Thursday, November 11, 2010

Gura Calls Out NY AG's Office - And Judge Agrees

In a letter sent Friday and filed on Monday, Alan Gura called out the New York State Attorney General's Office for their attempt to vacate or set aside the previously agreed upon briefing schedule in the Kachalsky case. They asked that the briefing schedule be delayed indefinitely and have proposed no new schedule. Gura said this was "dilatory and lacks any basis."

And it appears from her handwritten comments on the letter that Judge Cathy Seibel agrees with Gura.

In his 3 page letter, Gura reiterated what had happened in previous meetings and the September 7th status conference. He noted that all the parties had agreed to a briefing schedule prior to the September 7th status conference and that the Attorney General's Office had backed out at the last moment. The Attorney General's Office had decided that they didn't want to consent to the plaintiffs filing a motion for summary judgment. Nonetheless, all parties had agreed to a briefing schedule as a result of the status conference with Judge Seibel on September 7th.

One bone of contention was that the denials of the pistol permits for Alan Kachalsky and Christina Nikolov happened before the McDonald decision was handed down. Gura proposed that the complaint be amended to add more plaintiffs who had been denied after the McDonald decision and this was accepted by the Court and all defendants. It was understood by all parties that the plaintiffs' attorneys would only add new additional parties (both new plaintiffs and defendants) to the case but not make any substantive changes in their arguments or theories. The amended complaint filed last week with the District Court did exactly that - 3 new plaintiffs and 2 new defendants and no changes to the arguments.

Gura notes that the attorneys for the State Defendants have come back to the court repeatedly asking for more time to make their motion along with cutting the amount of time that the plaintiffs have with which to respond. Moreover, the Attorney General's Office obtained permission as noted in a post here last week to submit a 50-page motion and memorandum to dismiss which is twice the normal size. As he notes in his letter to the court:
Notwithstanding the Attorney General's Office's previous lack of reciprocal courtesy on the summary judgment schedule, to accommodate that office, I agreed to a compromise that effectively cut our response time in half: the Attorney General's Office would serve its brief on November 5 instead of October 22, and our opposition would be extended trom November 12 to the 15th. The Court subsequently adopted this modified schedule.

At no point during the conversations relating to this last modification did counsel indicate that he would want additional pages. But last week, counsel obtained permission to double the size of his brief. So we face the prospect of having agreed to half the time -to respond to double the brief, and we are already looking at having a responsive pleading served on November 5, for a case filed July 15 - 92 days versus Rule 12's 21-day standard.
Westchester County also seems to be trying to play games and is called out as well. The County is now saying that they need to be served "officially" with the amended complaint even though they have gotten notice of each and every filing electronically. Gura states that if the "County would ignore the amended complaint, Plaintiffs would request entry of default."

Gura ends his letter by saying he hoped that the Attorney General's Office would accept service and appear on behalf of the new defendants (Lorenzo and Holdman) as there is no need to have duplicate cases. He notes that he has worked with opposing counsel to agree on a briefing schedule for this case and that time and time again they have come back asking for changes.

Judge Seibel, as I noted above agrees with Gura, and says in her handwritten notes (which are transcribed verbatim):
The Court understood the proposal in Mr. Tomassi's (sic) 10/8/10 letter as Mr. Gura does - i.e., the parties contemplated an amended complaint concurrent w/ the motion to dismiss. The Court also does not see why the representations of the new Defendants cannot be formalized quickly. The original Defendants shall file their motion to dismiss on or before 11/9/10. Once the new defendants are represented, they may join the original Defendants' arguments by submitting a letter stating the same, & may add any additional arguments unique to them & the amended complaint. This shall be done by 12/6/10. Plaintiffs may oppose the original Defendants' motion on whatever date they would like, which they should provide to me by letter, & the same is true for opposition to the new Defendants submission if it contains new arguments. Defendants to reply 3 weeks thereafter, with plaintiffs reply on cross-motion 2 weeks thereafter. Plaintiff's counsel should be mindful, in deciding when to oppose, that the Court has a long queue of motions & is unlikely to reach this case for some time in any event. So Ordered. Cathy Seibel USDJ 11/1/10
It is my impression from Judge Seibel's Individual Court Practices that she likes to keep an orderly court and is thus none too happy with the games that the State of New York is trying to play in her court room.  Her handwritten comments are a distinct rap across the knuckles to the Attorney General's Office and is a reminder that they need to shape up and fly right.

UPDATE: The State of New York's Motion to Dismiss which Judge Seibel required to be submitted by Tuesday, November 9th is still not up on the website. There have been no updates since November 8th so I don't know if they have gotten an extension or not. If there are any changes, I'll keep you posted.

Of course, it could be that a 50-page Motion is just too large and wordy for the on-line system.

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