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

Filing 487

ORDER re [481, 482, 483, 484, 485]: It is hereby ORDERED that defendants deposit the full amount of the final judgment ($11,508,000.00) with the Clerk of Court on or before August 15, 2016; and it is further ORDERED that the monies deposited wi th the Clerk of Court shall be held in an interest bearing account until such time as the Court enters any Orders respecting same; and is it further ORDERED that defendants shall (1) advise the Court when a petition for certiorari has been filed or w hen the time to file said petition has expired without a petition having been filed; and (2) in the event a petition is filed advise the Court of any ruling on the petition within ten (10) days of said ruling; and it is further ORDERED that the deadl ine for any fee application by plaintiffs is extended to on or before October 30, 2016 with defendants' papers in opposition to be filed on or before 15 business days of the actual date of plaintiffs' filing and the reply, if any, being due on or before 10 business days thereafter; and it is further ORDERED that the agreed upon changes to the claim form set forth in plaintiff's letter of July 8, 2016 are approved and that the claim form shall state, with respect to the time limits for filing a lawsuit for damages beyond the $500 per strip search, as follows:The time limits for filing a lawsuit for additional damages are based on the three-year statute of limitations applicable to these claims. The Court placed a hold (i. e. stoppage on the running of the three year statute of limitations) on May 20, 1999. That hold continues to be in effect until 180 days after June 16, 2016, so that you will have until at least December 13, 2016 to file an individual lawsuit for add itional damages. This means the amount of time you have to file a separate lawsuit depends upon the date you were stripped search. For example, if you were strip searched anytime from May 20, 1996 until November 16, 1996, you have until December 13, 2016 to file a separate individual lawsuit for additional damages. For example, if you were strip searched on June 1, 1997, you would have one year after December 13, 2016 to file your individual lawsuit for additional damages. If you were strip sea rched on June 1, 1998, you would have two years after December 13, 2016 to file your individual lawsuit for additional damages. If you were strip searched on June 1, 1999, you have the entire three-year statute of limitations period to file a separate lawsuit. If you have a question about additional damages or the amount of time you have to file a separate you should contact an attorney. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 7/28/2016. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MEMORANDUM & 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 R 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.
Cuti Hecker Wang LLP
154 Grand Street
New York, New York 10013
By: Mariann Meier Wang, Esq.
Law Offices of Martin E. Restituyo Esq.
135 Avenue of the Americas
2nd Floor
New York, New York 10105
By: Martin E. Restituyo, Esq.

For Defendants:
Nassau County Attorney's Office
Carnell T. Foskey
County Attorney
One West Street
Mineola, New York 11501
By: Liora M. Ben-Sorek, Esq.
Robert F. Van der Waag, Esq.
HURLEY, Senior District Judge
The purpose of this Memorandum and Order is to address
and, to the extent necessary, resolve the issues raised in the
plaintiffs’ July 8, 2016 letter.

By way of format, the subjects

will be discussed sequentially under the captions utilized by
plaintiffs.
Deadline by Which the County Must Deposit
the Amount of the Judgment into Court
In the Court’s final judgment signed on April 11, 2014,
defendants were directed “to deposit into Court the sum of
$11,508,000 within 30 days.”
2.)

(Apr. 11, 2014 Final Judgment at

Stays were thereafter put in place pending appeal.
The Second Circuit affirmed the final judgment with its

mandate being issued on June 16, 2016.

As a result, the deposit

into Court was to be made by July 16, 2016.

Plaintiffs reminded

defendants of this obligation by, inter alia, a letter dated June
17th.

Hearing nothing in response, plaintiffs provided the Court

with a status report via their July 8th letter and an implicit
request for the Court’s assistance as to this — should such prove
to be necessary — and some other “loose ends” discussed infra.

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Defendants responded in pertinent part thusly:
[T]he County, subsequent to this Court’s
[April 11, 2014] Judgment, had the County
Legislature approve the full amount of the
Judgment; and, approved the issuance of any
and all bonds to pay the Judgment, if
necessary. Further, the County now has a
Litigation Fund sufficient to pay these
amounts. Incidentally, these developments
are the elements which the County did not
have in place when it first asked this Court
to dispense with any deposit or bond posting.
Accordingly, the County is ready, willing
and able to pay any amount of that judgment
into Court or a bank, if required. However,
the County requests that this Court modify
its initial directive since it is no longer
necessary. It is respectfully requested that
the County, if this Court directs, will
deposit Five Million ($5,000,000.00) Dollars
into a Special Revenue Account which would be
a segregated account earmarked, and to be
used solely, for this litigation. As any
further money is needed beyond that amount,
the County can and will make those payments
from its Litigation Fund. This is especially
appropriate in the instant case since we will
not know what claims will be submitted to the
Administrator and their amounts. Again, the
timeframe for the claims to be filed will not
even expire for almost two years (February,
2018).
(Defs.’ July 13, 2016 Letter at 2.)
The Court, like plaintiffs, is “glad to hear that
County is able to comply with [the] July 16 deadline to pay the
amount of the Final Judgment into Court in compliance with the
30-day period in the Final Judgment.”
Letter at 1.)

(Pls.’ July 13, 2016

Defendants’ concomitant request that its payment

provisions be restructured in the manner suggested is rejected
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for several reasons including:
(1)

the April 11, 2014 Judgment, including the

appeal therefrom, represents the law of the case, and defendants
have proffered no convincing reason to disturb the Court’s
earlier directive, see Yick Man Mui v. United States, 614 F.3d
50, 53 (2d Cir. 2010)(“The mandate rule prevents re-litigation in
the district court not only of matters expressly decided by the
appellate court, but also precludes re-litigation of issues
impliedly decided by the appellate court’s mandate.”);
(2)

to the extent the County may be concerned

about the interest earned on the deposited money prior to its
disbursement, the $11,508,000 shall be deposited by the Clerk of
Court into an interest bearing account with the interest earned
inuring to the benefit of the County;
(3) the County’s apparent suggestion that the
$5,000,000 it proposes be deposited into a “Special Revenue
Account” may ultimately prove to be sufficient to satisfy the
defendants’ payment obligations seems unrealistic given that
there is already a charge of over $4,000,000 against the
judgment.

(See Defs.’ July 13, 2016 Letter at 2; Apr. 11, 2014

Final Judgment at 3-4 (“. . . in accordance with the Memorandum
and Order dated April 7, 2014, class counsel are awarded
attorneys’ fees of $3,836,000, and expenses of $182,030,25, to be
paid first from the Common Fund and then by defendants if, after

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the claims period ends, there is insufficient money in the common
fund to pay all class claims and attorneys fees and expenses.”).)
And yet to be determined are the post-judgment fees and expenses
associated with the appeal and other case related activities
since April 10, 2014;
(4) The unconvincing character of the County’s
suggestion mentioned in the prior paragraph is not cured via its
reference to the “Litigation Fund.”
at 2.)

(Defs.’ July 13, 2016 Letter

No specific information concerning that fund has been

proffered by defendants such as its amount, other present and
likely charges against the account or, most importantly, the
governmental procedures and accompanying time frames involved in
withdrawing or replenishing monies from the cited source.

As to

the last consideration, class members and their counsel have an
obvious interest after all these years of receiving the monies
due them without having to navigate unnecessary potential
bureaucratic delays which might come about should defendants’
request be granted.
In sum, the County has represented that it is “ready,
willing and able to pay any amount of that judgment into Court or
a bank, if required.”

(Id.)

As per this Memorandum and Order,

the County is “required,” i.e. directed, to deposit the full
amount of the final judgment ($11,508,000.00) with the Clerk of
Court on or before August 15, 2016, which monies shall be

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deposited by the Clerk of Court in an interest bearing account.
The County shall be required to apprise the Court with regard to
any petition for certiorari as set forth infra.

Upon exhaustion

of further appellate review, the Court shall enter orders
regarding the disbursal of the funds so deposited, including,
assuming the final judgment remains undisturbed, disbursal for
attorneys’ fees and costs.
Proposed Revisions to Notices and Claim Forms
“[B]cause of the passage of more than two years and the
completion of the appellate proceedings in the Second Circuit,
the parties agree that the dates and certain other language in
the notices and claim forms have to be revised before they can be
mailed.”

(Pls.’ July 8, 2016 Letter at 2.)

Their agreement

extends to the specific changes needed to update the mailings
with one exception, to wit: “the timeframe for filing lawsuits
for damages beyond the $500 per strip search.”

(Defs.’ July 13,

2016 Letter at 2.)
Plaintiffs propose that the revised “start date of the
180-day tolling provision [should be changed] from the date of
the entry of the Final Judgment, April 11, 2014, to August 15,
2015, the date by which the notices and claim forms are [now] to
be mailed . . . and any further appeal to the United States
Supreme Court has been resolved.”

(Pls.’ July 8, 2016 at 2-3.)

In defendants’ view, the 180-day tolling period should

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be deemed to have started running as of the “Second Circuit Court
of Appeals Mandate which was issued on June 16, 2016,” absent any
reference to either the date the notices and forms are mailed to
the class members or to the defendants’ expressed intent to seek
a writ of certiorari from the high court.

(Defs.’ July 16, 2016

Letter at 2.)
My goal in resolving the present dispute is to update
the class notices and forms, not to alter the substance of the
April 2014 judgment.

That judgment provides that the 180-day

toll was to run from the date of the judgment or, in the event of
an appeal, the issuance of a mandate, not from the later
mailings.1

Moreover, no stay is in effect as to any further

appellate steps defendants may elect to pursue.
For the reasons indicated, the updating process will be
appropriately accomplished consistent with the April 2014
judgment by measuring the 180 toll from June 16th of this year
rather than the August mailing date urged by plaintiffs.
60 Days to File Fee Application
Plaintiffs ask for 60 days to file their post-judgment

1

The April 10, 2014 Final Judgment provides in pertinent
part at page 3: “As set forth in [the] Notices, the statute of
limitations for class members’ filing of individual lawsuits for
special damages is ORDERED tolled for an additional period of 180
days after entry of final judgment. If an appeal is taken from
final judgment, the 180-day additional tolling period will not
begin to run until the issuance of the mandate from the Court of
Appeals.”)
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fee application.

The County advises, as have plaintiffs, that

the parties intend to discuss the issue with the hope of reaching
an agreement “without the necessity of [plaintiffs] having to
file a motion for same.”

(Defs.’ July 13, 2016 Letter at 2-3.)

Towards that end, defendants suggest that the 60-day period run
from the time they are in receipt of plaintiffs’ “time records
which has yet to be accomplished.”

(Id. at 3.)

Having considered the parties’ position, it is ordered
that (1) plaintiffs provide defendants with their fee demand by
September 5, 2016 with supporting documentation, and (2) if
parties are unable to agree on the amount to be paid, the
required motion shall be briefed as set forth infra.
Conclusion
In accordance with the foregoing, it is hereby
ORDERED that defendants deposit the full amount of
the final judgment ($11,508,000.00) with the Clerk of Court on or
before August 15, 2016; and it is further
ORDERED that the monies deposited with the Clerk
of Court shall be held in an interest bearing account until such
time as the Court enters any Orders respecting same; and is it
further
ORDERED that defendants shall (1) advise the Court
when a petition for certiorari has been filed or when the time to
file said petition has expired without a petition having been

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filed; and (2) in the event a petition is filed advise the Court
of any ruling on the petition within ten (10) days of said
ruling; and it is further
ORDERED that the deadline for any fee application
by plaintiffs is extended to on or before October 30, 2016 with
defendants’ papers in opposition to be filed on or before 15
business days of the actual date of plaintiffs’ filing and the
reply, if any, being due on or before 10 business days
thereafter; and it is further
ORDERED that the agreed upon changes to the claim
form set forth in plaintiff’s letter of July 8, 2016 are approved
and that the claim form shall state, with respect to the time
limits for filing a lawsuit for damages beyond the $500 per strip
search, as follows:
The time limits for filing a lawsuit for
additional damages are based on the
three-year statute of limitations applicable
to these claims. The Court placed a hold
(i.e. stoppage on the running of the three
year statute of limitations) on May 20, 1999.
That hold continues to be in effect until 180
days after June 16, 2016, so that you will
have until at least December 13, 2016 to file
an individual lawsuit for additional damages.
This means the amount of time you have to
file a separate lawsuit depends upon the date
you were stripped search. For example, if you
were strip searched anytime from May 20, 1996
until November 16, 1996, you have until
December 13, 2016 to file a separate
individual lawsuit for additional damages.
For example, if you were strip searched on
June 1, 1997, you would have one year after
December 13, 2016 to file your individual
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lawsuit for additional damages. If you were
strip searched on June 1, 1998, you would
have two years after December 13, 2016 to
file your individual lawsuit for additional
damages. If you were strip searched on June
1, 1999, you have the entire three-year
statute of limitations period to file a
separate lawsuit. If you have a question
about additional damages or the amount of
time you have to file a separate you should
contact an attorney.
Dated:

Central Islip, New York
July 28, 2016
s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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