BAEC Bulletin | Fall 2021 | 37
Western District Case Notes
Kevin M. Hogan and Sean C. McPhee
Notice of Motion Requirement Under Local Civil Rule 7(a)(1) In Kujawski v. Liberty Mut. Ins. Co. , 19-cv-00603-WMS (Mar. 30, 2021)—an
action for negligent infliction of emotion distress, negligent hiring, and breach of an implied contract—defendant filed a “Motion to Dismiss,” consisting of a single document containing a one-paragraph summary of the relief requested and attaching a memorandum of law and an exhibit. Plaintiff moved to “strike” defendant’s motion, arguing it should be “summarily denied” because defendant failed to file a notice of motion. Observing that a notice of motion (stating the relief sought, the grounds for the request, the papers submitted in support, the return date (if known), and whether the movant intends to file a reply) “is required for all motions” under Local Civil Rule 7(a)(1), the Court found that defendant’s failure to provide the information required by the Rule resulted in prejudice to plaintiff. Therefore, to “encourage compliance” with the Court’s Local Civil Rules, plaintiff ’s motion was granted. But, because doing so was a “drastic remedy,” the Court provided defendant with an opportunity to “properly renew[]” its motion within eight days. E-filing Attempted During Scheduled Maintenance of CM/ECF Rendered Untimely In Nelroy Drugs, Inc. v. Rochester Drug Co-operative, Inc ., No. 20-cv-06946-FPG (Apr. 19, 2021), appellants sought to appeal the Bankruptcy Court’s denial of their motion for reconsideration following the denial of their motion for relief from the automatic stay. The debtor moved to dismiss the appeal, claiming it was untimely because appellants’ motion for reconsideration was itself untimely. As a result, the debtor contended that the Court lacked subject matter jurisdiction to entertain the appeal. Appellants conceded that their motion for reconsideration was filed 17 days—rather than 14 days—after their initial motion was denied, but blamed the delay on “a technical failure of the [Bankruptcy Court’s] e-filing system.” The Court rejected that argument, noting that appellants’ inability to timely file their motion for reconsideration occurred as a result of scheduled maintenance to the CM/ECF system, and that appellants were not only made aware of the upcoming system outage, but also had advance notice to take proper steps to ensure that their filing was completed prior to the scheduled outage. The Court also noted that, although appellants attempted to email their motion to the Bankruptcy Court during the outage on the evening of the final day of their deadline, their email was sent to the Bankruptcy Court for the Eastern District of New York, rather than the Western District of New York. Thus, the proper Bankruptcy Court never received the filing by the deadline. The Court then observed that appellants’ predicament was the result of “multiple careless errors,” and cautioned that when parties “wait until the last minute to comply with a deadline, they are playing with fire.” Finally, the Court remarked that “if the Rules are to mean anything . . . courts must enforce them, even if it means that cases must sometimes be finally determined on procedural grounds rather than on their substantive merits,” and dismissed the appeal because the motion for reconsideration giving rise to the appeal was untimely. Implied Covenant of Good Faith and Fair Dealing In Khan v. Laninver USA, Inc. , 18-cv-00561-JLS-LGF (Mar. 31, 2021), plaintiff asserted a claim against defendant for breach of an implied covenant of good faith and fair dealing in connection with the parties’ contract for the purchase/sale of plaintiff ’s company. Defendant moved to dismiss, challenging the sufficiency of plaintiff ’s allegations.The Court first recognized that, under New York law, a covenant of good faith and fair dealing is implied in all contracts, and neither party shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Thus, to state a cause of action for breach of an implied covenant of good faith and fair dealing, the plaintiff must allege facts which tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff. The Court then found that plaintiff sufficiently alleged that defendant did not adhere to that implied obligation because, accepting plaintiff ’s allegations as true, defendant prevented plaintiff from obtaining a bonus payout provided for in the contract. Finally, the Court remarked that it “remains to be seen whether plaintiff can substantiate his bad-faith theory, but at this stage he has sufficiently pleaded it to survive a motion to dismiss and proceed to discovery.” Accordingly, defendant’s motion was denied. Products Liability In Thomas v. ConAgra Foods, Inc. , et al., 20-cv-6239-EAW (Mar. 29, 2021), plaintiff brought a product liability action against defendants for injuries she suffered when a cooking spray can exploded during use. Plaintiff ’s complaint asserted fifteen causes of action against various defendants, including claims of design defect, manufacturing defect, failure to warn, a “non-specific defect,” and negligence. Defendants moved to dismiss the design defect, failure to warn, non-specific defect, and negligence claims. Although at the trial stage design defect claims and manufacturing defect claims are often mutually exclusive, the Court held that the plaintiff was “fully entitled” to plead both theories in the alternative at the pleadings stage. The Court also found that the specific warnings plaintiff alleged should have been provided were sufficient to put the defendants on notice of the information that plaintiff relies on for her failure to warn claim. Regarding the non-specific defect claim, the Court noted that a plaintiff with a product liability claim in New York may prevail by demonstrating that the product did not perform as intended and by excluding all other causes for the product’s failure, even if she cannot prove the specific defect. The Court, however, held that a claim for non-specific defect was merely an Continued on Page 38
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