Summary
applying New York law and finding no unjust enrichment because no injustice
Summary of this case from BANCO ESPIRITO SANTO DE INVESTIMENTO v. CITIBANKOpinion
No. 01 Civ. 4191 (LTS)(RLE)
March 28, 2003
ORDER
1. For the reasons stated in the Memorandum Opinion filed simultaneously herewith, it is hereby ORDERED, that Defendant's motion for summary judgment is denied to the extent it seeks dismissal of Plaintiff's breach of contract claim relating to the ConAgra assignment, and is granted in all other respects. Plaintiff is granted summary judgment as to liability on its breach of contract claim relating to the proposed ConAgra assignment; Plaintiff's cross-motion is denied in all other respects. Plaintiff's request for leave to amend its complaint to assert a claim for recovery of a preferential transfer is denied as futile.
2. It is ORDERED that a pre-trial conference shall be held in the above-captioned matter on April 22, 2003 at 10:00 a.m. in Courtroom No. 444, 40 Foley Square, New York, New York 10007 to address further proceedings as to Plaintiff's damages for its breach of contract claim. It is further
3. ORDERED that counsel for the parties confer preliminarily at least twenty-one (21) days prior to the date set forth in paragraph 2 above to discuss the following matters:
a. Facts that are not disputed and facts that are in dispute regarding Plaintiff's damages.
b. Contested and uncontested legal issues regarding Plaintiff's damages.
c. Settlement.
d. Whether mediation might facilitate resolution of the case.
e. Whether the issue of Plaintiff's damages is to be tried to a jury.
f. Whether each party consents to trial of the remaining aspects of the case by a magistrate judge.
g. Anticipated discovery and an appropriate deadline for the conclusion of discovery.
h. Whether expert witness evidence will be required, and appropriate deadlines for expert witness discovery.
i. Evidence to be presented at trial and the length of time expected to be required for the presentation of evidence at trial.
It is further
4. ORDERED that counsel for the parties shall confer and shall prepare, execute and file with the Court, with one courtesy copy provided to chambers of the undersigned, no later than seven (7) calendar days before the date set forth in paragraph 2 above a single document captioned SECOND PRELIMINARY PRE-TRIAL STATEMENT, which shall be signed by all counsel, which shall set forth the following information:
a. A concise statement of all material uncontested or admitted facts.
b. A concise statement of all uncontested legal issues.
c. A concise statement of all legal issues to be decided by the Court.
d. Each party's concise statement of material disputed facts.
e. A concise statement by plaintiff of the legal basis of the damages amount asserted, including citations to all statutes, Federal Rules of Civil Procedure, other rules and case law intended to be relied upon by plaintiff.
f. A concise statement of the measure of proof and on whom the burden of proof falls as to the amount of plaintiff's damages.
g. A statement as to whether all parties consent to trial of the case by a magistrate judge (without identifying which parties have or have not so consented).
h. What, if any, changes should be made in the timing, form or requirements for disclosures under Fed.R.Civ.P. 26(a), including a statement as to when any disclosures required under Fed.R.Civ.P. 26(a)(1) with respect to the remaining claim were made or will be made.
i. The subjects on which disclosure may be needed, and whether discovery should be conducted in phases or be limited to or focus upon particular issues, including a concise description of each party's plan for discovery and a proposed discovery cut-off date.
j. Whether and to what extent expert evidence will be required, and proposed deadlines for expert discovery.
k. What, if any, changes should be made in the limitations on discovery imposed under the Federal Rules of Civil Procedure or the Local Rules of court, and what other limitations should be imposed.
l. The status of settlement discussions and the prospects for settlement of the action in whole or in part, provided that the Preliminary Pre-Trial Statement shall not disclose to the Court specific settlement offers or demands.
m. A statement by each party as to whether the case is to be tried with or without a jury, and the number of trial days expected to be needed for presentation of that party's case.
n. Any other orders that should be entered by the Court under Fed.R.Civ.P. 26(c) or Fed.R.Civ.P. 16(b) and (c).
It is further
5. ORDERED that counsel shall be prepared to discuss the foregoing at the pre-trial conference, as well as whether mediation may be helpful in resolving this case. It is further
6. ORDERED that counsel attending the pre-trial conference shall seek settlement authority from their respective clients prior to such conference. If counsel is not granted such authority, the client must be present in person or available by telephone so that a settlement can be consummated if possible. "Settlement authority," as used herein, includes the power to enter into stipulations and make admissions regarding all matters that the participants may reasonably anticipate discussing at the pre-trial conference including, but not limited to, the matters enumerated in the preceding paragraphs.
7. In the event that any party fails to comply with this Order, the Court may impose sanctions or take other action as appropriate. Such sanctions and action may include assessing costs and attorneys' fees, precluding evidence or defenses, dismissing the action, and/or the imposition of other appropriate penalties.
IT IS SO ORDERED.