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)

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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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