2018. Reply to motion due by 8/27/2018. A follow-up status conference is set for 5/16/2018 at 02:00 PM before U.S. Magistrate Judge Andrew T. Baxter. Plaintiff's counsel is directed to coordinate the conference call and is to contact chambers at 315-234-8600 once all participants are on the conference line. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 1/23/2018. (nmk) |
| TEXT Minute Entry for telephonic status conference held on 1/23/2018 before U.S. Magistrate Judge Andrew T. Baxter: Court inquires as to the potential for settlement. Court will continue to waive this case out of the mandatory mediation program. Parties update the court as to the progress of discovery and request an extension of pretrial deadlines. Discovery deadlines are extended by 90 days and the class certification motion deadlines are extended by 120 days. A follow-up status conference is set for 5/16/2018 at 2:00 PM. Appearances: Adam York, Esq. for plaintiff; Michael Matthews, Esq. and Diane Wizig, Esq. for defendant. (Time: 2:04 PM - 2:22 PM) (nmk) |
| Filing 44 STIPULATED PROTECTIVE ORDER: Setting forth the terms and conditions on the exchange and disclosure of confidential materials in this matter. Signed by U.S. Magistrate Judge Andrew T. Baxter on 1/3/2018. (nmk) |
| Filing 43 NOTICE by Direct Energy Services, LLC Stipulated Protective Order (Attachments: #1 Exhibit(s) A - Confidentiality Agreement)(Lucks, Steven) |
| Filing 42 REPLY to Response to Motion re #38 MOTION to Amend/Correct #27 Order on Motion to Dismiss for Failure to State a Claim,, filed by Direct Energy Services, LLC. (Lucks, Steven) |
| Filing 41 TEXT ORDER granting #39 Motion for Limited Admission Pro Hac Vice. Attorney Diane Wizig is hereby admitted to practice in this action on behalf of Direct Energy Services, LLC. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 10/25/2017. (mae) |
| Filing 40 RESPONSE in Opposition re #38 MOTION to Amend/Correct #27 Order on Motion to Dismiss for Failure to State a Claim,, filed by Martin Forte. (Attachments: #1 Declaration of Adam C. York)(York, Adam) |
| Filing 39 MOTION for Limited Admission Pro Hac Vice of Diane Wizig Filing fee $100, receipt number 0206-4160256. filed by Direct Energy Services, LLC. (Attachments: #1 Proposed Order, #2 Affidavit of Sponsor, #3 Petition for Admission to Practice, #4 New Attorney E-Filing Registration Form, #5 Oath of Admission, #6 Georgia Certificate of Good Standing) Motions referred to Andrew T. Baxter. (Lucks, Steven) |
| TEXT NOTICE of Hearing on the #38 Motion to Amend/Correct the #27 Memorandum-Decision and Order: Response to Motion due by 10/24/2017, Reply to Response to Motion due by 10/30/2017. Motion Hearing is set for 11/10/2017 ON SUBMIT before Senior Judge Frederick J. Scullin, Jr. with no appearances necessary. (nmk) |
| Filing 38 MOTION to Amend/Correct #27 Order on Motion to Dismiss for Failure to State a Claim,, filed by Direct Energy Services, LLC. (Attachments: #1 Memorandum of Law in Support, #2 Declaration of Steven M. Lucks, #3 Exhibit(s) 1 - First Amended Class Action Complaint, #4 Exhibit(s) 2 - Memorandum-Decision and Order) (Lucks, Steven) Modified to remove the referral to Judge Baxter on 10/3/2017. (nmk) |
| Filing 37 TEXT ORDER: After consultation with Senior District Judge Frederick J. Scullin, Jr.'s chambers, defendant is granted leave to file a motion for an interlocutory appeal with respect to the #27 memorandum-decision and order. No further pre-motion conference is required. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 10/2/2017. (mae) |
| Filing 36 TEXT ORDER: This action is removed from the Mandatory Mediation Program. The court will revisit settlement prospects at a future status conference. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 10/2/2017. (mae) |
| Filing 35 UNIFORM PRETRIAL SCHEDULING ORDER: Deadline for the joinder of parties and amendment of pleadings is 10/31/2017. Fact discovery deadline is 3/1/2018. Deadline for any expert disclosure(s) by plaintiff is 3/16/2018; deadline for any expert disclosure(s) by defendant is 4/16/2018; and any rebuttal disclosures may be served on or before 5/7/2018. Expert discovery cutoff is 6/1/2018. Substantive motions to be filed by 6/29/2018. Case waived out of the mandatory mediation program. Anticipated length of jury trial: 5 days. Preferred Trial Location: Syracuse. Signed by U.S. Magistrate Judge Andrew T. Baxter on 10/2/2017. (mae) |
| TEXT NOTICE of Hearing: A telephonic status conference is set for 1/23/2018 at 2:00 p.m. before U.S. Magistrate Judge Andrew T. Baxter. Defense counsel is directed to coordinate the conference call and is to contact chambers at 315-234-8600 once all participants are on the conference line. (mae) |
| Filing 34 Text Minute Entry for telephonic Rule 16 conference held before U.S. Magistrate Judge Andrew T. Baxter on 9/29/2017: Counsel confirm that Mandatory Disclosures have been exchanged. The court discussed the competing proposals for an expert discovery schedule and set deadlines consistent with defendant's proposal. Judge Baxter explained the Mandatory Mediation Pilot Program to counsel. Counsel disagree on the appropriate timing of mediation. The court opted the parties out of the program for now, but will revisit this issue at the next status conference. Pretrial deadlines were established. The court set a schedule for plaintiff's anticipated motion for class certification: Motion to be filed by 3/2/2018; response due 4/6/2018; reply due 4/27/2018. Defense counsel requested clarification on the proper procedure for moving for a certificate of appeality on the #27 MDO. The court will confer with Judge Scullin's chambers on this issue. A scheduling order will be issued on behalf of Senior District Judge Frederick J. Scullin, Jr. A telephonic status conference is set for 1/23/2018 at 2:00 p.m. Appearances: Michael J. Aschenbrener, Esq. for plaintiff; Michael D. Matthews, Esq. and Diane Wizig, Esq. for defendant. Time: 2:30PM-2:50PM. (mae) Modified on 10/2/2017 to add text re class cert motion. (mae) |
| Filing 33 ANSWER to #18 Amended Complaint, by Direct Energy Services, LLC.(Lucks, Steven) |
| Filing 32 FRCP 7.1 CORPORATE DISCLOSURE STATEMENT by Direct Energy Services, LLC identifying Corporate Parent Direct Energy Marketing, Inc., Centrica US Holdings, Inc., Centrica Beta Holdings Limited, Centrica PLC for Direct Energy Services, LLC.. (Lucks, Steven) |
| Filing 31 CIVIL CASE MANAGEMENT PLAN (Joint Case Management Plan) by Martin Forte. (York, Adam) |
| Filing 30 TEXT ORDER: Defense counsel has advised the court that they have been unable to file their response to the amended complaint due to the impact of hurricane Harvey. In light of this circumstance and defendant's notification that plaintiff has consented to an extension, the deadline to respond to the amended complaint is reset to 9/22/2017. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 9/13/2017. (mae) |
| Filing 29 TEXT ORDER granting #28 letter request for an adjournment. The deadline for submission of the joint Civil Case Management Plan and exchange of Mandatory Disclosures is extended to 9/22/2017. The telephonic Rule 16 conference set for 9/11/2017 is rescheduled to 9/29/2017 at 2:30 p.m. before U.S. Magistrate Judge Andrew T. Baxter. Plaintiff's counsel is reminded to coordinate the conference call and is to contact chambers at 315-234-8600 once all participants are on the conference line. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 8/30/2017. (mae) |
| Filing 28 Letter Motion for Direct Energy Services, LLC requesting Adjournment of Rule 16 Conference submitted to Judge Andrew T. Baxter . (Lucks, Steven) |
| TEXT NOTICE of Hearing: A telephonic Rule 16 conference is set for 9/11/2017 at 11:00 a.m. before U.S. Magistrate Judge Andrew T. Baxter. Plaintiff's counsel is directed to coordinate the conference call and is to contact chambers at 315-234-8600 once all participants are on the conference line. The joint Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 9/4/2017. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (mae) Modified on 8/15/2017 to correct date. (mae) |
| Reset deadlines: The Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 9/5/2017. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) Note: The deadline in the prior text notice set the deadline to 8/4/2017 in error. The 8/15/2017 text notice has been corrected to reflect the actual deadline of 9/5/2017. (mae) |
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Filing 27
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendant's #24 motion to dismiss Plaintiff's First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is GRANTED in part and DENIED in part. The Court further ORDERS that Plaintiff's unjust enrichment claim is DISMISSED. The Court further ORDERS that this case is referred to Magistrate Judge Baxter for all further pre-trial matters. Signed by Senior Judge Frederick J. Scullin, Jr. on 8/14/2017. (nmk)
|
| Filing 26 MEMORANDUM OF LAW re #24 Motion to Dismiss for Failure to State a Claim, Reply in Further Support of Motion to Dismiss filed by Direct Energy Services, LLC. (Lucks, Steven) |
| Filing 25 RESPONSE in Opposition re #24 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Class Action Complaint filed by Martin Forte. (Attachments: #1 Declaration of Adam C. York)(York, Adam) |
| TEXT NOTICE of Hearing on the #24 Motion to Dismiss for Failure to State a Claim: The Motion Hearing set for 7/14/2017 will be ON SUBMIT with no appearances necessary. (nmk) |
| Filing 24 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Class Action Complaint Motion Hearing set for 7/14/2017 10:00 AM in Syracuse before Senior Judge Frederick J. Scullin Jr. Response to Motion due by 6/27/2017 Reply to Response to Motion due by 7/3/2017. filed by Direct Energy Services, LLC. (Attachments: #1 Memorandum of Law, #2 Declaration, #3 Exhibit(s) 1, #4 Exhibit(s) 2, #5 Exhibit(s) 3) (Lucks, Steven) |
| Filing 23 TEXT ORDER approving #22 Stipulation for an extension of time within which defendant Direct Energy Services, LLC may answer, move or otherwise respond to the First Amended Class Action Complaint until June 2, 2017. Authorized by US Magistrate Judge Andrew T. Baxter on 5/30/2017. (sal ) |
| Filing 22 STIPULATION Extending Defendant's Deadline to File a Responsive Pleading by Direct Energy Services, LLC. (Debelak, Robert) |
|
Filing 21
TEXT ORDER: In light of the #20 Letter Notice, the #10 Motion to Dismiss is withdrawn. IT IS SO ORDERED by Senior Judge Frederick J. Scullin, Jr. on 5/22/2017. (nmk)
|
| Filing 20 NOTICE by Direct Energy Services, LLC re 19 Order, (Debelak, Robert) |
|
Filing 19
TEXT ORDER: In light of the filing of the #18 Amended Complaint, Defendant is directed to notify the Court whether or not it wants to withdraw the #10 Motion to Dismiss or have the Court consider the motion in relation to the amended complaint. Defendant is directed to notify the Court of its decision regarding its motion to dismiss by 5/19/2017. IT IS SO ORDERED by Senior Judge Frederick J. Scullin, Jr. on 5/16/2017. (nmk)
|
| ***Answer due date updated for Direct Energy Services, LLC answer due 5/30/2017. (see) |
| Filing 18 AMENDED COMPLAINT First Amended Class Action Complaint against Direct Energy Services, LLC filed by Martin Forte. (Attachments: #1 Exhibit(s) A - Terms and Conditions, #2 Exhibit(s) B - DES Welcome letter, #3 Exhibit(s) c - Redlined First Amended Complaint)(York, Adam) |
| Filing 17 TEXT ORDER granting #14 , #15 , and #16 Motions for Limited Admission Pro Hac Vice. Attorneys Andrew M. Edison, Robert P. Debelak, III, and Hutson B. Smelley are hereby admitted to practice in this action on behalf of Direct Energy Services, LLC. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 5/8/2017. (mae) |
| Filing 16 MOTION for Limited Admission Pro Hac Vice for Hutson B. Smelley Filing fee $100, receipt number 0206-4003250. filed by Direct Energy Services, LLC. (Attachments: #1 Proposed Order/Judgment, #2 Affidavit of Sponsor, #3 Petition for Admission to Practice, #4 New Attorney E-Filing Registration Form, #5 Signed Oath Admission, #6 Certificate of Good Standing) Motions referred to Andrew T. Baxter. (Lucks, Steven) |
| Filing 15 MOTION for Limited Admission Pro Hac Vice for Robert P. Debelak, III Filing fee $100, receipt number 0206-4003240. filed by Direct Energy Services, LLC. (Attachments: #1 Proposed Order/Judgment, #2 Affidavit of Sponsor, #3 Petition for Admission to Practice, #4 New Attorney E-Filing Registration Form, #5 Signed Oath Admission, #6 Certificate of Good Standing) Motions referred to Andrew T. Baxter. (Lucks, Steven) |
| Filing 14 MOTION for Limited Admission Pro Hac Vice for Andrew M. Edison Filing fee $100, receipt number 0206-4003194. filed by Direct Energy Services, LLC. (Attachments: #1 Proposed Order/Judgment, #2 Affidavit of Sponsor, #3 Petition for Admission to Practice, #4 New Attorney E-Filing Registration Form, #5 Signed Oath Admission, #6 Certificate of Good Standing) Motions referred to Andrew T. Baxter. (Lucks, Steven) |
| Filing 13 TEXT ORDER granting #12 Motion for Limited Admission Pro Hac Vice. Attorney Michael D. Matthews, Jr. is hereby admitted to practice in this action on behalf of Direct Energy Services, LLC. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 5/1/2017. (mae) |
| Filing 12 MOTION for Limited Admission Pro Hac Vice for Michael D. Matthews, Jr. Filing fee $100, receipt number 0206-3998041. filed by Direct Energy Services, LLC. (Attachments: #1 Proposed Order/Judgment, #2 Affidavit of Sponsor, #3 Petition for Admission to Practice, #4 New Attorney E-Filing Registration Form, #5 Signed Oath Admission, #6 Certificate of Good Standing) Motions referred to Andrew T. Baxter. (Lucks, Steven) |
| TEXT NOTICE of Hearing on the #10 Motion to Dismiss: The Motion Hearing set for 6/9/2017 is ON SUBMIT with no appearances necessary. (nmk) |
| Filing 11 TEXT ORDER: In light of the filing of the #10 motion to dismiss, the telephonic Rule 16 conference set for 6/12/2017 and related civil case management plan/mandatory disclosure deadline are hereby CANCELLED. The conference will be rescheduled, if deemed necessary, after disposition of the #10 motion. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 4/26/2017. (mae) |
| Filing 10 MOTION to Dismiss for Failure to State a Claim Motion Hearing set for 6/9/2017 10:00 AM in Syracuse before Senior Judge Frederick J. Scullin Jr. Response to Motion due by 5/23/2017 Reply to Response to Motion due by 5/30/2017. filed by Direct Energy Services, LLC. (Attachments: #1 Memorandum of Law in Support of Motion to Dismiss, #2 Declaration of Steven M. Lucks in Support of Motion to Dismiss, #3 Exhibit(s) 1 to Lucks Declaration, #4 Exhibit(s) 2 to Lucks Declaration, #5 Exhibit(s) 3 to Lucks Declaration) (Lucks, Steven) |
| Filing 9 NOTICE of Appearance by Steven M. Lucks on behalf of Direct Energy Services, LLC (Lucks, Steven) |
| Filing 8 TEXT ORDER approving #7 Stipulation: The deadline for Direct Energy Services, LLC to respond to the #1 complaint is extended to 4/24/2017. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 4/12/2017. (mae) |
| Filing 7 STIPULATION Extending Defendant's Deadline to File a Responsive Pleading by Direct Energy Services, LLC. (Cohen, David) |
| Filing 6 NOTICE of Appearance by Michael J. Aschenbrener on behalf of Martin Forte (Aschenbrener, Michael) |
| ***Answer due date updated for Direct Energy Services, LLC answer due 4/3/2017. (see) |
| Filing 5 AFFIDAVIT of Service for Summons, Complaint served on Direct Energy Services, LLC on 03/13/2017, filed by Martin Forte. (York, Adam) |
| Filing 4 NOTICE of Admission Requirement as to Party Martin Forte; Attorney Michael Aschenbrener, Email address is masch@kamberlaw.com. Phone number is (212) 920-3072. Admissions due by 3/21/2017. {Admission letter and forms emailed to Attorney Aschenbrener on 3/7/2017}(see) |
| Filing 3 G.O. 25 FILING ORDER ISSUED: Initial Conference set for 6/12/2017 at 10:30 AM by telephone, unless the parties are specifically directed to appear, before US Magistrate Judge Andrew T. Baxter. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 6/5/2017. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (see) |
| Filing 2 Summons Issued as to Direct Energy Services, LLC. (see) |
| Filing 1 CLASS ACTION COMPLAINT WITH JURY DEMAND against Direct Energy Services, LLC (Filing fee $400 receipt number 0206-3947108) filed by Martin Forte. (Attachments: #1 Exhibit(s) A, #2 Exhibit(s) B, #3 Civil Cover Sheet)(see) |
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