Yoder, et al v. Town of Morristown, et al

Filing 58

RESPONSE in Opposition re 57 Letter Motion from Jacinda H. Conboy, Esq. for Mark Blanchard, Christopher Coffin, Lanetta Kay Davis, Frank L. Putman, David Stout, III, Town of Morristown, Gary Turner, Howard Warren requesting the Court's consideration of the document provided filed by Menno L. Glick, John L. Hershberger, Menno S. Hershberger, Urie Hershberger, Andy A. Miller, Harvey Miller, Mose Miller, Dannie L. Swartzentruber, Mosie Swartzentruber, Peter D. Swartzentruber, Levi Yoder, Jonas Zook, Sam Zook. (Rassbach, Eric)

BOARD OF ADVISORS
Hon. William P. Barr Former Attorney General of the United States Prof. Stephen L. Carter Yale Law School His Eminence Francis Cardinal George, O.M.I., Archbishop of Chicago Hon. Orrin G. Hatch United States Senator Prof. Douglas Laycock University of Michigan Law School Rev. Richard John Neuhaus Eunice Kennedy Shriver

April 22, 2010 By ECF The Honorable Neal P. McCurn Senior U.S. District Court Judge U.S. District Court for the Northern District of New York Syracuse, New York 13261 Re: Yoder, et al. v. Town of Morristown, et al., No. 09-cv-00007

Dear Judge McCurn: We represent the Plaintiffs in the above-referenced action and write in response to Defendants' letter dated April 20, 2010. (See Docket No. 57). In that letter, Defendants request that the Court consider an unauthenticated email from a regional New York State employee (the "email") in connection with their motion to dismiss pursuant to Fed. R. Civ. P. 12 or in the alternative join the State of New York as a Defendant pursuant to Fed. R. Civ. P. 19 or 20. For the reasons set forth below, we respectfully submit that the Court should not consider the email. First, we note that the email is outside the pleadings and need not be considered in connection with the pending motion. See, e.g., Dourlain v. United States/IRS, 5:06-CV-424 (NAM/DEP), 2008 WL 4605958 at *2 (N.D.N.Y. 2008). Second, Defendants offer no proof of the relevance of the email to the pending motion. That is because there is none. Even if the email actually did reflect the State's "position," that would not make the State a necessary party for purposes of Rule 19 or a proper one under Rule 20. It is wellestablished that a non-party is not a necessary party merely because the nonparty has some interest in the outcome of a case. See, e.g., Mastercard Int'l, Inc. v. Visa Int'l Serv. Ass'n, 471 F.3d 377, 387 (2d Cir. 2006). Third, even if the State's "position" mattered to the pending motion, there is no evidence that the email represents the State's position, as opposed to one civil servant's opinion.

Sargent Shriver Chairman of the Board, Special Olympics International Dr. Ronald B. Sobel Senior Rabbi, Congregation Emanu-El of the City of New York John M. Templeton, Jr., M.D. Bryn Mawr, Pennsylvania

3000 K St., NW, Suite 220 Washington, DC 20007-5109 Phone: [phone] Fax: [phone] www.becketfund.org

Hon. Neal P. McCurn Page 2 of 2 April 22, 2010 Finally, even though the email is irrelevant to the pending motion, it bears mention that the email emphasizes that all code enforcement officers should "avoid any type of discrimination with regard to . . . administration and enforcement of the New York State Uniform Fire Prevention and Building Code." We thank the Court for its consideration. Respectfully submitted,

Eric C. Rassbach National Litigation Director

cc:

Jacinda H. Conboy, Esq. (by ECF)