Case 1:10-cv-08858-RMB-MHD Document 153 Filed 09/13/12 Page 1 of 3
DISERIO MARTIN O'CONNOR & CASTIGLIONI LLP
35 MASON STREET
GREENWICH, CT 06830
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MATIHEW C. WAGNER
Admitted in CT, l'.J1', MA and DC ELECTRONICALLY FILED
CT Direct Dial: 203-569-1195
DATE FILED: ",.-.teo\"L
Reply to: Stamford Office
stt) i 32012 TI
RICHARD M, BERMAN
•••••••: - - .~----------:- ..0
Via Federal Express
Honorable Richard M. Berman
United States District Court
Southern District of New York
40 Centre Street, Courtroom 706
New York, NY 10007
12 September 2012
Annie Comic Publications, 1m: v. Kent1eth Penders, II a/k/ a Ken Penders
Civil Action No. 10-cv-8858 (IUvfB)
Dear Judge Berman:
This firm represents Plaintiff Archie Comic Publications in the above referenced matter.
This letter is written jointly on behalf of Plaintiff and Defendant Ken Penders, as well as the
mediator assigned to this matter by the Southern District of New York Mediation Program (whose
identity is confidential pursuant to Local Civil Rule 83.9(1)(1». Counsel for Penders and the
mediator have reviewed and approved this letter,
On August 8, 2012 Your Honor referred this matter to the Southern District Alternative
Dispute Resolution Program for mediation, and converted the pretrial conference to a status
conference, which was scheduled for September 10,2012, at 10 AM. D.E. 151. On September 6,
2012, the Court endorsed the parties' letter of September 5, 2012, and continued the status
conference until October 3, 2012. D.E. 152. In their letter to the CQurt requesting adjournment of
the status conference, the parties explained to the Court that mediation had not yet been scheduled
due to the summer holidays of counsel and clients, and coordination with the mediator; counsel for
Penders also notified the Court that he is required to be in Florida for another matter from
September 17, 2012 until September 21,2012.
Last week, upon returning from the Labor Day holiday, and after the Court granted this
adjournment, the parties continued their efforts to schedule mediation, and dates had been proposed
for September 25, 26, 27 or 28 by counsel for Penders. Counsel for Archie was working toward
confirmation of September 28 th (some of these dates are Yom Kippur), but the mediator has now
indicated he has a conflict with the 28th
Case 1:10-cv-08858-RMB-MHD Document 153 Filed 09/13/12 Page 2 of 3
In the meantime, yesterday, on September 11,2012, a "First Mediation Session" was entered
on the docket, and scheduled for next Tuesday, September 18, 2012 at 9:30 a.m. Counsel was not
consulted prior to scheduling of this mediation session for September 18, 2012. Neither counsel nor
the parties are available on September 18; counsel for Penders previously alerted the Court to his
unavailability during this time in the parties' letter to the Court on September 5, 2012 (D.E. 152);
and September 18 is Rosh 11ashanah. Counsel immediately alerted the mediator to the foregoing
and suggested that an extension of time is available under LR 83.9. The mediator then requested
that counsel secure an extension of the scheduling of the First Mediation Session and suggested he is
available the first week of October. Counsel are presently conferring with their clients about the
first week in October.
LR 83.9(g)(1) provides that the mediator shall schedule the first mediation session within
thirty (30) days of the assignment of the mediator by the Mediation Supervisor, but in the event that
the mediation cannot begin within that time, the assigned mediator shall promptly notify the
Mediation Supervisor of the date by which the mediation \\rill begin and the reason for the delay.
Counsel writes this letter at the request of the mediator.
Counsel and the mediator are working diligently to schedule the First Mediation Session, but
this cannot be conducted on September 18, 2012, as has been entered on the docket. Accordingly,
at the request of the mediator and on consent of all parties and counsel, we hereby request that the
Court adjourn the First Mediation Session presently entered on the docket for September 18, 2012,
to a date to be determined, but no later than October 31,2012. Given the foregoing, the parties also
request that the status conference presently scheduled for October 3, 2012, be continued to a new
date in early November at the Court's convenience.
All counsel and the mediator have conferred on the present application, and have consented
to this request.
Pursuant to Your Iionor's Individual Rule 1 (E), the parties provide the following
the original date for the status conference was Septernber 10, 2012; this was continued to
October 3, 2012; the original date of the First ~'fediation Session was entered on the docket
for September 18,2012;
this is the second request to continue the status conference and the first request to continue
the First Mediation Session;
the previous request to continue the status conference was granted (D.E. 152); and this
section is not applicable to the request for adjournment of the First Mediation Session; and
this request with regard to the status conference and mediation is on consent of all parties to
the action and the assigned mediator.
Accordingly, the parties and the mediator hereby jointly request that the Court adjourn the
First Mediation Session presently entered on the docket for September 18, 2012 (D.E. dated
September 11,2012) to a date to be determined, but no later than October 31,2012, and continue
the status conference presently scheduled for October 3, 2012, to a new date in early November at
the Court's convenience.
Case 1:10-cv-08858-RMB-MHD Document 153 Filed 09/13/12 Page 3 of 3
Thank you for your consideration.
Verv truly yours ,
l\fatthew C. Wagner
Phil Daman, counsel for Defendant, ,-ia email
Assigned Mediator, via email
Mediation Supcn-isor, via email
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SO ORDERED: ~ ~
Date: ,1\,IZoIl. ~~ II. ~.,
Richart'! M. Berman, U.S.OJ.