Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd.

859 F. Supp. 80 (1994)

MAJOR LEAGUE BASEBALL PROPERTIES, INC., and Los Angeles Dodgers, Inc., Plaintiffs,
v.
SED NON OLET DENARIUS, LTD., d/b/a the Brooklyn Dodger Sports Bar & Restaurant, Bums Inc., d/b/a the Brooklyn Dodger, 9506 Inc., d/b/a the Brooklyn Dodger, David Senatore, Richard Picardi, and Kevin Boyle, Defendants.

No. 90 Civ. 2170 (CBM).

United States District Court, S.D. New York.

May 4, 1994.

JOINT MOTION TO VACATE JUDGMENT

Plaintiffs Major League Baseball Properties, Inc. and Los Angeles Dodgers, Inc. (collectively, "Plaintiffs") and Defendants Sed Non Olet Denarius, Ltd., Bums, Inc., 9506, Inc., Dave Senatore, Richard Picardi, and Kevin F. Boyle (collectively, "Defendants"), by and through their undersigned counsel, hereby jointly move this Court for an order vacating its order and judgment and opinion entered herein. In support thereof the parties jointly state as follows:

1. This Court entered an Order and Judgment in this action on June 8, 1993 (the "Order and Judgment") and an Opinion, dated April 6, 1993 (the "Opinion") (reported at 817 F. Supp. 1103 (S.D.N.Y.1993)).

2. On July 7, 1993, Plaintiffs filed a notice of appeal from the Order and Judgment (the "Appeal").

3. Plaintiffs and Defendants desire to settle and resolve their dispute, including with out limitation the matters that are the subject of the pending Appeal. To that end, the parties entered into an Agreement, dated January 20, 1994 (the "Agreement"), which is conditioned upon, among other things, the filing and granting of this joint motion seeking an order vacating the Order and Judgment and the Opinion.

4. Pursuant to the Agreement, Plaintiffs and Defendants consented to the withdrawal of the Appeal without prejudice to Appellants' right to reinstate the Appeal within twenty (20) days if the District Court declines to vacate the Order and Judgment and Opinion in accordance with this joint motion.

5. The Second Circuit Court of Appeals has repeatedly stated that in this Circuit the practice is to require the District Court to vacate its judgment if the parties reach a settlement conditioned on such a vacatur while the matter is pending on appeal. See, e.g., Reich v. Contractors Welding of W.N.Y. Inc., 996 F.2d 1409, 1411-12 (2d Cir.1993); Nestle Co. v. Chester's Market, Inc., 756 F.2d 280, 283 (2d Cir.1985); see Manufacturers Hanover Trust Co. v. Yanakas, 11 F.3d 381, 384 (2d Cir.1993).

6. In accordance with that practice, the parties jointly request that the District Court grant this motion and vacate the Order and Judgment and the Opinion rendered herein, and dismiss the action.

WHEREFORE, Plaintiffs and Defendants jointly request that the Court enter an order substantially in the form annexed hereto vacating its Order and Judgment and Opinion rendered herein and dismissing the action.

Dated: New York, New York April 14, 1994 Respectfully submitted, WILLKIE FARR & GALLAGHER By: /s/ Robert J. Kheel Robert J. Kheel (RK-6982) Attorney for Plaintiffs FISCHETTI & RUSSO By: /s/ Ronald G. Russo Ronald G. Russo (RR-5339) Attorney for Defendants

ORDER VACATING ORDER AND JUDGMENT AND OPINION AND DISMISSING ACTION

MOTLEY, District Judge.

Plaintiffs Major League Baseball Properties, Inc. and Los Angeles Dodgers, Inc. (collectively, "Plaintiffs") and Defendants Sed Non Olet Denarius, Ltd., Burns, Inc., 9506, Inc., Dave Senatore, Richard Picardi, and Kevin F. Boyle (collectively, "Defendants"), having jointly moved this Court for an order vacating its Order and Judgment, entered June 8, 1993, and Opinion, dated April 6, 1993 (reported at 817 F. Supp. 1103 (S.D.N.Y. 1993)); it is hereby

ORDERED, ADJUDGED and DECREED that the joint motion is granted; and it is further

ORDERED that the Order and Judgment, entered June 8, 1993, and the Opinion, dated April 6, 1993, be and the same hereby are vacated; and it is further

ORDERED that the action is dismissed and it is further

ORDERED that each party is to bear it own costs.

SO ORDERED: