Winston & Strawn LLP v. Federal Deposit Insurance Corporation , 841 F. Supp. 2d 225 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
WINSTON & STRAWN LLP, et tll., )
)
Plaintiffs, )
)
v. )
) civil No. 06-1120 (RcL/JMF)
FEDERAL DEPOSIT INSURANCE )
CORPORATION, AS RECEIVER FOR )
THE BENJ. FRANKLIN FS&LA, ) F I l_ E D
PORTLAND, OREGON, )
) .lAN 2 7 ZlllZ
Defendant' ) Clerl<, U.S. District & Bankruptcy
) Courts forthe District of Columbia
MEMORANDUM AND ORDER
Before the Court is plaintiff D0n S. Willner & Associates, P.C.’s Motion to Expedite
Consideration [104] of its claim for attorney’s fees in connection with its role in obtaining a
settlement of a tax claim lodged by the Intemal Revenue Service against the Federal Deposit
Insurance Corporation ("FDIC"), as receiver for the Benj. Franklin Federal and Loan Association
of Portland, Oregon ("Benj. Franklin"). On December 3, 2010, Magistrate Judge John Facciola
issued a Report and Recommendation [85] in which he recommended an award of $416,999.96.
Magistrate Judge Facciola then vacated that initial Report and Recommendation and issued a
Revised Report and Recommendation [96] in which he recommended an award of $166,175.39.
Both parties filed objections to the initial report [86], [87], responses to those objections [88]
[89], and objections to the revised report [97], [98]; the defendant further filed a response [100]
to the plaintiffs objection to the revised report. Upon consideration of the motion, the reports,
the objections and responses thereto, the applicable law, and the entire record herein, the Court
will award the plaintiff attomey’s fees in the amount of $150,062.25. Because the Court will
award judgment in this case, it will deny the motion to expedite consideration as moot.
I. BACKGROUND
In the midst of the savings and loans crisis of the 1980s and 19905, Congress passed the
Financial institutions Reforni, Recovery, and Enforcement Act of 1989. The Act in part
prevented federal regulators from in most cases counting supervisory goodwill toward
capitalization requirements. This change rendered Benj. Franklin unable to satisfy minimum
regulatory capitalization requirements, and federal regulators seized Benj. Frariklin in February,
l990. The law firm Winston & Strawn, working with the plaintiff, filed a derivative and class
action law suit in the United States Court of Federal Claims as a result. That Court granted Benj.
Franklin’s motion for summary judgment on Decernber 22, 1997, and ordered a trial on
damages. On or about the same time, the Internal Revenue Service ("IRS") asserted a claim
against the defendant in its capacity as the Benj. Franklin receiver for $l.2 billion in alleged
taxes and penalties accrued during the failed thrift’s receivership. On June 6, 2002, the Court of
Federal Claims entered judgment in favor of the Benj. Frariklin receivership of $34,672,500,
which following a motion for reconsideration the Court increased to about $52 million. Shortly
after the Court entered judgment in that case, the plaintiff filed a separate case in the United
States District Court for the District of Oregon, obtaining a temporary restraining order
prohibiting the defendant from satisfying the IRS’s claim against the defendant as receiver. The
IRS then sued the defendant’in this district court to recover the taxes and penalties allegedly
owed by Benj. Franklin in United States of America v. Federal Deposit Insurance Corporation,
Civil No. 02-1427. The defendant, the Department of Justice on behalf of the IRS, and the
shareholder-plaintiffs in the derivative action reached a settlement of the IRS’S suit, negotiated in
part by the plaintiff, that reduced the lRS’s claim to $50 million. Judge Emmet Sullivan issued
an order in that case [33] approving the settlement, in which the defendant also agreed to pay
counsel reasonable attomey’s fees.l
The plaintiff recouped $101,739.90 in attomey’s fees from the Benj. Franklin
shareholders and submitted a fee petition with invoices to the FDIC for additional attomey’s
fees. The plaintiff requested a base amount of $541,327.50, times a multiplier for perforrnance,
minus the amount paid by the shareholders. The plaintiff also requested payment for other
expenses. The FDIC approved the request in part and denied it in part on May 19, 2006. The
FDIC calculated a reasonable fee based on 842.35 hours of work, billed at $250 per hour, for a
total of $210,587.50, minus the amount paid by the shareholders. lt issued a check to the
defendant for $122,731.44, inclusive of that fee and approved costs. The plaintiff on July 7,
2006 filed a complaint in D0n S. Wz'llner & Associates, P.C. v. Federal Deposit Insurance
Corporation, Civil No. 06-1227, seeking a total judgment of $782,110.24 based on a calculation
of 2 percent of the receivership surplus of 344 million, minus the amount paid by the
shareholders. The plaintiffs case was later consolidated with the instant case, which Winston &
Strawn initiated as lead plaintiff on October 3, 2006.
The plaintiffs in the consolidated case all moved for summary judgment, as did the
defendant. Judge Sullivan issued a separate memorandum [31] and order [30] on July l3, 2007
denying each motion. As to the plaintiffs’ motions, Judge Sullivan determined that reasonable
attomey’s fees should not be calculated based on a percentage of the remaining receivership
l The letter memorializing the settlement, attached to Judge Sullivan’s order approving that settlement, does not
make explicit reference to attomey’s fees, However, the notice sent to shareholders, of which a proposed version
appears as Exhibit 1 to the FDIC’s motion for a fairness hearing in that case [30], stipulates that the "FDIC also has
agreed to distribute an amount representing the reasonable fees and expenses of the shareholders’ attomeys and
consultants in connection with such persons’ work to reduce the $l .2 billion tax liability alleged by the IRS down to
the $50 million settlement amount." The defendant does not contest that it owes reasonable attomey’s fees.
surplus. Following those motions, Judge Sullivan first referred the dispute to mediation by order
[36] on August l5, 2007. Following unsuccessful mediation, the plaintiff filed a motion for
summary judgment [48] on June 23, 2008. The parties at this stage in the litigation argued
principally over the appropriate hourly rate for work done by Mr. Willner personally, whether to
apply a multiplier for success, and whether the FDIC properly reduced 186.35 hours from
Willner’s billed hours. Judge Sullivan denied the plaintiffs motion without prejudice by
separate order [54] and memorandum [55] on March 3l, 2009 and referred the matter to
Magistrate Judge Facciola by order [56] on April 2, 2009 for a Report and Recommendation.
Magistrate Judge Facciola entered an order [63] on July 30, 2009, in part requiring the parties to
provide supplemental briefing as to why the reasonable rate for Don S. Willner (the namesake of
the plaintiff firm) should not be calculated on the basis of the La/jfey Matrix, see Lajj"ey v.
Northwest Az``rlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev ’a’ on other grounds, 746 F.2d 4(D.C. Cir. 1984), as modified by Save Oar Cumberland Mountaz``ns, Inc. v. Hodel, 857 F.2d l5l6,
1524-25 (D.C. Cir. 1988); Lajj’ey Matrix - 2003-2012, available at
http://wvvw.justice.gov/usao/dc/divisions/civil_Laffey_Matrix_2003-20 l 2 .pdf. The parties
provided a joint stipulation [76] agreeing to the use of La]j‘ey rates to calculate the reasonable fee
for Mr. Willner.
Magistrate Judge Facciola issued his first Report and Recommendation on December 3,
2010, recommending a total award to the plaintiff of $416,999.96. Magistrate Judge Facciola
then issued an order [95] on March ll, 2011 discussing his recommendation in the wake of the
objections raised by the parties. He noted the FDIC’s argument that the plaintiff must have been
reimbursed already for some of the costs sought based on accounting irregularities in those
claims. Magistrate Judge Facciola therefore ordered clarification from the plaintiff The docket
does not reflect a responsive submission from the plaintiff. Magistrate Judge Facciola vacated
his prior recommendation and on April 12, 2011 issued his Revised Report and
Recommendation. The revised recommendation differs from the initial recommendation in three
respects. First, Magistrate Judge Facciola adjusted his recommendation for reimbursement of
services provided by bookkeeper Katherine Kelley upward from $700 to $l,200, based on what
Magistrate Judge Facciola believed to be a typographical error in the plaintiffs submissions.
Second, Magistrate Judge Facciola adjusted his recommendation for reimbursement of costs
downward from $41,941.21 to $15,141.98, based on the inconsistencies noted in his March 11,
2011 order and the plaintiffs failure to respond to that order. Finally, and most significantly,
Magistrate Judge Facciola reduced his recommendation by $224,525.34 to reflect reimbursement
already received by the plaintiff. This figure reflects the shareholders’ payment to the plaintiff of
$101,793.90; the FDIC’s payment to the plaintiff of the $108,793.60 in attorney’s fees to which
the FDIC admits the plaintiff is entitled; and an additional $13,937.84 paid by the FDIC to the
plaintiff for costs to which the FDIC admits the plaintiff is entitled.
The parties filed their objections to the Revised Report and recommendation on April 26,
2011. The case was reassigned to this Court on October ll, 201l. The plaintiff filed his instant
motion to expedite consideration on October 27, 2011.
II. DISCUSSION
A. Magistrate Judge ’s jurisdiction to Issue Revised Report and Recommendation
The plaintiff first argues that once a magistrate judge has issued a Report and
Recommendation, and the parties have lodged their objections to the recommendation, the matter
is essentially on appeal to the district court and the magistrate judge loses jurisdiction over the
case. Thus, the plaintiff argues, Magistrate Judge Facciola lacked authority to vacate his initial
recommendation and issue a revised version, and this Court should disregard the latter report.
The plaintiff cites no authority to support this contention, instead quoting a Ninth Circuit
decision for the proposition that a magistrate judge’s recommendation is simply a
recommendation and has no binding effect. Of course. See Fed R. Civ. P. 72(b)(3). The Court
must conduct de novo review of objections to a magistrate judge’s Report and Recommendation
through independent reference to the record and the applicable law, and is free to conduct de
novo review of the entire Report and Recommendation To the extent that the legal effect of the
revised recommendation is in question, the Court will out of an abundance of caution conduct de
novo review of all issues with respect to which the revised recommendation differs. The Court
would further conduct de novo review of objections lodged to both versions, but finds that the
objections lodged to the revised version encompass all the objections lodged to the initial
version, except insofar as the revised version resolves objections lodged by the defendant to the
initial version.
The Court notes however that ample authority supports the practice of magistrate judges
revising their recommendations when mistakes become apparent. See T acker v. United States,
249 Fed. Appx. 763, 765 n.2 (11th Cir. 2007) (unpublished opinion); cf, e.g., Shampert v.
Mancor Carolina, Inc., 142 Fed. Appx. 786 (4th Cir. 2005) (unpublished opinion) (reviewing
district court order based on revised report and recommendation); In re R.H. Transport Inc., 80
Fed. Appx. 955 (5th Cir. 2003) (unpublished opinion) (same); Business Guides v. Chromatic
Communz'cations Enters., 892 F.3d 802 (9th Cir. l989) (same); Dickinson v. Heinold Securities,
Inc., 661 F.2d 638 (7th Cir. 1981) (same). And any potential infirmity in the practice could be
cured by the Court’s retum of the matter back to Magistrate Judge Facciola for resubmission of
the Revised Report and Recommendation pursuant to Fed. R. Civ. P. 72(b)(3) as an initial Report
and Recommendation issued upon that re-referral_an exercise of form over substance that
would be both unnecessary and contrary to the plaintiffs request for expedited disposition. The
Court will proceed without requiring such a redundant step.
B. Willner’s Objections on the Merits
1 . Payments already made to the plaintiff
The plaintiff objects to Magistrate Judge Facciola’s recommendation that he not be
compensated for $101,793.90 in attomey’s fees already paid by the Benj. Franklin shareholders,
and $108,793.60 in attorney’s fees and $13,937.84 in costs already paid by the defendant. As to
the former payment, the plaintiff makes no actual argument, merely lodging an objection without
relevant analysis. The Court finds no reason why the plaintiff should receive a double recovery
for this amount, and agrees with Magistrate Judge Facciola’s deduction of $101,793.90 from his
revised recommendation. As to the latter payment, the plaintiff asserts that while the FDIC
provided a $3.2 million payment to Mr. Willner as trustee for the Benj. Franklin shareholders’
litigation fund, he did not accept any portion of that payment as personal attomey’s fees. This
assertion is proven irrelevant by the record, in particular Exhibit 3 to the defendant’s response
[94] to Judge Facciola’s order [92], which includes a notice of the FDIC’s partial allowance of
the plaintiffs attorney’s fees claim and a copy of a check issued to the plaintiff for
$122,731.44_the $108,793.60 at issue, plus costs of $13,937.84. The plaintiff does not appear
to dispute the receipt of that check. Accordingly, the Court further agrees with Magistrate Judge
Facciola’s deduction of $108,739.60 and $13,937.84 in his revised recommendation.
2. Maltiplier for success
The plaintiff argues that the calculated Lajfey rates applicable to Mr. Willner’s work
should be enhanced by a multiplier of up to double. He argues that Judge Sullivan found a
double multiplier appropriate in a memorandum [31] disposing of motions for summary
judgment, and that this Court is thus bound by that determination. However, that memorandum
only indicates that "a multiplier may be appropriate," and that "at this juncture . . . the Court
carmot reject this possibility." Judge Sullivan did not conclusively determine that a multiplier
need apply. And at this juncture, it appears a multiplier would be inappropriate. Without
meaning to disparage the plaintiffs success in aiding the defendant’s settlement with the lRS,
the Court sees no reason in this case for an upward departure from the generally applicable
Lajfey rates. Cf Rooths v. District of Columbia, Civil No. 09-492, 2011 U.S. Dist. LEXlS
87659, *12 (D.D.C. Aug. 9, 2011) (noting in context of statutory attomey’s fees that "the rates
contained in the Laffey matrix are typically treated as the highest rates that will be presumed to
be reasonable . . . ."); cf also Perdue v. Kenny A., 130 S. Ct. 1662, 1672-73 (20l0) (also
discussing statutory fees). The Court will thus adopt Magistrate Judge Facciola’s calculation of
the reasonable rates owed for Mr. Willner’s personal legal services as part of the plaintiff law
firin.
3. Fees on fees
The plaintiff seeks compensation for attorney’s fees for time spent preparing the fee
petition, which Magistrate Judge Facciola recommended, and for prosecution of the instant law
suit, which Magistrate Judge Facciola did not. As to the fee petition, Magistrate Judge Facciola
in both reports and recommendations calculated an award for the plaintiff that covered this work,
but with a reduction of $7,474.00 corresponding to 20.2 hours at $370 per hour by Mr. Willner
for which Judge Facciola felt the plaintiff should not be compensated. ln justifying this portion
of the recommendation Judge Facciola cited to Sierra Club v. EPA, 769 F.2d 796, 811 (D.C. Cir.
1985); Lajfey, 746 F.2d at 29; and Environmental Defense Fand v. EPA, 672 F.2d 42, 62 (D.C.
Cir. 1982). The defendant argues that these cases, which involved statutory claims to attomey’s
fees, are inapposite here, where a settlement agreement governs the provision of attomey’s fees.
The defendant interprets that agreement as not permitting recovery for attorney’s fees spent
either preparing the fee petition, or prosecuting a lawsuit to recover attomey’s fees on the
original suit. But the defendant does not point to an express disclaimer of such liability, and in
interpreting the agreement’s reference to "reasonable" fees the Court is guided by the statutory
meaning of reasonable attomey’s fees as discussed in the relevant case law.
The Court agrees that it is appropriate to reimburse the plaintiff for fees incurred in
preparing the petition However, the Court notes that Magistrate Judge Facciola recommended
capping the plaintiffs recovery in this regard to reflect 40 hours of work, but then calculated a
reduction that reflects an allowance of 44 hours of work. The Court will accordingly adjust the
reduction downward to reflect those 4 hours. Further, the defendant argues that the reduction
should be calculated based on hourly rates greater than $370, a rate that prevailed when Mr.
Willner began working on the fee petition but that increased throughout the process. But the
decision to cap the plaintiffs recovery for fees on fees at 40 hours reflects uncertainty about the
extent to which the hours claimed reflect actual substantive legal work. To further reduce the
plaintiffs award by speculating as to when exactly over the course of the fee petition process the
non-reimbursable work occurred seems unnecessary. Accordingly, the Court will follow
Magistrate Judge Facciola’s use of the $370 per hour rate. Adjusting for the extra four hours,
instead of reducing the plaintiffs award by $7,474, the Court will instead reduce the award by
$8,954, corresponding to a total reduction in the recommended award of $1,480.
As to further attomey’s fees for prosecution of the instant litigation following resolution
of the fee petition, the Court determines that the plaintiff is not entitled to such an award. ln
particular, the plaintiff did not make a claim to such fees prior to the issuance of the initial
Report and Recommendation. Further, the defendant avers that the plaintiff failed to respond to
earlier opportunities in mediation in 2007 and before Magistrate Judge Facciola in 2011 to
resolve the case without further litigation. Most significantly, however, the Court sees no reason
to compensate the plaintiff for work spent on various pleadings requesting a vastly inflated
attomey’s fees award, including a request for $1,059,870.00 less the $101,793.60 paid by the
Benj. Franklin shareholders in his supplemental motion for summary judgment [32] and his more
recent, inexplicable position, as embodied in his objections to the Revised Report and
Recommendation that the Court should not reduce his award to reflect attomey’s fees and costs
payments of $101,793.90, $108,793.60 and $13,937.84 that he has already received. Given the
circumstances, the Court determines that rewarding the plaintiff for his prosecution of this
litigation would be unreasonable, and will not increase the award to reflect those fees.
C. FDIC’s Objections
1. Reimbursement for Other Professionals
The defendant objects to Magistrate Judge Facciola’s recommendation that the plaintiff
be reimbursed for payments made to other professionals for legal research. The defendant first
objects to a payment of $3,442.50 to Sarah Drescher-based on 22.95 hours of work and a rate
of $150 per hour, below the applicable Laffey rate_on the grounds that the plaintiff should not
be awarded attorney’s fees for time spent working on the fee petition Because the Court has
already concluded that such costs should be awarded, the Court will not sustain this objection
For the same reason, the Court will not sustain the defendant’s objection to the recommendation
that the plaintiff be reimbursed for $l,20O spent paying Katherine Kelley ( 16 hours of work at
875 per hour) for services related to the fee petition, and agrees with Magistrate Judge Facciola’s
saa sponte increase of that award from $700 to reflect the actual amount paid to her.
The defendant next objects to the recommendation that the plaintiff be reimbursed for
$2,205 spent paying Constance Wold for legal research, for 7 hours at the Lajfey rate of $315 per
hour. The defendant argues that the charges were incurred on April 24 and 25, 2002, nearly
three months before the IRS filed its complaint against the FDIC in the case for which the
plaintiff seeks recovery, and that these charges are irrelevant to that case. The description of
those charges describes that research as regarding "conflicts of interest rules and opinions" with
respect to "expert witness M. Duhl." Mr. Willner also conducted work related to Mr. Duhl in
anticipation of the tax litigation for which the defendant concedes reimbursement is proper. The
defendant further argues that the payments made to the plaintiff by the shareholders and the
FDIC encompass these charges. However, the plaintiffs award is already being offset by those
payments. The job of the Court is to assess the total amount of attorney’s fees and costs to which
the plaintiff is entitled, and then to offset that amount by payments already received by the
plaintiff. Because the Court determines that the plaintiff is entitled to recover on the payments
made to Ms. Wold, the Court will include those charges in the total award, again to be offset by
the gross amount already received by the plaintiff. Finally, the defendant objects to the use of
Laffey rates for reimbursement of Ms. Wold, arguing that the stipulation to use Laffey rates only
applies to work conducted by Mr. Willner personally. The Court agrees that a reasonable fee for
Ms. Wold’s work is the amount actually charged to the plaintiff for that work. lt appearing to the
Court that the plaintiff was only billed $700 for 7 hours work, the Court will only reimburse the
plaintiff for that $700, rather than the recommended $2,205. Accordingly, the Court will
decrease the recommended award by $1,505.
Finally, the defendant objects to reimbursement of Lori DeDobelare at Laffey rates.
However, it appears to the Court that the recommended reimbursement for this work, $130,
reflects the amount actually paid for this work. The Court approves reimbursement of that
amount.
2. Other Expenses
The defendant argues that the plaintiff should not be awarded $l,874 for clerical tasks
performed by Mr. Willner. Magistrate Judge Facciola recommended the award because Mr.
Willner is a solo practitioner, see Thomas v. D.C., Civil No. 03-1791, 2007 WL 891367, at *11-
13 (D.D.C. Mar. 22, 2007), but compensated the plaintiff at Laffey rates for paralegals and law
clerks. The defendant argues that the record demonstrates Mr. Willner’s use of clerical staff at
times, and that in the modem era the ease of delegation makes reimbursement at even paralegal
rates inappropriate. The Court agrees, finding no reason to distinguish law firrns, which
ordinarily carmot recoup expenses for clerical work, and solo practitioners. The Court will thus
decrease the recommended award by $1,874.
The defendant next objects to compensation for 22.8 hours spent by Mr. Willner
managing a Web site used to communicate with shareholders The defendant argues that the
maintenance of a Web site was unnecessary to the settlement negotiations But the Court agrees
with Magistrate Judge Facciola that efforts to communicate with shareholders directly affected
by the terms of the settlement agreement fall within the scope of the settlement negotiations
especially since Judge Sullivan in approving the settlement stressed the importance of
widespread shareholder approval of that settlement. The Court will allow the plaintiff to recover
fees for time spent on the Web site.
The defendant further contests the propriety of reimbursing the plaintiff for 30 out of 40
block-billed hours. Magistrate Judge Facciola found that the plaintiffs invoice with respect to
these 40 hours lacked sufficient detail for a court to assess the reasonableness of reimbursing the
plaintiff for those hours, but then recommended that the award for these hours be reduced by a
mere 25 percent. The Court agrees with the defendant that the plaintiff has failed to meet his
burden of establishing with sufficient detail that these hours relate to the matter for which the
defendant agreed to provide attomey’s fees, see Watkins v. Vance, 328 F. Supp. 2d 23, 26
(D.D.C. 2004), in particular because the charges accrued in 1998 and 1999, well before the
government filed the tax claim against the defendant. The Court will therefore reduce the
recommended award by those 30 hours, which, at a Lajfey rate of $335 per hour, corresponds to
$10,050.
Finally, the defendant objects to reimbursement of travel expenses incurred by Dale H.
Mclntyre and G. Dale Weight on May 1, 2006 to attend the May 2006 fairness hearing, totaling
$l,204.l4. The defendant argues that these shareholders could have viewed the proceedings
remotely and did not need to attend the hearing in person The Court is unaware of any
explanation by the plaintiff as to the necessity of these individuals’ in-person appearance. The
Court will thus disallow reimbursement for the $l,204.14.
D. Differences Between the Initial and Revised Reports and Recommendations
As discussed, the Court will out of abundance of caution review de novo any differences
between the initial and the revised reports and recommendations As to the first difference,
Magistrate Judge Facciola’s reduction of costs to reflect accounting irregularities, the Court
determines that the reduction is proper. As to the second difference, the Court has already
discussed the appropriate compensation for work performed by Katherine Kelley. And as to the
final difference, it is self-evident that the defendant is entitled to a reduction in the award to
reflect payments already made by the defendant and by the Benj. Franklin shareholders
III. CONCLUSION
lnsofar as neither party objects to the revised Report and Recommendation and insofar as
that Report and Recommendation is consistent with the initial Report and Recommendation the
Court adopts the revised Report and Recommendation. The Court has conducted de novo review
of the inconsistent or objected-to portions of the revised Report and Recommendation and
concludes that entry of summary judgment for the plaintiff, sua sponte,z as to the following is
appropriate for the reasons set forth herein.3 The Court determines that the recommended award
should be reduced by a further $l,480 with respect to work by Mr. Willner on the fee petition;
$l,505 for the payment of Ms. Wold; $1,874 for billed clerical work; $10,050 for insufficiently
detailed block billing; and $1,204.14 for travel expenses The Court will thus reduce the
recommended award by a total of $16,113.14. Starting with Magistrate Judge Facciola’s
recommendation of an award of $166,175.39, the Court will award instead a total of
$150,062.25. An appropriate Order accompanies this Memorandum Opinion.
’/¢iliz\i Quc. 5{’““//'/%\:
Dare ROY@‘E C. LAMBERTH
Chief Judge
United States District Court
2 "[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long
as the losing party was on notice that she had to come forward with all of her evidence." Celotrex Corp. v. Catrett,
477 U.S. 317, 326 (1986). Here, both parties were on notice of the significance of lodging objections to the
magistrate judge’s reports and recommendations, and both did so for both reports
3 As noted supra, Judge Sullivan referred this case to Magistrate Judge Facciola following denial of summary
judgment for the plaintiff without prejudice There is accordingly no outstanding motion for summary judgment that
the Court could grant; the only live motion pending before the Court is the motion for expedited consideration
14