Molchatsky et al v. United States Of America

Filing 32

RESPONSE to Motion re: 31 MOTION to File Amicus Brief.. Document filed by United States Of America. (Ehrlich, Jeffrey)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
––––––––––––––––––––––––––––––––––––x
:
PHYLLIS MOLCHATSKY and
:
STEVEN SCHNEIDER, M.D.,
:
:
Plaintiffs,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
:
––––––––––––––––––––––––––––––––––––x

09 CIV 8697 (LTS/AJP)

UNITED STATES OF AMERICA’S
RESPONSE TO BURNETT H. RADOSH’S
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Plaintiffs commenced this case on October 14, 2009. On December 14, 2009, the United
States moved to dismiss for lack of subject-matter jurisdiction because Plaintiffs’ claims are
barred by the discretionary function exception.1 The parties have exhaustively briefed this issue,
together producing more than 120 pages of material. In addition to the United States’ motion and
supporting memorandum, the parties have filed a response opposing the motion;2 a reply
supporting it;3 a notice of supplemental authority regarding the dismissal of a nearly-identical
case;4 a surreply;5 and a response to the surreply.6 Briefing has been closed since June 11, 2010.

1

See Doc. 6.

2

See Doc. 13.

3

See Doc. 16.

4

See Doc. 17 (citing Dichter-Mad Family Partners v. United States, 707 F. Supp. 2d 1016
(C.D. Cal. 2010)).
5

See Doc. 20.

6

See Doc. 21.

Now, more than a year after the United States filed its motion and more than six months
since briefing was completed, Burnett H. Radosh, who, like Plaintiffs, was a Madoff investor,
seeks to file an amicus curiae brief opposing the United States’ motion. The Court should deny
Radosh’s request.
“District courts have broad discretion to permit or deny the appearance of amici curiae in
a given case.”7 Courts generally deny amici requests where the parties’ interests are adequately
represented by counsel and additional memoranda of law would not aid the court.8
Radosh’s amicus request should be denied because his participation in this case would
offer nothing new. The statute he cites, like those relied on by Plaintiffs,9 fails to prescribe a
fixed or readily-ascertainable standard,10 and so cannot defeat the discretionary function
exception. The United States has already addressed this point in its reply memorandum,11 but
stands ready to supply additional briefing should the Court deem it necessary.

7

United States v. Ahmed, 788 F. Supp. 196, 198 n.1 (S.D.N.Y. 1992).

8

Id.; see also, e.g., Esther Sadowsky Testamentary Trust Derivatively ex rel. Home Loan
Mortgage Corp. v. Syron, No. 08-CV-5221 (BSJ), 2009 WL 1285982, at *3 (S.D.N.Y. May 6,
2009) (“Here, the parties seeking to intervene offer no new substantive legal arguments or
perspectives that appear necessary or useful to the Court. Moreover . . . the Court finds that their
motions are neither timely nor necessary to protect the movants’ interest. Finally, all parties are
adequately represented by counsel. Therefore, the Court DENIES the . . . applications to appear
as amici curiae.”); United States v. El-Grabowny, 844 F. Supp. 955, 957 n.1 (S.D.N.Y. 1994)
(Mukasey, J.) (rejecting amici applications because “[n]either of [the] submissions offers any
argument or point of view not available from the parties themselves”).
9

See, e.g., Doc. 13 at 26-27.

10

Radosh’s statute, for example, leaves to the SEC to determine whether it has enough facts
“to believe” that a regulated entity is “in or is approaching financial difficulty,” and it prescribes
no standards for determining when that threshold has been met (or “approached”).
11

See Doc. 16 at 18.
2

Because the proposed amicus brief would not aid the Court’s determination of the
pending motion to dismiss, the Court should deny Radosh’s motion to appear as amicus curiae.

Respectfully submitted,
PREET BHARARA
United States Attorney
Southern District of New York

TONY WEST
Assistant Attorney General
PHYLLIS J. PYLES
Director, Torts Branch

s/ Sarah S. Normand
SARAH S. NORMAND
NEIL M. CORWIN
Assistant United States Attorneys
Southern District of New York
86 Chambers Street, Third Floor
New York, NY 10007
212-637-2709
[e-mail]
[e-mail]

MARY M. LEACH
Assistant Director, Torts Branch
s/ Jeffrey Paul Ehrlich
JEFFREY PAUL EHRLICH
Trial Attorney, Torts Branch
Department of Justice
Ben Franklin Station, P.O. Box 888
Washington, D.C. 20044
202-353-2574
[e-mail]

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