ADP, LLC v. BAKSHI

REPLY BRIEF to Opposition to Motion

D.N.J.January 28, 2019

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ADP, LLC, Plaintiff, v. UMINDERJIT BAKSHI, Defendant. : : : : : : : : : : : Case No.: 15-cv-8385 (CCC)(MF) PLAINTIFF ADP, LLC’S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION REQUESTING LEAVE TO FILE A SUPPLEMENTAL BRIEF OR, IN THE ALTERNATIVE, TO STRIKE PORTIONS OF DEFENDANT’S REPLY BRIEF OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, New Jersey 07960 Telephone: 973-656-1600 Facsimile: 973-656-1611 Attorneys for Plaintiff ADP, LLC Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 1 of 11 PageID: 3729 i TABLE OF CONTENTS INTRODUCTION .................................................................................................... 1 LEGAL ARGUMENT ............................................................................................. 1 POINT ONE .......................................................................................................... 1 THE COURT MUST DISREGARD AND STRIKE BAKSHI’S OPPOSITION BRIEF, AS HE IMPROPERLY AND WITHOUT LEAVE ADDRESSES THE SUBSTANCE OF ADP’S PROPOSE SUPPLEMENTAL BRIEF AND NOT ITS MOTION FOR LEAVE. ........... 1 POINT TWO ......................................................................................................... 3 BAKSHI’S CONTINUAL DISTORTION OF THE FACTS SHOULD NOT PRECLUDE THIS COURT FROM GRANTING ADP LEAVE TO SUBMIT A SUPPLEMENTAL BRIEF. ............................................................ 3 POINT THREE ..................................................................................................... 5 ADP SHOULD BE PERMITTED LEAVE TO SUBMIT ITS SUPPLEMENTAL BRIEF.................................................................................. 5 CONCLUSION ......................................................................................................... 8 Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 2 of 11 PageID: 3730 ii TABLE OF AUTHORITIES Page(s) Cases Albion Engineering Co. v. Hartford Fire Insur. Co., 2018 WL 14969046 (D.N.J. March 26, 2018) ...................................................... 6 Carroll v. Delaware River Port Auth., 2014 WL 3748609 (D.N.J. July 29, 2014) ........................................................... 2 Dasque v. Nordstrom, Inc., 2005 WL 1318866 (D.N.J. June 2, 2005) ............................................................. 2 Kearny Partners Fund, LLC v. United States, 2012 WL 8134754 (D.N.J. July 13, 2012) ........................................................... 5 Levey v. Brownstone Inv. Group, LLC, 2013 WL 3285057 (D.N.J. June 26, 2013) ....................................................... 5, 6 Raritan Baykeeper, Inc. v. NL Industries, Inc., 2018 WL 4110946 (D.N.J. Aug. 29, 2018) .......................................................... 6 U.S. v. Nobel Learning Communities, 2018 WL 2134034 (D.N.J. May 9, 2018) ............................................................. 6 Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 3 of 11 PageID: 3731 1 INTRODUCTION In opposing Plaintiff ADP, LLC’s (“ADP”) motion for leave to file a supplemental brief or, in the alternative, to strike, Defendant Uminderjit Bakshi (“Bakshi”) does nothing more than file his own sur-reply further addressing the substantive arguments in the underlying motion and cross-motion for summary judgment, but without seeking the Court’s permission as required by Local Civil Rule 7.1. Bakshi also attempts to disparage ADP by continuing to twist and distort the facts of this case. None of Bakshi’s outlandish positions are even remotely supported by the record. In his Opposition, Bakshi, however, failed to show why ADP’s request for leave should be denied. Accordingly, ADP’s pending motion should be granted. LEGAL ARGUMENT POINT ONE THE COURT MUST DISREGARD AND STRIKE BAKSHI’S OPPOSITION BRIEF, AS HE IMPROPERLY AND WITHOUT LEAVE ADDRESSES THE SUBSTANCE OF ADP’S PROPOSE SUPPLEMENTAL BRIEF AND NOT ITS MOTION FOR LEAVE. Bakshi’s Opposition Brief (Docket Entry No. 120) must be stricken by the Court, as he uses it as nothing more than an opportunity to file a sur-reply in further support of his underlying motion for summary judgment and opposition to ADP’s cross-motion for summary judgment without seeking the Court’s permission. While Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 4 of 11 PageID: 3732 2 rebuking ADP for filing a motion seeking the Court’s permission to submit supplemental briefing in accordance with Local Civil Rule 7.1, Bakshi attacks the merit of the proposed supplemental brief without seeking leave. On pages 6 – 8, Bakshi improperly argues ADP alleged inconsistent statements (ignoring the ample deposition testimony) preclude the enforcement of the restrictive covenants. Then, on pages 8 – 10, Bakshi improperly argues why collateral estoppel applies on summary judgment. Then, on pages 10 - 13, Bakshi improperly renews his baseless and unsupported request for attorneys’ fees and summarizes his arguments on summary judgment. What Bakshi failed to do on any of these pages is oppose ADP’s motion for leave. If Bakshi wanted an opportunity to respond to ADP’s proposed supplemental brief, Bakshi should have sought the Court’s permission as required by Local Civil Rule 7.1. Because Bakshi failed to ask the Court’s permission, ADP respectfully requests that its opposition brief be stricken. See e.g., Carroll v. Delaware River Port Authority, 2014 WL 3748609, *1 n.2 (D.N.J. July 29, 2014) (denying defendant’s motion for leave to file sur-reply nunc pro tunc because “Defendant failed to ask for, much less receive, permission to file a sur-reply prior to filing the sur-rely” and failed to demonstrate “good cause for ‘nunc pro tunc’ permission”); Dasque v. Nordstrom, Inc., 2005 WL 1318866, *2 n.4 (D.N.J. June 2, 2005) (granting defendant’s motion to strike sur-reply because the sur-reply was Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 5 of 11 PageID: 3733 3 filed “without permission of the Court” and the plaintiff “has not exhibited good cause for this Court to allow a sur-reply.”) POINT TWO BAKSHI’S CONTINUAL DISTORTION OF THE FACTS SHOULD NOT PRECLUDE THIS COURT FROM GRANTING ADP LEAVE TO SUBMIT A SUPPLEMENTAL BRIEF. Bakshi’s Opposition Brief is rife with misrepresentations and a complete distortion of the facts, consistent with his modus operandi this entire litigation. Bakshi’s defense appears to be based on his belief that if he repeats an unsupported statement enough times it becomes true. Unfortunately for Bakshi, the record evidence does not support his baseless statements. Moreover, none of his unsupported statements preclude this Court from granting ADP leave to file a supplemental brief. For example, Bakshi contends that ADP somehow failed to comply with the Court Rules by filing a motion for summary judgment on April 13, 2018. (Docket Entry 120, pp. 1, 5.) Bakshi, however, conveniently ignores that both parties sought permission to file their own motion for summary judgment. (The concurrently submitted Certification of Jennifer Rygiel-Boyd, Exhs. A-B.) During the Status Conference Call on March 13, 2018, The Honorable Mark Falk, U.S.M.J. gave both parties permission to file their own motion. (Docket Entry No. 113, p.2, ¶ 9.) This is exactly how the parties proceeded – on April 13, 2018 at 4:44 p.m. Bakshi filed his Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 6 of 11 PageID: 3734 4 motion, and then at 6:48 p.m. ADP filed its motion on the same day. (Docket Entry Nos. 56-62.) Because the parties proceeded in accordance with Judge Falk’s ruling, Bakshi did not oppose ADP’s motion on the basis that it was improperly filed or that it exceeded Judge Falk’s ruling. (Docket Entry No. 70.) Bakshi never once argued that ADP’s motion should have been filed as a cross-motion. (Id.) Rather this is an argument that Bakshi concocted only in response to ADP’s motion seeking the Court’s permission to file a supplemental brief. In fact, the Court, in its Order dated October 10, 2018, did not find that ADP acted improperly. Rather, the Court ruled “the briefing by the parties is procedurally improper” and instructed the parties to proceed as a motion and cross-motion in accordance with Local Civil Rules 7.1 and 56.1.1 (Docket Entry No. 97.) ADP’s pending cross-motion for summary judgment and motion for leave fully comply with its obligations under both 7.1 and 56.1. Another example of Bakshi’s misrepresentation, Bakshi again erroneously contends that ADP “concealed adverse decisions” and “cherry picked” cases that it presented to the Court. (Docket Entry No. 120, p. 1, 8-9.) This could not be farther from the truth. In cross-moving for summary judgment, ADP fully discussed why 1 Nowhere in its October 10, 2018 Order did the Court rule that ADP was precluded from requesting permission to file a supplemental brief. (Docket Entry No. 97.) Instead, the Court states that the parties needed to act “consistent with L. Civ. R. 7.1 and 56.1.” (Id.) Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 7 of 11 PageID: 3735 5 the Court’s decision in ADP, LLC v. Kusins, Docket No.: ESX-C-264-15 (June 27, 2017), ADP v. Rafferty, 2018 WL 167705 (D.N.J. April 3, 2018), ADP, LLC v. Mork, 2018 WL 3085215 (D.N.J. June 22, 2018), and ADP, LLC v. Trueira, 2018 WL 3756951 (D.N.J. Aug. 8, 2018) are not applicable.2 (Docket Entry Nos. 107/114, pp. 25-26.) These were not decisions that Bakshi “discovered solely through serendipity” only in response to ADP’s cross-motion.3 A simple review of ADP’s cross-motion brief shows that ADP did not conceal these decisions.4 ADP is astounded that Bakshi continues with this ridiculous farce. For Bakshi to even suggest an ethical violation is absurd. POINT THREE ADP SHOULD BE PERMITTED LEAVE TO SUBMIT ITS SUPPLEMENTAL BRIEF. As explained in ADP’s initial motion papers, this Court has permitted parties to submit supplemental briefing to oppose new arguments raised for the first time in 2 Moreover, Bakshi completely misrepresents the Court’s decisions in Rafferty, Mork, and Trueira, which ADP addressed in its cross-motion brief (Docket Entry Nos. 107/114, pp. 25-26) and in its proposed supplemental brief (Docket Entry No. 119-4, pp. 4-6). 3 In fact, Bakshi was well aware of these decisions when he moved for summary judgment on October 24, 2018; nothing precluded him for arguing collateral estoppel then. (Docket Entry No. 98-1, pp. 26-27.) 4 ADP even discussed the Kusins and Rafferty decisions in its prior briefing. (Docket Entry Nos. 58/63, p. 27 n. 10; Nos. 73/80, pp. 13-14; and Docket Entry Nos. 85/90, pp. 6-8.) The Court issued the Mork and Trueira decisions months after the parties’ prior motions for summary judgment were fully briefed and submitted to the Court. Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 8 of 11 PageID: 3736 6 a reply brief. (Docket Entry No. 119-2, pp. 3-4.) Similarly, this Court also has permitted cross-movants to submit a reply brief in further support of their cross- motion since the Court Rules do not permit reply as a matter of right. (Id., p. 5.) Nothing contained in Bakshi’s Opposition Brief changes that. Nor does Bakshi even dispute it. Despite the ample case law in which the Court granted parties’ permission to file supplemental briefing, Bakshi cites only two cases in which the Court denied a party’s request. (Docket Entry No. 120, p. 5.) In Kearny Partners Fund, LLC v. United States, 2012 WL 8134754, *1 n.1 (D.N.J. July 13, 2012), the Court provided no explanation as why it denied the defendant’s request and, consequently, it is unclear whether its holding is even applicable to ADP’s pending motion. However, it is clear based on the Court’s opinion that the decision in Levey v. Brownstone Inv. Group, LLC, 2013 WL 3285057 (D.N.J. June 26, 2013) is not applicable to the instant matter. In that case, the Court denied plaintiff’s request to file a sur-reply in opposition to a motion to dismiss under Rule 12 because it contained improper evidence. Levey, 2013 WL 3285057 at *1. As part of his sur-reply, plaintiff sought the Court to consider an audio recording and an affidavit. Id. at *3. Because this evidence was outside the pleadings, it was not proper and, thus, the Court denied the request. Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 9 of 11 PageID: 3737 7 As ADP previously explained, it should be granted leave to submit supplemental briefing to reply to the newly raised arguments contained in Bakshi’s reply. Even if the Court accepts Bakshi’s assertion that these arguments were raised solely in opposition to ADP’s cross-motion for summary judgment, that does not preclude this Court from granting ADP leave. Indeed, this Court routinely allows cross-movants to file a reply brief to address new arguments raised in opposition. See U.S. v. Nobel Learning Communities, 2018 WL 2134034, *3 (D.N.J. May 9, 2018) (granting cross-movant’s request to file a reply brief to address mischaracterizations and new arguments contained in opposition); Albion Engineering Co. v. Hartford Fire Insur. Co., 2018 WL 14969046, *5 (D.N.J. March 26, 2018) (granting cross-movant’s request to file reply brief); Raritan Baykeeper, Inc. v. NL Industries, Inc., 2018 WL 4110946, *1 (D.N.J. Aug. 29, 2018) (allowing movant to file a reply brief in support of its motion for reconsideration, as the brief responded to the opposition and did not “regurgitate or put forth new arguments”). Thus, leave should be permitted. Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 10 of 11 PageID: 3738 8 CONCLUSION For the above reasons and the reasons in its moving brief, ADP respectfully requests that it be permitted leave to file a supplemental brief or, alternatively, that these Bakshi’s new arguments and request be stricken and disregarded. Respectfully submitted, By: s/ Jennifer Rygiel-Boyd Dated: January 28, 2019 37197230.1 Case 2:15-cv-08385-CCC-MF Document 121 Filed 01/28/19 Page 11 of 11 PageID: 3739