Schoolcraft v. The City Of New York et al

Filing 629

ENDORSED LETTER addressed to Judge Robert W. Sweet from Alan H. Scheiner dated 5/3/2016 re: Request to adjourn argument. ENDORSEMENT: Adjournment of argument denied. Surreply permitted. (Signed by Judge Robert W. Sweet on 5/4/2016) (spo)

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JUDGE SWEET CHAMBERS

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I 00 CHURCH STREET
NEW YORK, NY I 0007

ALAN H. SCHEINE R
Senior Counsel
phone: [phone]
fax: [phone]
ascheine@law. nyc .gov

BY ECF & EMAIL
(Talia [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. City of New York, 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, representing the motion respondent City of New York (the "City"), in
connection with the above-captioned matter.
I write to respectfully request an adjournment of the oral argument date on plaintiffs fee
application from May 12, 2016 to some date after May 13, 2016, and to request leave to file a
14-page surrepply Memorandum of Law on May 13, 2016, in opposition to plaintiffs fee
application, in light of plaintiff s multiple submissions of April 29, 2016 and May 2, 2016. In
those submissions, plaintiffs counsel - all purporting to represent the same plaintiff - filed
submissions in three groups, with the Smith group filing a 38 page Reply Memorandum
accompanied by three argumentative declarations totaling 32 pages; the Norinsberg group filing
a 59 page Reply Memorandum accompanied by 19 exhibits; and the Gilbert group filing on May
2, 2016 a 14 page argumentative Affirmation (apparently in lieu of a Memorandum). Thus,
plaintiff s Reply submission totaled 143 pages of argument.
Plaintiffs filing was made without a ruling on plaintiffs counsel' s prior application to
file multiple and oversize submissions. In partial opposition to that application, the City did not
oppose an oversize submission ofreasonable size (to be determined at the Court's discretion),
but did object to multiple submissions by a single plaintiff and noted that the City could be
prejudiced by an oversize submission due to the oral argument date of May 12, 2016. To cure
that prejudice, the City noted that it may be required to request adjournment of the oral argument
to allow a reasonable time to review and prepare to respond to the submission, and that the City

Sweet, J.
May 3, 2016
Page 2
might request leave to file a written surreply. See City Letter of April 27, 2016 (Docket No.
618). If the Court accepts plaintiffs oversize and multiple submissions, the City should not be
prejudiced thereby.
Plaintiff includes within his submission several points that were not raised in plaintiffs
moving Memorandum of Law. Both the Smith and Norinsberg groups make the new argument
that the Rule 68 obligates the City under contract law to pay legal fees incurred in prosecuting
claims against the private medical defendants who were not parties to the Rule 68 settlement,
even if that would be contrary to the requirements of 42 U.S.C. § 1988 on which plaintiffs
motion had previously relied. See Norinsberg Reply Memorandum at 13-14 (Docket No. 624 );
Smith Reply Memorandum at 9-11 (Docket No. 620); compare Notice of Motion (Docket No.
559) ("pursuant to ... 42 U.S.C. § 1988").
The Smith and Norinsberg groups also make a new argument asserting that they are
entitled to 9% interest under state law on attorneys' fees and expenses, under the theory that
plaintiffs attorneys fees claim is grounded on state contract law and not 42 U.S.C. § 1988.
Norinsberg Reply Memorandum, at 58 n. 31; Smith Reply Memorandum at 36 n. 31. The Smith
group also seeks fees-on-fees for the fees and costs incurred in prosecuting the attorneys' fees
application, which was not sought in plaintiffs moving papers. Smith Reply Memorandum at
35-36. The City should be allowed the opportunity to respond in writing to these new matters.
Plaintiffs counsel also included at least four additional pages of argument that the City's
proffered expert testimony should be excluded, in further support of their motion to strike (while
stating an intent to file even more briefing on that issue in Reply, although date for Reply
briefing has been set). See Norinsberg Reply Memorandum at 6-1 O; Smith Reply Declaration at
4-6. That portion of plaintiffs submission is in the nature of a supplemental moving
Memorandum, to which the City should be entitled to make a supplemental opposition to be
included in the surreply. 1 The City also respectfully requests the opportunity to include in its 14page surreply any argument necessary to address additional new case law and new factual
assertions presented for the first time on Reply.
The City also requires additional time solely to prepare for oral argument in light of the
sheer volume of plaintiffs Reply papers and new matters asserted therein.
The City has emailed with plaintiffs counsel about this request, and plaintiffs counsel
refused to agree to any adjournment of the oral argument date or any surreply on any issue.
For the foregoing reasons, the City respectfully requests that the oral argument date be
briefly adjourned and that that the City be permitted until May 13, 2016 to file a 14-page
surreply to plaintiffs submission to address the new matters set forth above. The City
1

The City will file its opposition in response to the plaintiff's initial motion to strike the Bronsther declaration and
Audit Report today, as scheduled.

Sweet, J.
May 3, 2016
Page 3
respectfully requests that oral argument be scheduled on a date to follow May 13, 2016 that will
allow the Court sufficient time to consider all the submissions. 2
We thank the Court for its consideration of this matter.
Respectfully submitted,
/s/
Alan H. Scheiner
Senior Counsel
Special Federal Litigation Division
cc:

2

All counsel by ECF

The oral argument date for the plaintiffs fee application was previously adjourned three times. First, the date was
adjourned to allow time for the parties to participate in a settlement conference with Magistrate Judge Freeman.
Docket No . 586. Second, after the settlement conference was concluded, the oral argument date was adjourned upon
consent of the parties due to the unavailability of the City's counsel from April 20, 2016 through May I, 2016.
Docket No. 610. Third, the date was adjourned upon consent of the parties in light of plaintiff's request for
additional time to file their Reply papers. Docket No . 614. In addition, the date was moved forward by one day at
the request of plaintiff due to plaintiff's unavailability. Docket No. 612.