Burroughs et al v. County of Nassau et al

Filing 153

ORDER: Denying 146 Motion to Sever; and ORDER Granting 152 Motion for Extension of Time to File Response/Reply. For the reasons set forth (PLEASE SEE ORDER FOR FURTHER DETAILS), the motion to sever claims or separate trials is denied. The Court orders that defendants serve a copy of their motion to dismiss on all plaintiffs at their last known addresses and file an affidavit of service with the Court by January 22, 2016. If any plaintiff seeks to oppose the motion, such opposition must be filed with the Court no later than March 4, 2016. The Court has warned plaintiffs numerous times that failure to notify the Court of a change in address could result in dismissal for failure to prosecute. Therefore, to the extent no opposition is fil ed, defendants motion will be deemed unopposed. Defendants reply, if any, must be served and filed on March 18, 2016. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and the refore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 44445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). Ordered by Judge Joan M. Azrack on 1/20/2016. c/m to all pro se litigants.(Ortiz, Grisel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CRAIG BURROUGHS et al,

FILED 
CLERK 

1/20/2016 9:56 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiffs,
ORDER
13-CV-6784 (JMA) (SIL)

-againstCOUNTY OF NASSAU, et al,
Defendants.
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AZRACK, United States District Judge:

Before the Court is the application from incarcerated pro se plaintiff Daniel Miller
(“Miller”), requesting that the Court sever his claims or order separate trials, pursuant to Rule 21
and Rule 42 of the Federal Rules of Civil Procedure. For the following reasons, plaintiff’s
motion is denied.
Furthermore, defendants are instructed to serve a copy of their motion to dismiss on all
plaintiffs at their last known addresses and to file an affidavit of service with the Court by
January 21, 2016. If any plaintiff seeks to oppose the motion, such opposition must be filed with
the Court no later than March 4, 2016. To the extent no opposition is filed, the motion will be
deemed unopposed.
DISCUSSION
This action was filed in November 2013 by fifteen pro se plaintiffs, confined at the
Nassau County Correctional Center. On September 21, 2015, Defendants timely served their
motion to dismiss on the plaintiffs at their most current addresses. (Certificate of Service, ECF
No. 143.3.) However, several of the copies sent to plaintiffs were returned as undeliverable.
(Letter Seeking Guidance from the Court, ECF No. 141.) Now, Miller seeks to sever his claim
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or sever trials because, “since [he] appear[s] to be the only plaintiff actively prosecuting this
case, it would be prejudicial to [him] for [his] claims to be dismissed, or to be deprived of the
opportunity to amend [his] pleading in accordance with Rule 15.” Defendants have opposed
Miller’s motion.
“While issues under Rule 21 or Rule 42 are within the broad discretion of the trial court,
the Court will consider the following factors in making such a decision: (1) whether the claims
arise out of the same transaction or occurrence; (2) whether the claims present some common
questions of law or fact; (3) whether settlement of the claims or judicial economy would be
facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether
different witnesses and documentary proof are required for the separate claims.” Morris v.
Northrop Grumman Corp., 37 F. Supp. 2d 556, 580 (E.D.N.Y. 1999) (citations omitted).
The Court finds that several factors weigh against granting the motion. Alleged as a
group pleading, the complaint contains claims that arise out of the same transaction or
occurrence, and it presents common questions of law or fact. And, severance would in no way
benefit settlement or judicial economy. Finally, to avoid any prejudice, Miller and any other
plaintiff that seek to pursue this case will still have a final opportunity to oppose defendants’
motion—although plaintiffs’ opposition was due on October 21, 2015. Miller alone requested an
extension from the Court, dated December 31, 2015. Consequently, his motion to sever his
claims or order separate trials is denied, and his motion for an extension of time is granted.

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CONCLUSION
For the reasons set for above, the motion to sever claims or separate trials is denied. The
Court orders that defendants serve a copy of their motion to dismiss on all plaintiffs at their last
known addresses and file an affidavit of service with the Court by January 22, 2016. If any
plaintiff seeks to oppose the motion, such opposition must be filed with the Court no later than
March 4, 2016. The Court has warned plaintiffs numerous times that failure to notify the Court
of a change in address could result in dismissal for failure to prosecute. Therefore, to the extent
no opposition is filed, defendants’ motion will be deemed unopposed. Defendants’ reply, if any,
must be served and filed on March 18, 2016.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444−45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).

SO ORDERED.

Date: January 20, 2016
Central Islip, New York
_____/s/ (JMA)___________
Joan M. Azrack
United States District Judge

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