NAACP New York State Conference et al v. New York State Board of Elections et al
MEMORANDUM AND ORDER: Plaintiffs' 37 motion to dismiss without prejudice is granted. Forwarded for judgment. Ordered by Judge Frederic Block on 8/8/2012. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NAACP NEW YORK STATE CONFERENCE, as an
organization and representative of its members,
MEMORANDUM AND ORDER
NATIONAL COALITION ON BLACK CIVIC
Case No. 10-CV-2950(FB)(RML)
PARTICIPATION, as an organization and
representative of its members, FAMILIES UNITED
FOR RACIAL AND ECONOMIC EQUALITY, as an
organization and representative of its members,
WORKING FAMILIES PARTY, as a political party
and representative of its members, VIVIAN BOSIER,
ANITA BURSON, and SHEILA DUNCAN,
-againstNEW YORK STATE BOARD OF ELECTIONS,
JAMES A. WALSH, DOUGLAS A. KELLNER,
EVELYN J. AQUILA, and GREGORY P. PETERSON,
in their official capacities as Commissioners of the
New York State Board of Elections, TODD D.
VALENTINE and ROBERT A. BREHM, in their
official capacities as Executive Directors of the New
York State Board of Elections, NEW YORK CITY
BOARD OF ELECTIONS, and JOSE MIGUEL
ARAUJO, NAOMI BARRERA, JULIE DENT,
NANCY MOTTOLA-SCHACHER, JUAN CARLOS
POLANCO, MICHAEL J. RYAN, J.P. SIPP,
GREGORY C. SOUMAS, JUDITH D. STUFF, and
FREDERIC M. UMANE, in their official capacities as
Commissioners of the New York City Board of
For the Plaintiffs:
MICHAEL W. ROSS, ESQ.
Jenner & Block LLP
919 Third Avenue, 37th Floor
New York, NY 10022
For the Defendants:
STEPHEN KITZINGER, ESQ.
City of New York Law Department
100 Church Street
New York, NY 10007
JOEL GRABER, ESQ.
N.Y. State Attorney General, Litigation
120 Broadway, 24th Floor
New York, NY 10271
BLOCK, Senior District Judge:
NAACP New York State Conference, National Coalition on Black Civil
Participation, Families United for Racial and Economic Equality, Vivan Bosier, Anita Burson,
and Sheila Duncan (collectively, “plaintiffs”) brought this action against the New York State
Board of Elections, several individual Commissioners of the New York State Board of
Elections, several individual Executive Directors of the New York State Board of Elections
(collectively, the “State defendants”), the New York City Board of Elections, and ten
individual commissioners of the New York City Board of Elections (collectively, the “City
defendants”) challenging the use of a voting machine display message which increases the
risk that voters will inadvertently cast “overvotes.” Voting machines record overvotes when
they misread a voter’s ballot as including more than the permitted number of votes. The
result is that the voter’s vote is not counted.
On February 10, 2012, the parties informed the court that plaintiffs and the
State defendants had reached a settlement agreement, resulting in the adoption of a new
“overvote message” for voting machines. On February 13, 2012, the court entered an order
dismissing plaintiff’s case against the State defendants.
On February 22, 2012, plaintiffs submitted a letter requesting “that the Court
dismiss Plaintiff’s claim against the City Defendants and close the case, without prejudice
to reopening solely in the event that the City Defendants refuse to implement the overvote
message at the heart of Plaintiff’s settlement with the State Defendants.” Pl’s Letter at 1. On
February 29, 2012, the City defendants responded, requesting that the case be dismissed with
prejudice. Accordingly, the only remaining issue in this case is whether plaintiff’s claims
against the City defendants should be dismissed with prejudice or without.
According to Federal Rule of Civil Procedure 41(a)(2), “absent agreement
between the parties, ‘an action may be dismissed at the plaintiff’s request only by court
order, on terms that the court considers proper.” Kwan v. Schlein, 634 F.3d 224, 230 (2d Cir.
2011) (quoting Fed. R. Civ. P. 41(a)(2)). “Unless the order states otherwise, a dismissal undre
this [Rule 41(a)(2)] is without prejudice.” Fed R. Civ. P. 41(a)(2).
The Second Circuit has noted “[t]wo lines of authority. . . with respect to the
circumstances under which a dismissal without prejudice might be improper.” Camilli v.
Grimes, 436 F.3d 120, 123 (2d Cir. 2006). The first provides “that such a dismissal would be
improper if the defendant would suffer some plain legal prejudice other than the mere
prospect of a second lawsuit.” Id. (internal quotation marks omitted). The second provides
that “the test for dismissal without prejudice involves consideration of various factors,
known as the Zagano factors.” Id. (citing D’Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d
Cir. 1996) and Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990)). The Zagano factors
include: “(1) the plaintiff’s diligence in bringing the motion, (2) any undue vexatiousness on
the plaintiff’s part, (3) the extent to which the suit has progressed, including the defendant’s
efforts and expense in preparation for trial, (4) the duplicative expense of relitigation, and
(5) the adequacy of the plaintiff’s explanation for the need to dismiss.” Id.
The City defendants have not argued that they would suffer any “plain legal
prejudice” if this action were dismissed without prejudice. The Second Circuit has defined
“plain legal prejudice” as “the plight of a defendant who is ready to pursue a claim against
the plaintiff in the same action that the plaintiff is seeking to have dismissed,” for example
where “the cause has proceeded so far that the defendant is in a position to demand on the
pleadings an opportunity to seek affirmative relief and he would be prejudiced by being
remitted to a separate action.” Id. The City defendants have not suggested that dismissal
without prejudice would harm any potential counterclaims, or prevent them from receiving
relief to which they are entitled. Instead, the City defendants argue that any lawsuit brought
by plaintiffs at a later date would fail because the settlement with the State defendants does
not provide any rights “to compel the City Defendants’ compliance with a settlement to
which the City was not a party.” Def’s Letter at 2. The merits of a hypothetical second
lawsuit are not relevant to the question of whether dismissal without prejudice would
impose a “plain legal prejudice,” and the court will not, for the purposes of this motion,
address the extent to which plaintiffs do or do not possess any rights against the City
defendants. See Harlem Teams for Self-Help, Inc. v. Abyssinian Baptist Church of the City of N.Y.,
189 F.R.D. 284, 286 (S.D.N.Y. 1999) (“To the extent that Plaintiff’s case proves to be as
‘frivolous’ as Defendants claim, Defendants will be able readily to re-group and re-assert
their argument, if, as and when the action were to be brought again in the future.”)
With respect to the Zagano factors, plaintiffs were diligent in moving to dismiss
the claims against the City defendants only 11 days after dismissal of the case against the
State defendants. See Hinfin Realty Corp. v. Pittston Co., 206 F.R.D. 350, 355-56 (E.D.N.Y. 2008)
(“The Court finds that the plaintiffs were diligent in bringing their motion to dismiss the
action without prejudice because they filed it immediately after the events that led to their
decision not to pursue the action at this time.”). The City defendants have not claimed that
plaintiffs have done anything “vexatious.” The City defendants have also conceded that
plaintiffs “have not gained any rights against the City defendants” in this litigation and that
“no findings have been made concerning whether or not the overvote message currently in
use violates the Voting Rights Act.” Def’s Letter at 2. Thus, the lawsuit has not progressed
past the very earliest stages, and there would be no “duplicative expense” of relitigation.
Plaintiffs’ explanation of the need to dismiss is adequate – in light of the settlement with the
State defendants, there is no need to proceed with claims against the City defendants, who
by their own admission are obligated to comply with State-level election policies.
Accordingly, all of the Zampano factors weigh in favor of dismissing plaintiffs’ claims against
the City defendants without prejudice.
For the foregoing reasons, plaintiffs’ motion to dismiss without prejudice is
/s/ Judge Frederic Block
Senior United States District Judge
Brooklyn, New York
August 8, 2012
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