32 responses

  1. Wow—what a showdown.

    I really hope the request is granted—not for the sake of the stop-and-frisk case or even Judge Scheindlin’s “honor,” but to undo some of the reputational damage the Second Circuit wrought upon the federal judiciary with a ruling that seemed all but political.

    Let’s leave politics out of the federal courts—New York State already has enough demons of its own in its judicial system.

  2. Brilliant move by some brilliant First Amendment lawyers It will necessarily (and justifiably) embarrass the Second Circuit panel, whatever they decide to do in response.

  3. In my own experience, not going gentle into that good night has been an expensive hobby.

    Sometimes at night, I fantasize about a judge actually HEARING my grievances. It must be nice to be a first-class citizen in this Third World banana republic.

    Is counsel proceeding pro bono? I’d like to know who is picking up the tab.

  4. I don’t think there is much question that the CA2 went over the line. Problem is, the Courts of Appeal LIVE over the line, because SCOTUS has abdicated its constitutional responsibility to police them. As Justice Wilson explained, every rational judicial system has a supreme tribunal policing inferior courts ALL of the time, as opposed to whenever they damn well feel like it.

  5. “Reputational damage”? Last time I was in Australia, kangaroos took issue with me for calling ours a kangaroo court system–they felt that it was defamation, and I was constrained to agree.

    And in case you are wondering, I let them play through…

  6. Just a point on the related case rule:

    Attached to the complete filing by the District Judge to the Second Circuit is Local Rule 13 regarding the transfer of related cases and a transcript of the December 21, 2007 hearing cited by the Second Circuit. The local rule provides that a transfer is only appropriate if there is a case “then pending” before the same District Court Judge. L.R. 13 (c)(ii). As I understand the record, the earlier stop and frisk case was Daniels, which had been closed in June 2005, long before the later Floyd case was filed on January 31, 2008. (Of course there was a contempt motion filed in Daniels after that date and a hearing held on December 21, 2007, but even at that hearing the the District Judge acknowledged that the case had been already been terminated and closed on the docket, but that she was still “supervising this case” and that her “supervision runs out on December 31, ’07.” (12/21/07 Transcript of Hearing at 21). Thus, even under the District Court’s view of her “supervision,” that supervision ended before Floyd was filed.) As such, there was no “then pending” case “relating” to Floyd that would permit a transfer. Perhaps this is part of the Second Circuit’s rationale for finding that the District Court’s application of the related case rule was improper.

    In addition, the REPORT AND RECOMMENDATIONS OF THE SOUTHERN DISTRICT OF NEW YORK CIVIL JUSTICE REFORM ACT ADVISORY GROUP, dated November 1, 1991 (1991 WL 525131), which discusses, among other things, the related case rule, highlights that the “related-case rule is a very effective cost and delay reduction mechanism.” The report further notes that “… subsequently filed related cases are assigned to the judge handling the originally filed matter. Thus, the assigned judge has the opportunity to consider a related case at the same time as one previously assigned….” This further evidences that the scope of the related case assignment requires a current “then pending” case before the case may be transferred as related.

  7. John,

    Thanks very much. Your point is very important.

    Due to the press of an ongoing civil jury trial, I have not had time to look at your citation or at the entirety of the local rules of SDNY at the applicable times. While I have no reason to doubt your analysis, I also can’t confirm it.

    “Related” case local rules are obviously different from jurisdiction to jurisdiction. Here is our local rule defining a “related” civil case: “Open or closed civil cases are related when they involve some or all of the same issues of fact, arise out of the same transaction, or involve the validity or infringement of the same patent.” NeGenR 1.4(a)(4)(C)(iii). If our local rule were followed in New York, there is no doubt that the cases would have been considered related.

    Among other deficiencies, the Second Circuit’s opinion fails even to address the specifics of their concern on “relatedness.” Thus, while you may be right in your reading and application of the “relatedness” rule in SDNY, and Judge Scheindlin may have been incorrect, we can’t discern that from the Second Circuit’s opinion. If the Court of Appeals judges are going to take a swing at her for misreading and misapplying a local rule, they owed Judge S. far more.

    Again, thanks for making a very important point. All the best.

    RGK

  8. John,

    Note that SDNY Local Rule 1.6(a) at p. 13, that appears to have been effective during the relevant time frame, requires lawyers to “bring promptly to the attention of the Court all facts which said attorney believes are relevant to a determination that said case and one or more pending civil cases or criminal cases should be heard by the same Judge, in order to avoid unnecessary duplication of effort. As soon as the Attorney becomes aware of such relationship, said attorney shall notify the Judges to whom the cases have been assigned.” The failure to comply with this rule subjects the lawyer to the possibility that costs will be assessed against the lawyer. SDNY Local Rule 1.6(b)

    When the cases that were ultimately appealed to the Second Circuit were filed or at any time thereafter, do you know if any of the lawyers filed certifications under this rule? If so, what did they certify?

    All the best.

    RGK

  9. John,

    Do you know whether any of the “stop and frisk” cases handled by Judge S. involved settlement agreement(s) where the parties and the judge had a reasonable expectation that the judge retained jurisdiction to enforce the provisions of the settlement agreement?

    All the best.

    RGK

  10. Judge,

    As to your first query: I do not have any information as to what may have been filed by the attorneys under Local Rule 1.6, but note that that L.R. 1.6 also refers to a “pending” case and, as I suggest, there was no related “pending” case so there may not have been any L.R. 1.6 obligation.

    As for your second query: The stipulation of settlement in Daniels is available at http://ccrjustice.org/files/Daniels_StipulationOfSettlement_12_03_0.pdf.
    Of particular note, in Section K addressing the “Effect of the Settlement Stipulation on the Pending Action,” it was stipulated (and apparently accepted by the District Court) that “Upon termination of this Stipulation on December 31, 2007, the Court shall retain no further jurisdiction over this action.” (Stip. K.5 at 13).

    Therefore, although the District Court did retain jurisdiction for a period, as the court correctly stated at the December 21, 2007 hearing, that jurisdiction ended on December 31, 2007, and there was no related “then pending” case after the ball dropped in Times Square that night.

    I agree with you that if this was a basis, even in part, for the Second Circuit’s decision, the court should have been more transparent and indicated as such in its order in fairness to both the District Judge and to the many who are interested in this matter.

    Thanks for including me in this interesting dialogue.

  11. John,

    Thanks a bunch. That is helpful.

    I am trying to read stuff while in a jury trial. I may have more later.

    All the best.

    RGK

  12. John,

    Just thinkin’ (which is dangerous when it is me):

    The judge did make it clear that she would extend the protective order if necessary so plaintiffs would have the data for use in the new “related” suit. If that is so, one could make an argument that the earlier case was “pending” because the protective order, had, in effect, been extended. Later, I will try to access the dockets to see about whether any certifications had been filed.

    All the best.

    RGK

  13. J. RGK:

    The docket indicates the following cases are considered “related cases:”

    1:99-cv-01695-SAS-HBP
    1:08-cv-04303-SAS
    1:10-cv-05672-SAS
    1:10-cv-00699-SAS-HBP
    1:11-cv-04121-SAS

    Docket #3 is: CASE REFERRED TO Judge Shira A. Scheindlin as possibly related to 1:99-cv-1695. (mbe) (Entered: 02/01/2008)
    Docket #6 is: CASE ACCEPTED AS RELATED. Create association to 1:99-cv-01695-SAS-HBP. Notice of Assignment to follow. (mbe) (Entered: 02/21/2008)
    Docket #7 is: NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. (mbe) (Entered: 02/21/2008)

  14. Jeff,

    Thank you.

    I have done some additional looking. I am still formulating my thoughts about the technical interpretation of the “related” case rule in SDNY.

    For PACER or CM/ECF searches: Floyd v. City of New York appears at No. 08CV1034, Ligon v. City of New York appears at No. 12CV2274 and Daniels v. City of New York appears at 99CV1695. Thus, if others want to do their own research, they might wish to concentrate on these dockets.

    My preliminary assessment is that Daniels was technically pending when Floyd was filed because Judge S. had decided in the December hearing in Daniels, without objection, that the protective order in Daniels remained viable through the end of January 2008 such that the plaintiffs could use the data subject to the protective order in Daniels to prepare the Floyd complaint. Floyd was filed at the end of January 2008. On the same date it was filed, Judge S. issued an order in Floyd essentially reaffirming the position she had stated in Daniels regarding the viability of the Daniels protective order insofar as the plaintiffs were concerned. On the same date, the Clerk referred the Floyd case to Judge S. as possibly related to Daniels. No one appears to have objected.

    All the best.

  15. John,

    For PACER or CM/ECF searches: Floyd v. City of New York appears at No. 08CV1034, Ligon v. City of New York appears at No. 12CV2274 and Daniels v. City of New York appears at 99CV1695. Thus, if others want to do their own research, they might wish to concentrate on these dockets.

    My preliminary assessment is that Daniels was technically pending when Floyd was filed because Judge S. had decided in the December hearing in Daniels, without objection, that the protective order in Daniels remained viable through the end of January 2008 such that the plaintiffs could use the data subject to the protective order in Daniels to prepare the Floyd complaint. Floyd was filed at the end of January 2008. While Daniels was otherwise done, the Daniels protective order remained viable. On the same date Floyd was filed, Judge S. issued an order in Floyd essentially reaffirming the position she had stated in Daniels regarding the viability of the Daniels protective order insofar as the plaintiffs were concerned. On the same date, the Clerk referred the Floyd case to Judge S. as possibly related to Daniels. No one appears to have objected.

    All the best.

    RGK

  16. Judge,

    Even assuming the District Court’s statement that it viewed the protective order as continuing for another 30 days after the Court’s jurisdiction over the action ended on December 31, 2007, was correct (a position that is subject to debate), the District Court’s technical pendency ended on January 30, 2008. Indeed, the District Court acknowledged that was the end date at the December 21, 2007 hearing. (See 12/21/07 Transcript of Hearing at 20, 21 & 26). The Floyd case was dated and filed on January 31, 2008, which was one day after the technical pendency would have ended.

    Relatedly (no pun intended), it may be this action by the District Court, (1) extending the protective order so that a closed case might be considered technically “pending” to allow for a later filed case to be deemed related and transferred to the District Court; and (2) then suggesting to the plaintiff that it file the case within that extended technical pendency so that it would be accepted as related by the District Court, was too much for the Second Circuit to ignore.

    Best regards.

  17. John,

    Your analysis is a fair way of looking at the technical question of “relatedness.” But also consider the following countervailing interpretation of that technical question:

    1. The District Court did not extend the protective order as it was written by the parties to terminate 30 days after the underlying settlement agreement expired. The parties in Daniels obviously wanted Judge S. to maintain jurisdiction to enforce the protective order in January.

    2. As I read the transcript of the Daniels hearing, the plaintiffs withdraw their motion in Daniels with the explicit understanding that under the protective order they could commence a separate suit by the “end of January.” As the hearing drew to a conclusion, the plaintiffs’ lawyer specifically stated that he understood that “end of January” was the deadline and the judge appeared to agree. The City did not disagree. As a consequence, the plaintiffs withdrew their motion challenging the City’s actions. Here is the exchange I am referring to:

    MR. MOORE: Judge, after consulting with my
    colleagues, I think we have come to a position that if we
    have — if the Court is willing to permit us to hold the data
    that we have until the end of January
    , 30 days after the
    expiration of this agreement, we would be willing to withdraw
    this motion at this point. And engage in this process of
    bringing another lawsuit or not.
    THE COURT:
    I think I said it many times on this
    record, that that’s my interpretation of this agreement.
    And
    that is the way I am ruling, that’s what it said, 30 days after
    the termination of this case, which to me it finally terminates, termination December 31, ’07, they remain
    confidential.

    . . .

    THE COURT: There you go, that’s public. You can use
    that. And as I said before, I would accept it as a related
    case, which the plaintiff has the power to designate.
    I think this current motion is withdrawn. Thank you.

    ALL COUNSEL: Thank you, your Honor.

    Hearing transcript, at pp. 42-43 (emphasis added).

    3. During the Daniels hearing, had the City argued that the “end of January” 2008 was not the deadline for filing a related case, I might be more inclined to agree with you that the Floyd plaintiffs’ blew the deadline by one day.

    But, let’s assume you are right and the cases were not technically related because plaintiffs’ blew the filing date by one day. Given the failure of the City to object to “relatedness” in Daniels or in Floyd, if I were a Circuit judge, I would not jump to the conclusion that the trial judge evidenced a lack of impartiality. In other words, I find nothing about how Judge S. handled this extremely technical issue that, objectively considered, “was too much for the Second Circuit to ignore.”

    I sincerely thank you for your comments and hard work. You have significantly advanced my understanding of what happened, and I am very appreciative. All the best.

    RGK

  18. (By the way, I am not the “John” with no last name.)

    I’m a bit confused why the technical question of pendency is being considered so carefully. Does it truly matter?

    SDNY’s LR13 starts off saying a case “… will be transferred for consolidation or coordinated pretrial proceedings when the interests of justice and efficiency will be served,” and that is “[s]ubject to the limitations set forth below.” The limitations below do not proscribe the transfer of non-pending cases. They are silent on that point.

    To be more specific, in John’s 11:10 post he writes:
    The local rule provides that a transfer is only appropriate if there is a case ‘then pending’ before the same District Court Judge. L.R. 13 (c)(ii).

    I don’t see support for that claim. The Rule doesn’t discuss non-pending cases in the “limitations below,” but it doesn’t proscribe them either.

    And, as Ms. Macfarlane’s article points out (p. 10), cases can also be transferred via Local Rule 14, “Any judge, upon written advice to the assignment committee, may transfer directly any case or any part of any case on that judge’s docket to any consenting judge except where Rule 16 applies.” (Rule 16 is about disqualification from a mistrial former trial of the same case.)

    Ms. Macfarlane also suggests that the letter of the rule may not be strictly followed, i.e. that actual SDNY practice is slightly different from the rule.

    Is there a reason why technical pendency is actually important here?

  19. It’s not really clear that the applicable local rule required the low-numbered case to be open for the judge to accept it as related. Subsection (a) of E/SDNY LR 13 for the Division of Business Among District Judges defines relatedness for the purpose of case assignment. It says:

    “a civil case . . . will be deemed related to one or more other civil cases . . . and will be transferred for consolidation or coordinated pretrial proceedings when the interests of justice and efficiency will be served. In determining relatedness, a judge will consider whether

    (i) a substantial saving of judicial resources would result; or

    (ii) the just efficient and economical conduct of the litigations would be advanced; or

    (iii) the convenience of the parties or witnesses would be served.

    Without intending to limit the criteria considered in determining relatedness, a congruence of
    parties or witnesses or the likelihood of a consolidated or joint trial or joint pre-trial discovery may be deemed relevant.”

    There is nothing in that standard requiring a case to be active or “pending.”

    True, subsection (c)(ii), titled “Assignment of cases and proceedings that are designated as related,” says:

    “A case designated as related shall be forwarded to the judge before whom the earlier filed case is then pending who has the sole discretion to accept or reject the case. Cases rejected by the judge as not related shall be assigned by random selection.”

    But the rule most naturally reads like (c)(ii) is directory to the clerk or whoever runs the SDNY assignment wheel, telling them where to “forward” a case that an attorney has marked as related under Civil LR 1.6. (Most large district courts have a rule or general order to this effect. See, e.g., C.D. Cal. Gen. Ord. 08-05 § 5.2 (“Processing Proposed Transfer Order”).) If that’s the case, “pending” does not really mean much more than “the district judge assigned to the low-numbered case.” The defining standard of what Judge S “will consider” “in determining relatedness”–which was left to her “sole discretion”–would seem to be subsection (a), which does not reflect any requirement that the low numbered case be currently open.

    At minimum, it’s a reasonable way for a district judge to read her own court’s rule, which is generally afforded a fair degree of deference by the courts of appeal. See 12 Wright, Miller & Marcus, Federal Practice & Procedure § 3153 n.82 (collecting cases).

  20. Other John,

    Please see SDNY Local Rule 1.6(a) at p. 13, that appears to have been effective during the relevant time frame, requires lawyers to “bring promptly to the attention of the Court all facts which said attorney believes are relevant to a determination that said case and one or more pending civil cases or criminal cases should be heard by the same Judge, in order to avoid unnecessary duplication of effort. As soon as the Attorney becomes aware of such relationship, said attorney shall notify the Judges to whom the cases have been assigned.” The failure to comply with this rule subjects the lawyer to the possibility that costs will be assessed against the lawyer. SDNY Local Rule 1.6(b) (emphasis added).

    Rule 1.6(a) appears to define “relatedness” in terms of comparing a new case with a pending case. Arguably, the “transfer” rule is not even applicable if Rule 1.6(a) is the rule of decision.

    All the best.

    RGK

  21. Mike,

    Good analysis. Two observations:

    1. Additionally, please see SDNY Local Rule 1.6(a) at p. 13, that appears to have been effective during the relevant time frame, and that requires lawyers to “bring promptly to the attention of the Court all facts which said attorney believes are relevant to a determination that said case and one or more pending civil cases or criminal cases should be heard by the same Judge, in order to avoid unnecessary duplication of effort. As soon as the Attorney becomes aware of such relationship, said attorney shall notify the Judges to whom the cases have been assigned.” The failure to comply with this rule subjects the lawyer to the possibility that costs will be assessed against the lawyer. SDNY Local Rule 1.6(b) (emphasis added). Rule 1.6(a) appears to define “relatedness” in terms of comparing a new case with a pending case for purposes of avoiding wasteful duplication of effort. Arguably, the “transfer” rule is not even applicable if Rule 1.6(a) is the rule of decision. If, therefore, Daniels was “pending” when Floyd was filed, the judge’s determination that the cases “should be heard by the same Judge, in order to avoid duplication of effort” is obviously correct and implicitly agreed to by all sides in the December, 2007 hearing.

    2. Set everything else aside. Your last point is the critical one. Judge S.’s reading of her local rules was reasonable and subject to deference particularly given the failure of any party to raise “relatedness” concerns.

    All the best.

    RGK

  22. Judge Kopf – I have read the comments but have not had time to study the SDNY Local Rules. I am writing to express my appreciation at your effort to learn the facts of this case and what the local rules provide. I think that, because you are in Nebraska and not New York, your willingness to provide an even-handed discussion of this highly-charged situation is invaluable. I think this is another excellent example of your blog giving a unique and invaluable educational perspective on a very current and debated topic. Elaine Mittleman

  23. FYI, this afternoon at 1:46pm Eastern, the Ligon v. the City of New York plaintiff-appellees (related case being heard in tandem with Floyd v. the City of New York by Judge Scheindlin) moved the Second Circuit for reconsideration en banc “That en banc court direct — either by full court or a new panel — reconsideration with full and fair process of panel’s sua sponte determination that District Court Judge engaged in misconduct.”

    Here is the filing and declaration in support.

    It says pretty much what you would expect.

    Also, the T-1080 cover page indicates that the City of New York (defendant-appellants) do oppose the motion and intend to file a response. Three minutes later the City’s Corporation Counsel (Michael A. Cardozo) filed an appearance in the case. (Ligon is docket 13-3123 at ecf.ca2).

  24. As someone unfamiliar with federal civil procedure, does this mean that the ACLU attorney called the Corporation Counsel’s office and asked them if they’d oppose it?

  25. Peter H: Yes. Local Rule 27.1 in the Second Circuit of which 27.1(b) reads:

    (b) Notification; Disclosure of Opponent’s Position. In a case in which all parties are represented by counsel, a motion must state: (1) that the movant has notified opposing counsel, or why the movant was unable to do so; (2) opposing counsel’s position on the relief requested; and (3) whether opposing counsel intends to file a response to the motion.

  26. Peter H.,

    Probably, a call or letter or e-mail with a copy or summary of the motion would have been sent to opposing counsel with a request to state by return whether the motion was opposed. All the best.

    RGK

  27. More keeps happening:
    • I understand the Floyd plaintiffs (Darius Charney, et al) on Monday morning intend to file a similar motion to the Ligon plaintiffs’ motion for en banc reconsideration.
    • The City of New York just filed (12:09am Eastern) a mammoth 471-page (including exhibits) motion for “Modification of the Stay Order dated Oct. 31, 2013 To The Extent of Vacating the District Court’s Orders Dated Aug. 12, 2013” in Floyd. That is docket 265, here. I guess it’s only 22 pages of motion/memorandum, though.
    • Among other things, the City proposes a briefing schedule allowing 2 business days for a response and another 2 for a reply brief.
    • The City writes: “The firestorm surrounding this Court’s Corrected Mandate – including the District Judge’s own recent responsive public comments – confirm that the Orders should be vacated, just as the partiality of the District Judge who made those rulings is being reasonably questioned.
    • Though it’s not indicated on the cover sheet (old version), the City advises that the the Floyd plaintiffs intend to file a response.
    • There’s also a similarly-sized filing in Ligon that I’ve not looked at.

  28. John,

    Thanks very much. The response by the City is fascinating both from a substantive point of view and tactically. Anyway, I really appreciate that you took the time to keep us updated.

    All the best.

    RGK

  29. Pingback: Judge Scheindlin and the Second Circuit to date. | The Researching Paralegal

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