O'Day, et al v. Nassau County, et al

Filing 464

MEMORANDUM AND OPINION This Memorandum and Order has been written solely to explain to counsel the reasons behind the major modifications to the proposed forms presented by plaintiffs pursuant to my direction.. Ordered by Judge Denis R. Hurley on 4/11/2014. (Lundy, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MEMORANDUM AND ORDER
99-CV-2844(DRH)
In re NASSAU COUNTY STRIP
SEARCH CASES
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A P P E A R A N C E S:
For Plaintiffs:
Herbst Law PLLC
420 Lexington Avenue - Suite 300
New York, New York 10170
By: Robert L. Herbst, Esq.
Giskan Solotaroff Anderson & Stewart LLP
11 Broadway Suite 2150
New York, New York 10004
By: Iliana Konidaris, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 1600
New York, New York 10016
By: Jonathan C. Moore, Esq.
Emery Celli Brinckerhoff & Abady LLP
75 Rockefeller Plaza, 20th Floor
New York, New York 10019
By: Matthew D. Brinckerhoff, Esq.
Wolf Haldenstein Adler Freeman & Herz, LLP
270 Madison Avenue
New York, New York 10016
By: Jeffrey G. Smith, Esq.
For Defendants:
Nassau County Attorney's Office
Carnell T. Foskey
Acting County Attorney
One West Street
Mineola, New York 11501
By: Liora M. Ben-Sorek, Esq.
HURLEY, Senior District Judge

In keeping with the Court's request at the January 29,
2014 status conference, plaintiffs' counsel, under covering
letter dated February 23, 2014, submitted a "proposed Final
Judgment, with the Notices and Claim Forms as exhibits, for [my],
review."

(Pls.' Feb. 23, 2014 Letter at 1.)

The County has

objected to, or suggested alternate language as to certain
portions of those submissions.

(See Defs.' Mar. 5, 2014 Letter.)

The purpose of this opinion is to address defendants'
comments about the proposed judgment and the accompanying notice
and claim forms.
Defendants' Comments as to Certain Core Facts
and the Procedural History of the Case as set
Forth in the Proposed Judgment
The first two pages of the proposed judgment provide a
fairly detailed recitation of the case's procedural history along
with some facts (e.g. number of strip searches) and conclusions
(e.g. reasons defendants conceded liability).

Defendants have

expressed concerns about what is included, as well as what is
absent from the introductory language, thereby bringing to the
fore the issue of whether anything beyond a brief preface to the
judgment's decretal paragraphs is required or, indeed, desirable.
Given the history and purpose of the separate document
rule under Federal Rule of Civil Procedure 58(a), the answer to
both of the above questions is "no."

As Judge Easterbrook

writing for a panel of the Seventh Circuit succinctly noted in

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Citizens Elec. Corp. v. Bituminous Fire & Marine Ins. Co: "Like
any proper judgment, the decree entered in this case . . . . says
who is liable for how much, then stops."

68 F.3d 1016, 1021 (7th

Cir. 1995); see also In re Cendant Corp. Securities Litigation,
454 F.3d 235, 243 (3d Cir. 2006)("Our conclusion that the
separate-document requirement does not allow for an extended
presentation of facts and procedural history is supported by
Model Forms 31 and 321 of the Federal Rules of Civil Procedure
('Judgment on Jury Verdict' and 'Judgment on Decision by the
Court').

See Fed. R. Civ. P. 58 advisory committee notes on 2002

amendments.")

This is not to say that plaintiffs violated the

separate document rule under Second Circuit law via their
submission or that prefatory recitation provided was inaccurate.
I do not believe either to be the case.

But based on its

problematic character, the dispute between the parties as to its
contents will not be further discussed.

Rather, the first two

pages of the proposed judgment have been replaced by the Court
with a single introductory sentence consistent with the purpose
of Rule 58 and the sentiment expressed by Judge Easterbrook in
the In re Cendant Corp. Securities Litigation.
Defendants' Objection to the Suggested PostJudgment Interest Rate in the Proposed Judgment

1

Forms 31 and 32 have been renumbered and re-titled such
that currently, Form 70 is "Judgment on a Verdict" and Form 71 is
"Judgement by the Court Without a Jury."
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Plaintiffs have included the New York post-judgment
rate of 9% in the proposed judgment.

Defendants contend that the

federal interest rate set forth in 28 U.S.C. § 1961 applies.
Neither party provides authority for their position beyond
identifying the statutory provision believed to be controlling.
Nonetheless, a fair reading of Section 1961 viewed in conjunction
with established case law indicating that the Section applies to
diversity cases, support defendants' position.

Cf. Schipani v.

McLeod, 541 F.3d 158, 164 (2d Cir. 2008)("In a diversity case . .
. . post judgment interest is governed by federal statute [, viz.
28 U.S.C. § 1961(a)]" and Plaut v. Estate of Rogers, 959 F. Supp.
1302, 1309 (D.C. Colo,. 1997)("[T]he appropriate post-judgment
interest rate in all cases in federal court, including diversity
cases, is governed by federal law.

The applicable rate is set

forth in 28 U.S.C. § 1961, entitled 'Interest.'").

Accordingly,

the proposed judgment has been modified by providing for postjudgment being assessed at the federal, not the state rate.
Defendants' Objection to Provision in the
Proposed Judgment Ordering Payment of the
Amount of the Judgment Into Court
Plaintiffs' proposed judgment directs defendants "to
deposit into Court the sum of $11,508,000 within 30 days of entry
of final judgment."

(Proposed Judgment at 4.)

That provision

should be stricken, defendants argue, because it is unnecessary
given the financial status of the County, as well as supposedly

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irreconcilable with my earlier statement that no bond would be
required to secure a stay of judgment should a stay ultimately be
granted by this Court.

(See Sept. 20, 2013 Tr. at 14, and Oct.

18, 2013 Tr. at 21:20-21.)
Plaintiffs counter by observing that "[t]here is a
significant difference between not posting a bond for purposes of
appeal and the provision of the final judgment requiring the
deposit of the judgment amount into Court.

What the County will

do after judgment is entered is a separate matter that has no
bearing on the issue."

(Pls. Mar. 7, 2014 Letter at 2.)

The

precise nature of that distinction as a practical matter may be
elusive for in each instance defendants are required to provide
something of value – either a bond or cash — to assure that
adequate funds will be on hand at the end of the appeals process
should plaintiffs continue to prevail.

Nonetheless, appealing a

judgment with a concomitant request for a stay implicates a
different stage of the proceeding than the entry of the judgment
itself.
When and if a stay of judgment is sought, the subject
of the present dispute will become germane but not before.

And,

based on Nassau County's well-publicized financial challenges as
of late, depositing the sums awarded for attorney's fees and
expenses with the Clerk of Court is appropriate and is thus
directed pursuant to the judgment which the Court has signed

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today.
Continued Payment of Administrative Costs by County
Defendants, in their March 5, 2014 letter, correctly
note that "[t]o date, the Court has imposed administrative fees
(such as copying and mailing of notices by the Class
Administrator) upon the Defendants."
at 3.)

(Defs.' Mar. 5, 2014 Letter

That practice, defendants maintain, should now be changed

because (1) "[s]hould the County prevail upon appeal of the Final
Judgment, it will not be able to recoup those expenditures," and
(2) "[b]ecause CPLR § 904(d) permits the Court to direct a
plaintiff to bear the costs of class notices, and in light of the
change in law (at least the Federal law) with regard to
permissibility of strip searches upon admission to correctional
centers, the Defendants' [sic] respectfully request that this
Court revisit its prior order and shift the future administration
expenses to the plaintiffs."

Id.

In response, plaintiffs argue "CPLR § 904(d) is not
applicable to this federal case, and even if arguendo it were, it
would not require imposing the costs upon plaintiffs.

The fact

that the federal claims were dismissed is no reason to shift the
costs of administration to plaintiffs in light of their having
prevailed, upon the County's concession of liability 10 years
ago, on the state constitutional claim."
Reply at 2.)

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(Pls.' Mar. 7, 2014

Plaintiffs' assertion as to the supposed
inapplicability of CPLR § 904(d) is presented as a supposed
truism.

However, since the soundness of that conclusion is not

obvious to the Court, and in view of the absence of supporting
authority being provided, I have assumed, arguendo, that § 904 is
germane.
Section 904(d)(I) provides that a court may, "if
justice requires," shift the cost of notification from the
plaintiff with whom the onus would typically rest to the
defendant in whole or in part.

CPLR § 901(d)(I).

Although

relevant case law is sparse, Pludeman v. Northern Leasing
Systems, Inc. instructs that the subject section authorizes
placing the notification costs with a defendant depending on "the
merits of the action, the defenses thereto, and the resources of
the respective parties."

74 A.D.3d 420, 425, 904 N.Y.S.2d 372,

378 (First Dep't 2010).
Proceeding in reverse order, the County, even in its
diminished financial state, is presumably better able than
plaintiffs – whose only link is the shared misfortune of having
been arrested for a non-felony offense and then undergoing the
humiliation of being strip searched upon entry to NCCC – to
shoulder the costs of notification.
As far as "the defense[]" to plaintiffs' claims is
concerned, defendants conceded liability, i.e. that their actions

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did, in fact, violate each class member's constitutional right to
be secure in his or her person.

Basically what remains at this

juncture is for class members to respond to the general damages
notice by filing a claim and, for those who intend to pursue
special damages, to commence a new action for that purpose.

But,

of course, the landscape has changed since defendants' admission
of liability as a result of Florence and the dismissal of the
federal constitutional claim.

Still, the proposition that

Florence will serve as the vehicle (1) to erase their concession
of liability, and (2) for the New York Court of Appeals then —
unencumbered by the concession — to reconcile the subject strip
searches with the protections afforded to New York citizens under
Article I, Section 12 of New York State Constitution, is
problematic at best.

So yes, the County's prospects as far as

mounting a defense are arguably better than pre-Florence, but not
sufficiently better to shift the costs of notification from the
County to the class.
And as to the initial factor in Pludemane, viz. the
merits of the action, the observations just made about the
strength of defendants' defense to their admitted liability also
sheds light on the strength of plaintiffs' remaining claim viewed
as of this stage of the proceeding.
In sum, defendants' arguments calling for the shift of
the notification costs from the defendants to plaintiffs are not

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convincing.
This concludes the Court's explanation to counsel
concerning the changes made to the draft judgment submitted by
plaintiffs.2

Attention will now be focused on the accompanying

proposed notice and claim forms.

In that regard, the sequence in

which the forms are discussed by the Court follows the order in
which they are addressed in the County's March 5th letter rather
than by their respective exhibit numbers as recited in the
judgment.
Proposed Non-Book and Bail Draft Notice (Exhibit 3)
The word "them" has been deleted from the beginning of
the third line in the "Summary" portion of the Notice on the
first page as requested by defendants.

However, defendants'

objection to the third bullet point which they categorize as
providing "legal advice" is found to be without merit.

Class

members are entitled to be notified not only of the general
damages award but also of the other major benefit received by
class counsels on their behalf, i.e. the concession of liability
and the anticipated effect of that concession on subsequently
commenced lawsuits seeking special damages.
The misspelled first word on the second page has been

2

The other major items included within the proposed
judgment submitted by plaintiffs which were challenged by
defendants in their March 5, 2014 letter, were addressed vis-avis the subject matter involved in this Court's Memorandum &
Order dated April 2, 2014 as amended on April 7, 2014.
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corrected to read "were" and the "a" immediately before the word
"previous" has been deleted.3
Proposed Book and Bail Draft Notice (Exhibit 1)
Defendants' comments about the proposed Book and Bail
draft notice read in pertinent part:
In the third bullet point under Summary,
defendants object to the insertion of the
term "to the best of your recollection."
Notwithstanding discussions held two years
ago on the proposed notice language, over the
past six months this Court and the parties
have spent considerable time discussing the
contents of the notices. At no time did
Plaintiff mention that these issues had been
definitely determined in 2012. It was,
however, agreed and determined during the
recent conferences that the subjects of the
Book and Bail notice and claim form would be
required to attest under the penalty of
perjury to the fact that they were strip
searched upon admission to the NCCC.
Insertion of the phrase "to the best of your
recollection" is too ambiguous and invites
deception. These individuals either were or
were not strip searched upon admission to the
Correctional facility.
Defendants [also] object to the legal
advice provided in the fourth bullet point,
specifically the statement notifying
plaintiffs of the estoppel effect of the
liability concession.
(Defs.' Mar, 5, 2014 Letter at 4.)
The Court is underwhelmed by the objection to "the best
of your recollection" verbiage.

In this Court's January 25, 2012

Order, it addressed the subject now under discussion thusly:

3

This change has also been made to page 1 of Exhibit 1.
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The Court further proposes that those
members of the class who have been identified
as potential "book and bails" should be sent
the B&B Class Notice and a claim form in the
format submitted by plaintiffs, with . . .
the following modifications: In Section 3,
which is entitled "Certification and
Signature," the sentence reading "By signing
this form, I am confirming that the above
information is correct" should be deleted and
replaced with the following language: "I
declare under penalty of perjury that, to the
best of my recollection, I was strip searched
at the Nassau County Correctional Center
following my arrest for a misdemeanor or noncriminal offense on the dates listed in
Section 2, above." That sentence shall be
followed with: "I acknowledge that Nassau
County may challenge my claim."
Any objections to or comments regarding
the proposals outlined above or the attached
documents shall be filed on or before
February 3, 2012. Any replies shall be filed
on or before February 10, 2012.
(Jan. 25, 2012 Order at 4.)
By letter dated February 3, 2012, defendants advised
that they had "no objections to the Notice and Claim Forms
proposed by the Court for . . . the potential Book & Bails."
(Defs.' Feb. 3, 2012 Letter at 1.)
Based on the County's representation, I viewed — and
still view — the matter as resolved.

Incidentally, however,

deletion of the subject modifier to the attestation clause would
likely have an unnecessary inhibiting affect upon aggrieved
persons.

Simply put, some members may be understandably hesitant

to unequivocally swear under penalty of perjury to being strip

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searched upon admission to the NCCC during the class period if,
for instance, their experience was a decade or so ago and this
was not their sole strip search experience.

To the extent their

attestation "to the best of [their] recollection," is arguably
"equivocal," the County is hard pressed to legitimately complain
since (1) it provided the list of class members from its records,
only later carving-out possible book and bail exceptions to that
list, and (2) more importantly, it has the right to challenge the
accuracy of any book and bail attestation.
With respect to defendants' objection to the fourth
bullet point concerning purported "legal advice" being provided
in the Notice, that issue was addressed earlier in reviewing
defendants' challenges to the Non-Book and Bail Draft Notice.
Proposed Non-Book and Bail Claim Form (Exhibit 4)
Defendants advise that "[t]his form is acceptable
subject to the objections [raised and decided] on the record."
(Defs.' Mar. 5, 2014 Letter at 4.)
Proposed Book and Bail Claim Form (Exhibit 2)
What I said earlier about defendants' objection to the
phrase "to the best of my recollection" is hereby incorporated by
reference.4

4

Parenthetically, the likely inhibiting affect of deleting
the subject language from this claim form is even more pronounced
since here the class member attests to having been strip searched
on a given day or days instead of sometime during the
approximately three year class period.
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Defendants' request that the Court add the term "upon
admission" in the second line of "Section 3" is granted.

The

term shall appear in the modified claim form immediately after
the word "searched."
The Court has also changed some of the language in
Section 2 sua sponte.

In the proposed Book and Bail claim form,

that Section reads: "Below are listed the booking dates for each
date of arrest for a misdemeanor or non-criminal offense from May
20, 1996 through June 1, 1999 when you were strip-searched at the
Nassau County Correctional Center."

(Emphasis added).

Telling

the recipients of the form that they "were strip-searched" on the
dates listed runs counter to the very reason that some of the
17,000 believed class members were sent Book and Bail notices and
claims forms, i.e. to determine which of those individualarrestees were not strip-searched because they were released on
bail prior to that part of the intake process being conducted.
Accordingly, Section 2 will be modified by replacing the word
"were" with the term "may have been."

In addition, the box

entitled "Value of Your Claim" under Section 2 has been deleted
as confusing for essentially the same reason, as well as
unnecessary.
Section 3 has also been modified, sua sponte, by
inserting "one or more of" in the second sentence immediately
before the phrase "on the date(s) listed in Section 2," coupled

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with a direction in Section 2 to "cross-out (by putting a line
through) any 'Line #(s)' which pertain to an arrest which did not
result in your being strip searched upon admission to the Nassau
County Correctional Center."

The reason for this modification is

that arrestees within the Book and Bail category who had more
than one qualifying arrest did not necessarily have the same
experience on each occasion.
CONCLUSION
This Memorandum and Order has been written solely to
explain to counsel the reasons behind the major modifications to
the proposed forms presented by plaintiffs pursuant to my
direction.
SO ORDERED.
Dated: April 11, 2014
Central Islip, New York

_________________________
DENIS R. HURLEY, U.S.D.J.

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