Muchmore's Cafe, LLC v. City of New York

Filing 38

MEMORANDUM AND ORDER: For the reasons set forth in the attached memorandum and order, the Court so-orders the parties stipulation of dismissal and settlement (doc. no. 37 ) and denies Sugarman's motion to intervene; (doc no. 33 ). Ordered by Judge Roslynn R. Mauskopf on 7/15/2018. (Taronji, Robert)

Case 1:14-cv-05668-RRM-RER Document 38 Filed 07/19/18 Page 1 of 5 PageID #: 523

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MUCHMORE' S CAFE, LLC,
Plaintiff,

MEMORANDUM AND ORDER
14-CV-5668 (RRM) (RER)

- against CITY OF NEW YORK,
Defendant.

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ROSL YNN R. MAUSKOPF, United States District Judge.
Muchmore' s Cafe, LLC ("Muchmore ' s") brought this case in 2014, challenging the
constitutionality of New York City's Cabaret Law, N.Y.C. Admin. Code 20-359, et seq. (the
"Cabaret Law") under the First and Fourteenth Amendments of the United States Constitution.

(See Comp!. (Doc. No. 1); Am. Comp!. (Doc. No. 4).) Under the Cabaret Law in effect at the
time, the City required businesses that sold food and beverages to the public and allowed dancing
to obtain cabaret licenses. Muchmore' s alleged that the Cabaret Law violated the First
Amendment guarantees of freedom of speech and the right to peaceful! y assemble, as well as the
Due Process and Equal Protection Clauses of the Fourteenth Amendment. (Am. Comp!. ~~ 53,
56.) Both parties moved for a judgment on the pleadings. (Pl. Mot (Doc. No. 14); Def. Mot.
(Doc. No. 18).) The Court granted the City' s motion to dismiss Muchmore's substantive due
process claim, but denied the remaining cross-motions. (Mem. & Order (Doc. No. 27).)
On October 31, 2017, the New York City Council voted to repeal the Cabaret Law.
Local Law 214. Shortly thereafter, Muchmore' s and the City filed a joint status report,
informing the Court that, in light of the Cabaret Law' s repeal, they intended to execute a
stipulation of dismissal. (Joint Ltr. I (Doc. No. 30).) The parties also noted that counsel for
Muchmore ' s intended to send billing records to the City to obtain attorney' s fees as part of the

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settlement. (Id. at 2.) 1 The parties subsequently provided another update to the Court, and
explained that the parties had reached a settlement in principle, and were awaiting the City
Comptroller's approval of the settlement terms, to include payment representing fees and
expenses. (Joint Ltr. II (Doc. No. 31) at 1.) The parties noted that in the event of such approval,
they "intend to execute a Stipulation of Dismissal to be 'so-ordered' by the Court." (Id. at 2.)
Prior to resolution of the settlement, Alan Sugarman, a New York City resident and
taxpayer with an interest in the Cabaret Law,2 moved to intervene as amicus curiae, claiming
that Muchmore's is not entitled to attorney's fees under 42 U .S.C. § 1988, claiming that
Muchmore' s Equal Protection Clause arguments are grounded in "false and misleading
statements." (Mot. to Intervene (Doc. No. 33, 33-1).) Shortly thereafter, Muchmore's and the
City filed an executed stipulation of dismissal and settlement. (Stip. and Order of Dismissal
(Doc. No. 37).) The parties ask the Court to so-order the stipulation.
For the reasons that follow, the Court so-orders the parties' stipulation of dismissal and
settlement and denies Sugarman's motion to intervene.

DISCUSSION

I.

Stipulation and Order of Settlement and Dismissal

Federal Rule of Civil Procedure ("Rule") 4 I governs voluntary dismissals. Under Rule
4l (a), there are two ways to voluntarily dismiss a claim. Rule 41(a)(l)(A) provides that " the
plaintiff may dismiss an action without a court order by filing ... a stipulation of dismissal
signed by all parties who have appeared." Fed. R. Civ. P. 4l(a)(l)(A)(ii). Under Rule 41 (a)(2),
"an action may be dismissed at the plaintiffs request only by court order, on terms that the court

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All citations to Court documents refer to Electronic Case Fi ling System ("ECF") pagination.
Sugarman testified before and provided statements to the City Counci I in support of the repeal of the Cabaret Law,
and, at one point, collaborated with plaintiff in this action. (See Mot. To Intervene (Doc. No. 33); Opp'n to Mot.
(Doc. No. 34.)
2

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considers proper." Fed. R. Civ. P. 41(a)(2). lf " all of the parties stipulated to dismissal," then
the case is dismissed pursuant to Rule 41 (a)(l )(ii). Hester Indus., Inc. v. Tyson Foods, Inc., 160
F.3d 911, 916 (2d Cir. 1998). "Rule 41 (a)(2) does not apply to circumstances where plaintiff can
secure consent to a stipulated dismissal." Id. In this case, both parties jointly signed a
stipulation of dismissal, which provides that in consideration for the $60,000 from the City,
Muchmore's voluntarily dismisses the action. (Stip. and Order of Dismissal at ~ 4.)
Accordingly, the parties proceeded under Rule 41 (a)(l )(ii), and the case is now dismissed.
The parties ask the Court to so-order the terms of their settlement. (See Stip. and Order
of Dismissal.) Even though Rule 41 (a)(l )(ii) permits parties to voluntarily dismiss a case
without a court order, the Court may incorporate the settlement contract into its Order of
dismissal. Kokkonen v. Guardian Life Ins. Co. ofAmerica, 511 U.S. 375, 381- 82 (1994) ("Even
when . . . the dismissal is pursuant to Rule 41 (a)(l )(ii) (which does not by its terms empower a
district court to attach conditions to the parties' stipulation of dismissal) we think the court is
authorized to embody the settlement contract in its dismissal order .. . if the parties agree."); see

also Perez v. Westchester Cty. Dep 't ofCorr., 587 F.3d 143, 151 (2d Cir. 2009) (citing Kokkonen
for the proposition that a court may " incorporat[e] the terms of the settlement agreement in the
order."). Accordingly, the Court by separate endorsement will so-order the parties' stipulation
and order of dismissal.
II.

Amicus Curiae

Furthermore, the Court denies Sugarman's motion to intervene. A district court has
broad discretion to grant or deny an appearance as amicus curiae. See, e.g. , Jamaica Hosp.

Medical Center, Inc. v. United Health Group, Inc. , 584 F. Supp. 2d 489, 497 (E.D.N.Y. 2008).
The main function of an amicus is to assist courts in reaching the correct decision in a case where

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the general public interest is at stake. An amicus may be useful when "a party is not represented
competently or is not represented at all, when the amicus has an interest in some other case that
may be affected by the decision in the present case ... or when the amicus has unique
information or perspective that can help the court beyond the help that the lawyers for the parties
are able to provide." Id. (quoting Ryan v. Commodity Futures Trading Comm 'n, 125 F.3d 1062,
1063 (7th Cir. 1997)).
At this stage in the litigation, Sugarman's assistance will not benefit the Court because
his primary concerns are not relevant to the Court's decision to approve the settlement
agreement. Sugarman' s main focus is to debunk the claim that the Cabaret Law was passed with
discriminatory purpose, and he argues that Muchmore's cannot make out a valid Equal
Protection claim under§ 1983. Without a compelling Equal Protection claim under 42 U.S.C. §
1983, Sugarman continues, Muchmore's is not entitled to attorney's fees under 42 U.S.C. §
1988, which allows prevailing patties in § 1983 suits to recover attorney' s fees and costs. (Mot.
to Intervene at 1, 3, 8.)
Sugarman's concerns are inapposite. The settlement agreement does not award
Muchmore's attorney's fees under § 1988 or any other statute, and the City does not
admit any liability in the settlement. (Stip. and Order of Dismissal at ,r 7.) Instead, the
attorney' s fees contemplated by the settlement constitute consideration for Muchmore's
voluntary dismissal of the case and release from all claims arising from the amended
complaint. (Id. at ,r,r 4, 5.) The fees incurred are a reasonable proxy for the value of such
consideration. Indeed, the terms of the settlement appear to bar Muchmore' s from
seeking attorney's fees under§ 1988. See Brown v. General Motors Corp. , Chevrolet

Div., 722 F.2d 1009, 1011-12 (2d Cir. 1983) (finding that broad release of claims in the

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settlement precluded subsequent motion for attorney's fees under§ 1988); accord Valley

Disposal, Inc. v. Central Vermont Solid Waste Mgmt. Dist., 71 F.3d 1053, 1058 (2d Cir.
1995) (" We adhere to our view in Brown that a party may express its intent to waive
attorneys' fees by employing broad release language, regardless of whether that release
explicitly mentions attorneys' fees ."). Therefore, Sugarman' s assistance in providing the
history of the Cabaret Law and its bearing on any Equal Protection claim would is not
prove helpful to the Court in deciding whether it should approve the stipulation and order
of settlement and dismissal.
Sugarman also asks the Court to order Muchrnore' s to file a motion for attorney's
fees, as required by Rule 54(d)(2)(A). Fed. R. Civ. P. 54(d)(2)(A) ("A claim for
attorney's fees ... must be made by motion ..."). Putting aside any concerns that
Sugarman even has standing to make such a request, Rule 54 does not apply because the
terms of the settlement, rather than a specific statute or rule, entitle Muchrnore's to
attorney' s fees. Fed. R. Civ. P. 54(d)(2)(B)(ii).
Accordingly, Sugarman' s motion is denied in its entirety, and the Court will
endorse the stipulation and dismissal by separate Order.
SO ORDERED.

Ros{ynn 'R. :Mauskoyf

Dated: Brooklyn, New York
July 15, 20 18

ROSLYNN R. MAUSKOPF
United States District Judge

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