Gropper v. David Ellis Real Estate, L.P. et al
Filing
16
MEMORANDUM AND ORDER denying 9 Motion to Stay. For the foregoing reasons, the defendants' motion to stay the action (Docket no. 9) is denied. (Signed by Magistrate Judge James C. Francis on 7/29/2013) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
{ECF}
DAN GROPPER,
13 Civ. 2068 (ALC)
Plaintiff,
(JCF)
MEMORANDUM
AND ORDER
- against
--- .-
DAVID ELLIS REAL ESTATE, L.P. and
31 UNION SQUARE WEST, LLC, d/b/a
BLUE WATER GRILL,
---...
-"'~.'~---'----.
USDS SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _ _ _ _ _-;--
Defendants.
1
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
12-"' \13
The plaintiff, Dan Gropper, brings this action against David
Ellis
Estate, L.P. and 31 Union Square West, LLC (d/b/a/ Blue
Water
11), alleging that the defendants denied him access to a
place
of
public
accommodation
violation of 42 U.S.C.
§
(the "ADA"), 42 U.S.C.
§§
§
40i
because
of
his
1985; the Americans with
12181 et
~i
disability
in
sabilities Act
New York Civil Rights Law
the New York State Human Rights Law, N.Y. Exec. Law
and the New York City Human Rights Law, N.Y.C. Admin. Code
§
§
296i
8-101,
The defendants move to stay this action pending the resolution
of a concurrent ADA investigation by the Civil Rights Division of
the United States Department of Justice
reasons that follow,
(the
"DOJ").
the defendants' motion is denied.
1
For the
Background
Mr.
claims
Gropper commenced this action on March 28,
that
the
defendants
requirements
for
making
Blue
conspired
Water
to
Grill,
disregard
a
place
accommodation, accessible to persons with disabilities.
("Compl."),
~
2).
~
injunction,
at
the
of
He
legal
public
(Complaint
His complaint identifies 52 alleged violations.
24)
(Compl.,
2013.
He seeks a
least
declaratory judgment,
$100,000.00 per defendant
a permanent
in compensatory
damages, at least $100,000.00 per defendant in punitive damages,
$500.00 per defendant for each violation, and reasonable attorneys'
(Compl. at 24-25) .
fees.
The DOJ has commenced an investigation of Blue Water Grill's
compliance
with
the
(Memorandum
ADA.
of
Law
Defendants' Motion to Stay ("Def. Memo"), at 1).
claim that the DOJ's inquiry and Mr.
in
Support
of
The defendants
Gropper's allegations are
based on the same purported violations and each seeks the same
injunctive relief.
judicial
resources
(Def. Memo at 1)
and
to
avoid
Citing a need to preserve
inconsistent
results,
the
defendants seek to stay the current action until the resolution of
the DOJ investigation. 1
(Def. Memo at 1).
The defendants allege that the DOJ investigation should
conclude by the end of this summer.
(De f. Memo 2) .
1
2
Discussion
"A stay is not a matter of right .
exerc
It is instead an
of judicial discretion, and the propriety of its issue is
dependent upon the circumstances of the particular case."
Holder,
556 U.S.
418,
citations omitted).
433
(2009)
Nken v.
(internal quotation marks and
Courts may grant a stay of a federal civil
action pending completion of a parallel criminal investigation,
see, e.g., In re Worldcom, Inc. Securities Litigation, Nos. 02 Civ.
3288,
02 Civ.
2002), a paral
4816,
2002 WL 31729501,
1 foreign action,
at *3-4
~~~~~,
(S.D.N.Y. Dec. 5,
Ole Media Management,
L.P. v. EMI April Music, Inc., No. 12 Civ. 7249, 2013 WL 2531277,
at *2 (S.D.N.Y. June 10, 2013), or a parallel state court case, see
General Reinsurance Corp. v. Ciba-Geigy Corp., 853 F.2d 78, 81 (2d
Cir.
same
proceedings are "parallel" when "substantially the
1988).
[parties
are]
litigating
simultaneously in two fora.
substantially
the
same
issues"
Royal and Sun Alliance Insurance Co.
of Canada v. Century International Arms, Inc., 466 F.3d 88, 94 (2d
2006) i
see also Finova Capital Corp.
v.
Ryan Helicopters
U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. 1999).
In the present case, there is no paral
parallel foreign action,
defendants
argue
that
and no paral
the
standard for granting a
Court
1 criminal action, no
1 state court case.
should nevertheless
stay pending completion of
3
apply
a
The
the
parallel
criminal investigation.
(Def. Memo at 5).
However, such stays are
igned to protect the accused person's Fifth Amendment rights,
Volmar Distributors
Inc.
I
v.
New York Post Co.,
F.R.D. 36, 39 ("denying a stay might undermine a
Amendment
privilege
against
self-inc
152
fendant's Fifth
),
and
no
such
rights are implicated in this civil case.
Additionally,
the defendants rely on a
s
of cases
--
Landis v. North American Co., 299 U.S. 248 (1936) i Friarton Estates
Corp.
v.
City of New York,
681
F.2d 150
(2d
Cir.
1982)
i
and
Goldstein v. Time Warner New York City Cable Group, 3 F. Supp. 2d
423 (S.D.N.Y. 1998) -
to argue that the Court has broad authority
to stay an action pending resolution of separate proceedings that
are relevant to the case at hand.
the
defendants
take
those
cases
(Def. Memo at 4-5).
out
of
context:
the
However,
pending
proceedings in those actions were court proceedings, not government
investigations.
Accordingly, they have no bearing on the present
case.
Conclusion
For the foregoing reasons, the defendants' motion to stay the
action (Docket no. 9)
denied. 2
2
Al though there is no legal basis to grant the requested
stay, Mr. Gropper should consider agreeing to delay this action to
allow the DOJ invest
ion to run its course. First, the results
of the investigation may support his case.
Second, he will be
saved from expending resources on a case for which he may
4
0
SO ORDERED.
~ C' ~w..1AJd .TY
AMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:
New York, New York
July 29, 2013
Copies mailed this date to:
Adam S. Hanski, Esq.
H. Parker, Esq.
Parker Hanski LLC
40 Worth St., 10th Floor
New York, NY 10013
Ernest E. Badway, Esq.
Carolyn D. Richmond, Esq.
Rosemary Joyce, Esq.
Fox Rothschild LLP
100 Park Avenue, 15th Fl.
New York, NY 10017
ultimately be unable to recover attorneys' fees.
See Buckhannon
Board and Care Home, Inc. v. West Virginia Department of Health and
Human Resources,
532 U.S. 598,
598 99
(2001)
(holding that
plaintiff was not prevailing party entitled to attorneys' fees
where "defendant's voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the lawsuit,
lack [ed] the necessary judicial
on the change"); J.e. v.
Regional School District 10, Board of Education, 278 F.3d 119, 121
(2d Cir. 2002) (denying award of attorneys'
s where plaintiff's
issues were resolved by committee decision rather than by judicial
sanctions) .
5
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