Holness et al v. LG Chem Ltd et al, No. 7:2017cv07726 - Document 194 (S.D.N.Y. 2020)

Court Description: MEMO ENDORSED ORDER denying without prejudice to renewal by formal motion 182 Motion for Summary Judgment; granting 183 Motion to Strike document from the record.; denying 187 Letter Motion for Conference. ENDORSEMENT: On November 5, 2020, Defendant EC Supply, Inc. filed a motion for summary judgment. (ECF No. 182.) Later that day, Plaintiffs Janee Holness and Michael Holness filed a motion to strike the motion for summary judgment on the grounds that Defendant EC Supply, Inc. failed to follow this Court's pre-motion conference requirement. (ECF No. 183.) Plaintiffs further requested permission to file a motion against Third-Party Defendant Gigglesworld to strike its answer and for sanctions for various misrepresentation s allegedly made throughout the discovery process. (Id.) Also on November 5, 2020, Defendant EC Supply, Inc. submitting a letter indicating that it had no objection to Plaintiffs' motion to strike and requesting a pre-motion conference. (ECF No. 184.)On November 10, 2020, Plaintiffs replied to EC Supply, Inc.'s letter reiterating that the motion should be stricken, indicating that they have viable opposition to Defendant EC Supply's motion, and requesting permission to file a Rule 11 motion and a Rule 37 motion against Third-Party Defendant Gigglesworld. (ECF No. 186.) Between November 11, 2020 and November 16, 2020 Third-Party Defendant Gigglesworld and Plaintiffs submitted correspondence to the Court regarding Giggl esworld's status in this litigation. Gigglesworld was brought into this litigation on July 16, 2018, when defendant LG Chem Ltd. filed a third-party complaint against Giggleworld. (ECF No. 49.) On July 7, 2019, defendant LG Chem Ltd. filed an amended third-party complaint adding EC Supply, Inc. as a third-party defendant. (ECF No. 77.) On August 27, 2019, Plaintiffs filed an Amended Complaint which named EC Supply, Inc. as a direct defendant. (ECF No. 85.) On September 4, 2019, EC Sup ply, Inc. filed an answer to the Amended Complaint, asserting a crossclaim against all defendants and third-party defendants, including Gigglesworld. (ECF No. 91.) On October 29, 2020, LG Chem settled this matter and its claims were dismissed. Alth ough the stipulation of dismissal does not indicate that EC Supply, Inc.'s claims against Gigglesworld were dismissed, Gigglesworld maintains that it is no longer a Third-Party Defendant. (ECF No. 191.) Gigglesworld argues that Gigglesworld w as only a party to the Third-Party action, which has now been dismissed and therefore can no longer be considered a Third-Party Defendant. Plaintiffs argue that EC Supply, Inc.'s crossclaim against Gigglesworld survives because it was not incl uded in the stipulation of dismissal. Further, EC Supply was named as a direct defendant in the Amended Complaint and asserted a crossclaim against Gigglesworld in response. The Court agrees that the recent partial dismissal does not impact EC Sup ply, Inc.'s crossclaim against Gigglesworld. Upon review of the parties' correspondence, the Court waives the pre-motion conference requirement and grants Plaintiffs' and Defendant EC Supply, Inc.'s requests to file their resp ective motions with the following briefing schedule: moving papers shall be served (not filed) on December 21, 2020; opposition papers shall be served (not filed) on January 25, 2021; reply papers shall be served on February 8, 2021. All motion doc uments shall be filed on the reply date, 11/18/2020 February 8, 2021. The parties shall provide two copies of their respective motion documents as they are served. As long as the Court's Emergency Rules remain in effect, parties shall additio nally provide copies via email. Accordingly, Plaintiffs' motion to strike Defendant EC Supply, Inc.'s motion for summary judgment is GRANTED; Defendant EC Supply, Inc.'s motion for summary judgment is DENIED, without prejudice, pendi ng re-filing; and Third-Party Defendant Gigglesworld's motion for a conference is DENIED. The Clerk of the Court is kindly directed to terminate the motions at ECF No. 182, 183, and 187. So Ordered. (Signed by Judge Nelson Stephen Roman on 11/18/20) (yv)

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Holness et al v. LG Chem Ltd et al Doc. 194 Case 7:17-cv-07726-NSR-PED Document 194 Filed 11/18/20 Page 1 of 27 MEMORANDUM ENDORSEMENT 11/18/2020 Michael Holness, et al v. LG Chem LTD, et al 17-cv-7726 (NSR) On November 5, 2020, Defendant EC Supply, Inc. filed a motion for summary judgment. (ECF No. 182.) Later that day, Plaintiffs Janee Holness and Michael Holness filed a motion to strike the motion for summary judgment on the grounds that Defendant EC Supply, Inc. failed to follow this Court’s pre-motion conference requirement. (ECF No. 183.) Plaintiffs further requested permission to file a motion against Third-Party Defendant Gigglesworld to strike its answer and for sanctions for various misrepresentations allegedly made throughout the discovery process. (Id.) Also on November 5, 2020, Defendant EC Supply, Inc. submitting a letter indicating that it had no objection to Plaintiffs’ motion to strike and requesting a pre-motion conference. (ECF No. 184.) On November 10, 2020, Plaintiffs replied to EC Supply, Inc.’s letter reiterating that the motion should be stricken, indicating that they have viable opposition to Defendant EC Supply’s motion, and requesting permission to file a Rule 11 motion and a Rule 37 motion against Third-Party Defendant Gigglesworld. (ECF No. 186.) Between November 11, 2020 and November 16, 2020 Third-Party Defendant Gigglesworld and Plaintiffs submitted correspondence to the Court regarding Gigglesworld’s status in this litigation. Gigglesworld was brought into this litigation on July 16, 2018, when defendant LG Chem Ltd. filed a third-party complaint against Giggleworld. (ECF No. 49.) On July 7, 2019, defendant LG Chem Ltd. filed an amended third-party complaint adding EC Supply, Inc. as a third-party defendant. (ECF No. 77.) On August 27, 2019, Plaintiffs filed an Amended Complaint which named EC Supply, Inc. as a direct defendant. (ECF No. 85.) On September 4, 2019, EC Supply, Inc. filed an answer to the Amended Complaint, asserting a crossclaim against all defendants and third-party defendants, including Gigglesworld. (ECF No. 91.) On October 29, 2020, LG Chem settled this matter and its claims were dismissed. Although the stipulation of dismissal does not indicate that EC Supply, Inc.’s claims against Gigglesworld were dismissed, Gigglesworld maintains that it is no longer a Third-Party Defendant. (ECF No. 191.) Gigglesworld argues that Gigglesworld was only a party to the Third-Party action, which has now been dismissed and therefore can no longer be considered a Third-Party Defendant. Plaintiffs argue that EC Supply, Inc.’s crossclaim against Gigglesworld survives because it was not included in the stipulation of dismissal. Further, EC Supply was named as a direct defendant in the Amended Complaint and asserted a crossclaim against Gigglesworld in response. The Court agrees that the recent partial dismissal does not impact EC Supply, Inc.’s crossclaim against Gigglesworld. Upon review of the parties’ correspondence, the Court waives the pre-motion conference requirement and grants Plaintiffs’ and Defendant EC Supply, Inc.’s requests to file their respective motions with the following briefing schedule: moving papers shall be served (not filed) on December 21, 2020; opposition papers shall be served (not filed) on January 25, 2021; reply papers shall be served on February 8, 2021. All motion documents shall be filed on the reply date, Dockets.Justia.com Case 7:17-cv-07726-NSR-PED Document 194 Filed 11/18/20 Page 2 of 27 February 8, 2021. The parties shall provide two copies of their respective motion documents as they are served. As long as the Court’s Emergency Rules remain in effect, parties shall additionally provide copies via email. Accordingly, Plaintiffs’ motion to strike Defendant EC Supply, Inc.’s motion for summary judgment is GRANTED; Defendant EC Supply, Inc.’s motion for summary judgment is DENIED, without prejudice, pending re-filing; and Third-Party Defendant Gigglesworld’s motion for a conference is DENIED. The Clerk of the Court is kindly directed to terminate the motions at ECF No. 182, 183, and 187. Dated: November 18, 2020 White Plains, NY Case 7:17-cv-07726-NSR-PED 194 Filed 11/18/20 Page 3 Page of 27 1 of 1 Case 7-17-cv-07726-NSR DocumentDocument 193 Filed in NYSD on 11/16/2020 Case 7:17-cv-07726-NSR-PED 194 Filed 11/18/20 Page 4 Page of 27 1 of 2 Case 7-17-cv-07726-NSR DocumentDocument 192 Filed in NYSD on 11/16/2020 Alexander J. Drago Of counsel adrago@maringoodman.com November 16, 2020 Via ECF Honorable Nelson S. Román United States District Judge United States Courthouse 300 Quarrapos Street White Plains, NY 10601-4150 Re: Michael Holness, et al. v. LG Chem LTD, et al. Civil Action No.: 7:17-cv-07726 Dear Judge Román: As you are aware, I represent plaintiffs in the above matter. I write in reply to counsel for Gigglesworld’s letter of today’s date. Plaintiffs filed an amended complaint against EC Supply. In its amended answer, EC Supply asserted claims for contribution and indemnification against Gigglesworld. Those claims by EC Supply against Gigglesworld have not been extinguished by stipulation or Court Order. If the only action against EC Supply was LG’s third-party complaint against EC Supply, then perhaps claims against Gigglesworld would be affected. However, since plaintiff filed a direct action against EC Supply via an amended complaint and EC Supply asserted claims against Gigglesworld in its amended answer, Gigglesworld is still a party in this case via the claims asserted by EC Supply against Gigglesworld. With regard to the claims of misrepresentations by Gigglesworld in the discovery process, counsel for Gigglesworld completely ignores the misrepresentations which were made in written discovery responses prior to any depositions being held. Apparently, counsel takes the position that outright misrepresentations made in written discovery are cured and should be forgiven if down the road truthful answers are provided. As was pointed out in my earlier correspondence, Gigglesworld had in its possession at the time it misrepresented its purchase history the very Case 7:17-cv-07726-NSR-PED 194 Filed 11/18/20 Page 5 Page of 27 2 of 2 Case 7-17-cv-07726-NSR DocumentDocument 192 Filed in NYSD on 11/16/2020 November 16, 2020 Page 2 of 2 records showing purchases from EC Supply which were not exchanged until after the expiration of statute of limitations. Further, counsel for Gigglesworld must not have read that portion of my correspondence indicating the benefit to Gigglesworld for misrepresenting this information was its part in the false narrative that it never purchased and/or sold LG batteries. I respectfully request a conference with the Court so that all these issues may be discussed. Respectfully Submitted, Alexander J. Drago AJD/jz cc: George A. Smith, Esq. Murphy & Lambiase 26 Scotchtown Avenue Goshen, NY 10924 (845)-291-7100 (Office) (845)-291-7171 (Fax) GeorgeSmith@mllawonline.com Attorney for Third-Party Defendant GIGGLESWORLD CORPORATION James S. Wolford, Esq. Gallo & Iacovangelo, LLP 180 Canal View Blvd., Suite 100 Rochester, NY 14623 (585) 454-7145 JamesWolford@GalloLaw.com Attorneys for Defendant/Third-Party Defendant EC SUPPLY, INC. Case 7:17-cv-07726-NSR-PED 194 Filed 11/18/20 Page 6 Page of 27 1 of 3 Case 7-17-cv-07726-NSR DocumentDocument 191 Filed in NYSD on 11/16/2020 Case 7:17-cv-07726-NSR-PED 194 Filed 11/18/20 Page 7 Page of 27 2 of 3 Case 7-17-cv-07726-NSR DocumentDocument 191 Filed in NYSD on 11/16/2020 Case 7:17-cv-07726-NSR-PED 194 Filed 11/18/20 Page 8 Page of 27 3 of 3 Case 7-17-cv-07726-NSR DocumentDocument 191 Filed in NYSD on 11/16/2020 Case 7:17-cv-07726-NSR-PED 194 Filed 11/18/20 Page 9 Page of 27 1 of 1 Case 7-17-cv-07726-NSR DocumentDocument 190 Filed in NYSD on 11/12/2020 Case7:17-cv-07726-NSR-PED 7:17-cv-07726-NSR-PED Document 194 188 Filed Filed11/18/20 11/11/20 Page Page10 1Page of 27 3 1 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 189 Filed in NYSD on 11/12/2020 Alexander J. Drago Of counsel adrago@maringoodman.com November 11, 2020 Via ECF Honorable Nelson S. Román United States District Judge United States Courthouse 300 Quarrapos Street White Plains, NY 10601-4150 Re: Michael Holness, et al. v. LG Chem LTD, et al. Civil Action No.: 7:17-cv-07726 Dear Judge Román: Please be advised I represent plaintiffs in the above matter. I write in reply to counsel for defendant Gigglesworld Corporation’s letter of November 11, 2020 (Doc. No. 187). Although counsel’s letter states he will be filing a more formal response to plaintiffs’ request for a premotion conference for a motion against Gigglesworld, I felt compelled at the present time to address an absolute mischaracterization of the present state of the pleadings in this matter. Counsel states in his letter that Gigglesworld Corporation is a former third-party defendant. That statement is not true. Gigglesworld is still a third-party defendant in this matter. There is no stipulation and/or order dismissing any of the claims by any of the presently existing parties against Gigglesworld. On July 16, 2018, defendant LG Chem Ltd. filed a third-party complaint against Gigglesworld (Doc. No. 49). Thereafter, on July 7, 2019, defendant LG Chem Ltd. filed an amended third-party complaint adding EC Supply Inc. as a third-party defendant (Doc. No. 77). On September 4, 2019, defendant EC Supply Inc. filed an answer to LG’s amended thirdparty complaint. In that answer, EC Supply filed a cross-claim against all defendants and thirdparty defendants and a cross-claim against all defendants and third-party defendants for Case7:17-cv-07726-NSR-PED 7:17-cv-07726-NSR-PED Document 194 188 Filed Filed11/18/20 11/11/20 Page Page11 2Page of 27 3 2 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 189 Filed in NYSD on 11/12/2020 November 11, 2020 Page 2 of 3 indemnification. Therefore, pursuant to the filing of that answer, there were viable claims by EC Supply against all the parties, and specifically Gigglesworld Corporation. On September 4, 2019, defendant EC Supply Inc. filed an answer to plaintiff’s amended complaint which named EC Supply as a direct defendant. In that answer, EC Supply repeated its cross-claim for contribution against every defendant in the action and a cross-claim for contribution against all defendants and third-party defendants (Doc. No. 90). Pursuant to this filing, EC Supply confirmed its various claims against Gigglesworld. On September 11, 2019, Gigglesworld filed an answer to all cross-claims and counterclaims (Doc. No. 91). In that filing, Gigglesworld denied the allegations of the cross-claims and counterclaims brought by EC Supply against Gigglesworld. Therefore, by virtue of this filing, Gigglesworld was admitting that EC Supply had cross-claims and counterclaims against Gigglesworld. As the Court is aware, plaintiff recently settled their action against LG Chem Ltd. and thereafter, a partial stipulation of dismissal was entered in this matter (Doc. No. 180). However, the partial stipulation of dismissal only involved all actions and claims brought by LG Chem against EC Supply and Gigglesworld and any claims by EC Supply and Gigglesworld against LG Chem. The stipulation had absolutely no effect on any of the claims brought by EC Supply against Gigglesworld or Gigglesworld against EC Supply Inc. Therefore, the present state of the pleadings in this matter is that plaintiffs have a direct action against EC Supply Inc. and EC Supply Inc. has claims for indemnification and contribution against Gigglesworld and Gigglesworld has the same claims against EC Supply Inc. There has been no stipulation or order affecting any of these claims. Based upon the foregoing, Gigglesworld’s counsel’s statement that Gigglesworld is a former third-party defendant is not accurate. Respectfully Submitted, Alexander J. Drago AJD/jz cc: George A. Smith, Esq. Murphy & Lambiase 26 Scotchtown Avenue Goshen, NY 10924 Case7:17-cv-07726-NSR-PED 7:17-cv-07726-NSR-PED Document 194 188 Filed Filed11/18/20 11/11/20 Page Page12 3Page of 27 3 3 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 189 Filed in NYSD on 11/12/2020 November 11, 2020 Page 3 of 3 (845)-291-7100 (Office) (845)-291-7171 (Fax) GeorgeSmith@mllawonline.com Attorney for Third-Party Defendant GIGGLESWORLD CORPORATION James S. Wolford, Esq. Gallo & Iacovangelo, LLP 180 Canal View Blvd., Suite 100 Rochester, NY 14623 (585) 454-7145 JamesWolford@GalloLaw.com Attorneys for Defendant/Third-Party Defendant EC SUPPLY, INC. 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 13Page of 271 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 188 Filed on 11/11/2020 Alexander J. Drago Of counsel adrago@maringoodman.com November 11, 2020 Via ECF Honorable Nelson S. Román United States District Judge United States Courthouse 300 Quarrapos Street White Plains, NY 10601-4150 Re: Michael Holness, et al. v. LG Chem LTD, et al. Civil Action No.: 7:17-cv-07726 Dear Judge Román: Please be advised I represent plaintiffs in the above matter. I write in reply to counsel for defendant Gigglesworld Corporation’s letter of November 11, 2020 (Doc. No. 187). Although counsel’s letter states he will be filing a more formal response to plaintiffs’ request for a premotion conference for a motion against Gigglesworld, I felt compelled at the present time to address an absolute mischaracterization of the present state of the pleadings in this matter. Counsel states in his letter that Gigglesworld Corporation is a former third-party defendant. That statement is not true. Gigglesworld is still a third-party defendant in this matter. There is no stipulation and/or order dismissing any of the claims by any of the presently existing parties against Gigglesworld. On July 16, 2018, defendant LG Chem Ltd. filed a third-party complaint against Gigglesworld (Doc. No. 49). Thereafter, on July 7, 2019, defendant LG Chem Ltd. filed an amended third-party complaint adding EC Supply Inc. as a third-party defendant (Doc. No. 77). On September 4, 2019, defendant EC Supply Inc. filed an answer to LG’s amended thirdparty complaint. In that answer, EC Supply filed a cross-claim against all defendants and thirdparty defendants and a cross-claim against all defendants and third-party defendants for 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 14Page of 272 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 188 Filed on 11/11/2020 November 11, 2020 Page 2 of 3 indemnification. Therefore, pursuant to the filing of that answer, there were viable claims by EC Supply against all the parties, and specifically Gigglesworld Corporation. On September 4, 2019, defendant EC Supply Inc. filed an answer to plaintiff’s amended complaint which named EC Supply as a direct defendant. In that answer, EC Supply repeated its cross-claim for contribution against every defendant in the action and a cross-claim for contribution against all defendants and third-party defendants (Doc. No. 90). Pursuant to this filing, EC Supply confirmed its various claims against Gigglesworld. On September 11, 2019, Gigglesworld filed an answer to all cross-claims and counterclaims (Doc. No. 91). In that filing, Gigglesworld denied the allegations of the cross-claims and counterclaims brought by EC Supply against Gigglesworld. Therefore, by virtue of this filing, Gigglesworld was admitting that EC Supply had cross-claims and counterclaims against Gigglesworld. As the Court is aware, plaintiff recently settled their action against LG Chem Ltd. and thereafter, a partial stipulation of dismissal was entered in this matter (Doc. No. 180). However, the partial stipulation of dismissal only involved all actions and claims brought by LG Chem against EC Supply and Gigglesworld and any claims by EC Supply and Gigglesworld against LG Chem. The stipulation had absolutely no effect on any of the claims brought by EC Supply against Gigglesworld or Gigglesworld against EC Supply Inc. Therefore, the present state of the pleadings in this matter is that plaintiffs have a direct action against EC Supply Inc. and EC Supply Inc. has claims for indemnification and contribution against Gigglesworld and Gigglesworld has the same claims against EC Supply Inc. There has been no stipulation or order affecting any of these claims. Based upon the foregoing, Gigglesworld’s counsel’s statement that Gigglesworld is a former third-party defendant is not accurate. Respectfully Submitted, Alexander J. Drago AJD/jz cc: George A. Smith, Esq. Murphy & Lambiase 26 Scotchtown Avenue Goshen, NY 10924 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 15Page of 273 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 188 Filed on 11/11/2020 November 11, 2020 Page 3 of 3 (845)-291-7100 (Office) (845)-291-7171 (Fax) GeorgeSmith@mllawonline.com Attorney for Third-Party Defendant GIGGLESWORLD CORPORATION James S. Wolford, Esq. Gallo & Iacovangelo, LLP 180 Canal View Blvd., Suite 100 Rochester, NY 14623 (585) 454-7145 JamesWolford@GalloLaw.com Attorneys for Defendant/Third-Party Defendant EC SUPPLY, INC. 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 16Page of 271 of 1 Case Case 7-17-cv-07726-NSR DocumentDocument 187 Filed on 11/11/2020 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 17Page of 271 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 186 Filed on 11/10/2020 Alexander J. Drago Of counsel adrago@maringoodman.com November 10, 2020 Via ECF Honorable Nelson S. Román United States District Judge United States Courthouse 300 Quarrapos Street White Plains, NY 10601-4150 Re: Michael Holness, et al. v. LG Chem LTD, et al. Civil Action No.: 7:17-cv-07726 Dear Judge Román: Please be advised I represent plaintiffs in the above matter. I write in response to counsel for EC Supply Inc.’s letter requesting a pre-motion conference in this matter. First, although plaintiffs are addressing the issues raised in counsel’s letter, plaintiffs are not withdrawing their request that the motion for summary judgment be stricken since it was filed without the benefit of a pre-motion conference. Plaintiffs believe they have viable opposition to the summary judgment motion on the grounds of relation back and substitution of defendants based upon a mistake concerning a party’s identity and other relief available under FRCP Rule 15. Second, if the Court does grant EC Supply’s request to file a motion for summary judgment on the grounds of statute of limitations, plaintiffs request permission to file a motion pursuant to Rule 11 and Rule 37, for sanctions and other appropriate relief, entering judgment against thirdparty defendant Gigglesworld Inc. d/b/a Happy Habits Inc. and setting the matter down for an inquest against said third-party defendant on the grounds that Gigglesworld either negligently or intentionally withheld the identity of EC Supply in various discovery responses and in deposition. This conduct prevented the plaintiffs from adding EC Supply as a direct defendant until after the expiration of the statute of limitations. At first blush, one would wonder what was the benefit to 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 18Page of 272 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 186 Filed on 11/10/2020 November 10, 2020 Page 2 of 3 Gigglesworld of hiding the identity of EC Supply. Plaintiffs submit the deceit went along with the false narrative by Gigglesworld that it did not sell these batteries, which has been disproved. Prior to suit being filed in this matter, my office sought to identify from whom Gigglesworld purchased its inventory of LG batteries. I contacted the claims adjuster for Gigglesworld to seek information from the insured about the purchase history. The first response from the claims adjuster advised that the insured denied selling these types of batteries (later in discovery, Gigglesworld admitted it sold LG batteries). Thereafter the claims adjuster advised that the insured would review its records to see from whom they purchased LG batteries. Later on, the claims adjuster again reiterated that the insured was still adamant that the batteries were not sold by Gigglesworld, but if they did purchase them, it was from an entity known as VapeWorld, an entity owned by defendant RRV Enterprises. Based upon later information, it was determined that RRV Enterprises had no involvement. After suit was commenced, Gigglesworld continued to misrepresent from whom it purchased the batteries. In interrogatories answers, Gigglesworld stated it did not purchase any LG batteries for two years prior to plaintiff’s incident. Thereafter, on March 14, 2019, during the deposition of Timothy Serino, president of Gigglesworld, he specifically denied knowing from which distributor Gigglesworld had purchased LG batteries. Finally, on June 6, 2019, (after the expiration of statute of limitations) at the deposition of Angela Bernardo, an employee of Gigglesworld, she admitted LG batteries were purchased from EC Supply Inc. Thereafter, counsel for Gigglesworld served all parties with the relevant purchase records from 2015 and 2016 which disclose EC Supply’s identity and prove Gigglesworld misled the parties about its battery purchases. Gigglesworld repeatedly misrepresented the identity of the supplier of the batteries which prevented plaintiffs from naming EC Supply during the statute of limitations. Such conduct has prevented the plaintiffs from a viable recovery against EC Supply, a sophisticated seller in the stream of commerce of these batteries. Plaintiffs have an expert who opines the batteries have an inherent defect that can cause them to burn/explode and under strict liability, every company in the chain is liable even absent notice. Such conduct deserves a severe punishment and it is on that basis that plaintiffs seek permission to file a motion against Gigglesworld. Since this misrepresentation rises to the level of a spoliation claim, plaintiffs request they be entitled to discovery from Gigglesworld (before plaintiffs file a motion on the issue) regarding how it conducted the search for the relevant purchase documents to enable plaintiff to utilize that discovery in its motion against Gigglesworld. At the time that discovery was obtained from 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 19Page of 273 of 3 Case Case 7-17-cv-07726-NSR DocumentDocument 186 Filed on 11/10/2020 November 10, 2020 Page 3 of 3 Gigglesworld, the spoliation and sanction issue was not in the fore, but it is now highly relevant based upon EC Supply seeking to be dismissed under statute of limitations. This type of conduct by Gigglesworld should not be countenanced and it should be made to pay a penalty and price for discovery responses and conduct contrary to the intent and spirit of the Federal Rules. Moreover, it should not be shielded from judgment based upon lack of diversity. The District Courts have wide latitude in fashioning a remedy/sanction. By engaging in this sordid conduct, the diversity issue should not trump punishment. I await your direction and guidance. Respectfully Submitted, Alexander J. Drago AJD/jz cc: George A. Smith, Esq. Murphy & Lambiase 26 Scotchtown Avenue Goshen, NY 10924 (845)-291-7100 (Office) (845)-291-7171 (Fax) GeorgeSmith@mllawonline.com Attorney for Third-Party Defendant GIGGLESWORLD CORPORATION James S. Wolford, Esq. Gallo & Iacovangelo, LLP 180 Canal View Blvd., Suite 100 Rochester, NY 14623 (585) 454-7145 JamesWolford@GalloLaw.com Attorneys for Defendant/Third-Party Defendant EC SUPPLY, INC. 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 20Page of 271 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 185 Filed on 11/09/2020 Alexander J. Drago Of counsel adrago@maringoodman.com November 9, 2020 Via ECF Honorable Nelson S. Román United States District Judge United States Courthouse 300 Quarrapos Street White Plains, NY 10601-4150 Re: Michael Holness, et al. v. LG Chem LTD, et al. Civil Action No.: 7:17-cv-07726 Dear Judge Román: Please be advised I represent plaintiffs in the above matter. I wish to alert the Court that plaintiffs will file their letter in response to EC Supply Inc.’s request for a pre-motion conference by the close of business tomorrow, November 10, 2020. I appreciate the Court’s attention and indulgence in this matter. Respectfully Submitted, Alexander J. Drago AJD/jz cc: George A. Smith, Esq. Murphy & Lambiase 26 Scotchtown Avenue Goshen, NY 10924 (845)-291-7100 (Office) 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 21Page of 272 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 185 Filed on 11/09/2020 November 9, 2020 Page 2 of 2 (845)-291-7171 (Fax) GeorgeSmith@mllawonline.com Attorney for Third-Party Defendant GIGGLESWORLD CORPORATION James S. Wolford, Esq. Gallo & Iacovangelo, LLP 180 Canal View Blvd., Suite 100 Rochester, NY 14623 (585) 454-7145 JamesWolford@GalloLaw.com Attorneys for Defendant/Third-Party Defendant EC SUPPLY, INC. 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 22Page of 271 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 184 Filed on 11/05/2020 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 23Page of 272 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 184 Filed on 11/05/2020 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 24Page of 271 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 183 Filed on 11/05/2020 Alexander J. Drago Of counsel adrago@maringoodman.com November 5, 2020 Via ECF Honorable Nelson S. Román United States District Judge United States Courthouse 300 Quarrapos Street White Plains, NY 10601-4150 Re: Michael Holness, et al. v. LG Chem LTD, et al. Civil Action No.: 7:17-cv-07726 Dear Judge Román: Please be advised I represent plaintiffs in the above matter. I write to object to the motion for summary judgment filed today by defendant EC supply. First, EC Supply never requested a pre-motion conference which is a clear requirement under your individual practice rules. If counsel for EC Supply had adhered to your individual practice rules, I would have had the opportunity to object to the filing of the motion. In addition, if such a conference was held, I also would have sought permission to file a motion against a thirdparty defendant Gigglesworld d/b/a Happy Habits Inc., to strike its answer and for sanctions for various misrepresentations made during the discovery process which impact the motion improperly filed by EC Supply Inc. Counsel for EC Supply Inc. should be well aware of your individual rules as a member of this Court. Moreover, during the last conference call that the parties had with Magistrate Paul Davison, Mr. Wolford, counsel for EC Supply, advised the Court that EC Supply might possibly file a motion for summary judgment and the Magistrate advised Mr. Wolford that is something that we would discuss at the next conference, which is now scheduled for November 9, 2020. I respectfully request that the filed motion for summary judgment be stricken from the docket. 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 25Page of 272 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 183 Filed on 11/05/2020 November 5, 2020 Page 2 of 2 Respectfully Submitted, Alexander J. Drago AJD/jz cc: George A. Smith, Esq. Murphy & Lambiase 26 Scotchtown Avenue Goshen, NY 10924 (845)-291-7100 (Office) (845)-291-7171 (Fax) GeorgeSmith@mllawonline.com Attorney for Third-Party Defendant GIGGLESWORLD CORPORATION James S. Wolford, Esq. Gallo & Iacovangelo, LLP 180 Canal View Blvd., Suite 100 Rochester, NY 14623 (585) 454-7145 JamesWolford@GalloLaw.com Attorneys for Defendant/Third-Party Defendant EC SUPPLY, INC. 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 26Page of 271 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 182 Filed on 11/05/2020 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _______________________________________________ MICHAEL HOLNESS and JANEE HOLNESS, Plaintiffs, - vs LG CHEM LTD., and RRV ENTERPRISES, LLC, EC SUPPLY INC.’S NOTICE OF MOTION FOR SUMMARY JUDGMENT Civ. No.: 17:17-cv-7726(NSR)(PED) Defendants. _______________________________________________ LG CHEM LTD., Third-Party Plaintiff, - vs GIGGLESWORLD CORPORATION, D/B/A HAPPY HABITS VAPE AND SMOKE SHOP and EC SUPPLY, INC. Third-Party Defendants. _________________________________________ PLEASE TAKE NOTICE, that upon the Statement of Material Facts, pursuant to Local Rule 56.1, the Declaration of James S. Wolford, dated November 4, 2020, with exhibits, and the accompanying Memorandum of Law, Defendant EC Supply Inc. (hereinafter “EC Supply”) will move this Court, before the Honorable Nelson S. Roman, United States District Judge, in Courtroom 218 of the United States Courthouse, 300 Quarropas Street, White Plains, New York 10601-4150, for an order pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing Plaintiffs’ complaint, specifically causes of action eleven through and including sixteen, on Statute of Limitations grounds. 7:17-cv-07726-NSR-PED 194in NYSD Filed 11/18/20 Page 27Page of 272 of 2 Case Case 7-17-cv-07726-NSR DocumentDocument 182 Filed on 11/05/2020 Dated: Rochester, NY November 4, 2020 Respectfully submitted, GALLO & IACOVANGELO, LLP /s/ James S. Wolford, Esq. James S. Wolford, Esq. Attorneys for Defendant EC Supply, Inc. 180 Canal View Blvd., Suite 100 Rochester, NY 14623 Telephone: (585) 454-7145 E-Mail: JamesWolford@GalloLaw.com TO: Alexander J Drago, Esq. Attorney for Plaintiff Marin Goodman LLP 500 Mamaroneck Ave, Suite 501 Harrison, NY 10528 CC: Troy Cunningham, Esq. Attorney for Defendant LG Chem Ltd. Lewis Brisbois Bisgaard & Smith LLP 77 Water Street 21st Floor New York, NY 10005 RRV Enterprises LLC Pro Se Defendant 2121 S. Portland Avenue Oklahoma City, OK 73108 George A. Smith, Esq. Attorney for Gigglesworld Corporation d/b/a Happy Habits Vape and Smoke Shop Murphy & Lambiase 1997 State Route 17m Goshen, NY 10924

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