Schoolcraft v. The City Of New York et al

Filing 538

LETTER MOTION for Leave to File for Entry of Proposed Judgment and Proposed Order of Dismissal addressed to Judge Robert W. Sweet from Alan H. Scheiner dated 10/9/2015. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Timothy Caughey(Tax Id. 885374 Individually), Kurt Duncan(Shield No. 2483, Individually), William Gough(Tax Id. 919124, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Shantel James(Shield No. 3004 in his official capacity), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), The City Of New York, Timothy Trainer(Tax Id. 899922, in his Official Capacity). (Attachments: # 1 Exhibit Proposed Judgment, # 2 Exhibit Proposed Order of Dismissal)(Scheiner, Alan)

ZACHARY W. CARTER
Corporation Counsel

THE CITY OF NEW YORK

ALAN H. SCHEINER
Senior Counsel
phone: [phone]
fax: [phone]
[e-mail]

LAW DEPARTMENT
100 CHURCH STREET
NEW YORK, NY 10007

October 9, 2015
BY ECF & EMAIL
([e-mail])
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Schoolcraft v. The City of New York, et al.
10-CV-6005 (RWS)
Your Honor:
I am a Senior Counsel in the office of Zachary W. Carter, Corporation Counsel of the
City of New York, assigned to represent City Defendants in the above-referenced matter.
We write to request that the Court enter the Judgment Pursuant to Rule 68 submitted by
the City Defendants on October 7, 2015 (attached as Exhibit A), and enter the attached proposed
Order of Dismissal with Prejudice (attached as Exhibit B).
Plaintiff accepted the Offer of Judgment on September 29, 2015. See Acceptance of Offer
of Judgment, Exhibit A (the “Offer of Judgment”), Docket No. 531. At the conference before
the Court on October 7, 2015,plaintiff objected to the entry of the proposed Judgment, but
plaintiff has expressed no basis for such objection and there is none. The proposed Judgment
simply incorporates the terms of the Offer of Judgment that plaintiff accepted, as anticipated by
Rule 68, which provides that once an Offer of Judgment is accepted, “the clerk must then enter
Judgment.” Fed. R. Civ. P. 68(a).
As this Court has previously held, “the entry of final judgment pursuant to Rule 68 is a
ministerial act that does not require the action of the judge.” Harris v. City of New York, 03 Civ.
8767 (RWS), 2004 U.S. Dist. LEXIS 12879, *2-3 (S.D.N.Y. July 7, 2004) (Sweet, J.) (citations
omitted); see Bowles v. J.J. Schmitt & Co., 170 F.2d 617, 620 (2d Cir. 1948) ("the clerk may
enter final judgment without action of the judge or jury … upon notice of acceptance of an offer
of judgment under rule 68"); Christian v. R. Wood Motors, 91-CV-1348, 1995 U.S. Dist. LEXIS

Sweet, J.
October 9, 2015
Page 2
5560, *15 (N.D.N.Y Apr. 17, 1995) ("Rule 68 judgments are self-executing. Once the parties
agree on the terms of a Rule 68 judgment, the court has no discretion to withhold its entry or
otherwise to frustrate the agreement.") (quotation omitted)).
The Judgment proposed by the City, which was requested by the Court, would
accomplish precisely what the Rule requires: entry of the accepted Offer of Judgment as a
judgment. But in fact no document is required other than the accepted Offer of Judgment filed by
plaintiff, and any objection to entry of the accepted Offer of Judgment as a judgment is frivolous;
under Rule 68, the clerk “must” enter the accepted Offer of Judgment as a judgment. Fed. R. Civ.
P. 68(a).
Plaintiff also objected on October 7, 2015 to an order dismissing the claims against the
individual City-employed defendants, purportedly on the grounds that Judgment was offered
against all the individual City Defendants, and therefore the claims against them are resolved by
Judgment not dismissal. That assertion was contrary to the terms of the Offer of Judgment
accepted by plaintiff, which unambiguously offered judgment only against the City of New
York, as follows:
Pursuant to Rule 68 of the Federal Rules of Civil Procedure,
defendants the City of New York, Michael Marino, Gerald Nelson,
Theodore Lauterborn, William Gough, Frederick Sawyer, Kurt
Duncan, Christopher Broschart, Timothy Caughey, Shantel James,
Timothy Trainor, and FDNY Lieutenant Elise Hanlon (hereinafter
“City Defendants”) hereby offer to allow plaintiff Adrian
Schoolcraft to take a judgment against the City of New York in
this action . . . .
Offer of Judgment at 1.
As to the individual City Defendants and defendant Steven Mauriello, the Offer of
Judgment expressly stated that those defendants were released from any liability by acceptance
of the Offer of Judgment, and plaintiff was released from liability for counter-claims asserted by
defendant Mauriello:
Acceptance of this offer of judgment will act to release and
discharge the City Defendants as well as defendant Steven
Mauriello; their successors or assigns; and all past and present
officials, employees, representatives, and agents of the City of
New York, or any agency thereof, from any and all claims that
were or could have been alleged by plaintiff arising out of the facts
and circumstances that are the subject of this action.
Acceptance of this offer of judgment will act to release and
discharge plaintiff and his successors or assigns from any and all
claims that were or could have been alleged by defendant Steven
Mauriello arising out of the facts and circumstances that are the
subject of this action.

Sweet, J.
October 9, 2015
Page 3
Offer of Judgment at 2-3. The Second Circuit has recognized that an Offer of Judgment against
the City alone and not all individual defendants is valid and effective, and may properly require
that individual defendants against whom judgment is not offered shall be released from liability
as a term of the Offer of Judgment. “Nothing in this language [of Rule 68] appears to require that
the defending party’s (or parties’) offer must permit taking judgment against every defending
party. To the contrary, the Rule provides the defending party with discretion to ‘allow judgment
on specified terms,’ terms which we believe need not include taking judgment against each
defendant.” Stanczyk v. City of New York, 752 F.3d 273, 283 (2d Cir. 2014) (holding that Offer
of Judgment offering judgment only against the City served to bar fees for claims against all
defendants that would have been released by operation of the offer).
The Offer of Judgment here, with precisely the language upheld by the Second Circuit in
Stanczyk, was accepted by plaintiff, and therefore plaintiff unambiguously released all claims
against any present or former City employees in this action, including but not limited to the
individually named City Defendants and Steven Mauriello. The claims against those defendants
accordingly must be dismissed with prejudice, as set forth in the enclosed proposed Order.
We thank the Court for its consideration in this matter.
Respectfully submitted,
/s/
Alan H. Scheiner
Senior Counsel
Special Federal Litigation Division
Encl.
cc:

All counsel by ECF.