Abdelal v. Kelly
OPINION & ORDER: The New Yorker's requests to modify the October 13, 2015 protective order and the August 25, 2016 order granting Plaintiff leave to seal exhibits to his opposition to Defendants' motion for summary judgment are DENIED fo r lack of jurisdiction. If any party aggrieved by this decision, including the New Yorker, "can point to controlling decisions or data that the court overlookedmatters, in other words, that might reasonably be expected to alter the conclusion reached by the court," Shrader v. CSX Transp., Inc., 70 F.3d 255, 25657 (2d Cir. 1995), it may file a motion for reconsideration within 14 days of this decision pursuant to Local Civil Rule 6.3, and as further set forth in this order. (Signed by Magistrate Judge Sarah Netburn on 5/5/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION & ORDER
COMMISSIONER RAYMOND W. KELLY, et al.,
SARAH NETBURN, United States Magistrate Judge:
On April 25, 2017, the Court received a request from the New Yorker magazine to
provide the public and press with access to the December 17, 2015 deposition of former New
York Police Department Commissioner Ray Kelly. ECF No. 136. On May 3, 2017, the New
Yorker magazine sent a similar letter to the Honorable Andrew L. Carter, Jr., ECF No. 135,
requesting access to the same deposition, as well as several other documents filed under seal in
connection with Plaintiff’s opposition to Defendants’ motion for summary judgment. ECF No.
122. 1 This request would require that the Court (1) modify an October 13, 2015 protective order
specifically deeming the Kelly deposition to be confidential and prohibiting its disclosure “to
[any] person or entity not directly involved in this litigation,” ECF No. 73; and (2) modify an
August 25, 2016 Order, ECF No. 118, granting Plaintiff permission to file the documents in
question under seal pursuant to a November 3, 2015 Stipulation and Protective Order, ECF No.
One of the documents requested in the May 3, 2017 letter, pertaining to excerpts from the transcripts of plaintiff
Mohamed Abdelal’s deposition, was not filed under seal and is already publicly accessible. ECF No. 122-12.
Because the New Yorker’s requests are procedurally improper and the Court is without
jurisdiction to hear them following Plaintiff’s filing of a Notice of Appeal on April 21, 2017, the
Court DENIES the New Yorker’s requests without briefing from the parties.
A third party, such as the New Yorker, is entitled to request that the Court modify a
protective order. It may not, however, do so merely by filing an informal request with the Court;
rather, it must file a formal notice of motion to intervene in the case under Federal Rule of Civil
Procedure 24. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 784 (1st Cir. 1985) (court
“[un]willing to create a special category of non-Rule 24 intervention for third parties who wish
to challenge protective orders through informal motion” and held that Rule 24 “intervention is
‘the procedurally correct course’ for third-party challenges to protective orders.”); Martindell v.
Int’l Tel. & Tel. Corp., 594 F.2d 291, 294 (2d Cir. 1979) (“The Government may not, however,
simply by picking up the telephone or writing a letter to the court (as was the case here),
insinuate itself into a private civil lawsuit between others. The proper procedure [was] to seek
permissive intervention in the private action pursuant to Rule 24(b) . . . for the purpose of
obtaining vacation or modification of the protective order.”).
Most courts considering such requests have found that, as suggested by the Court of
Appeals in Martindell, the proper procedure to follow is that of permissive intervention under
Rule 24(b). See Dorsett v. Cty. of Nassau, 289 F.R.D. 54, 71 (E.D.N.Y. 2012) (“[P]ermissive
intervention is the more proper procedural route for intervention by a non-party in a private civil
action for the purpose of vacating or modifying a confidentiality order.”); Diversified Grp., Inc.
v. Daugerdas, 217 F.R.D. 152, 157 (S.D.N.Y. 2003) (“It is well-settled that intervention pursuant
to Rule 24(b) is the proper procedure for a third party to seek to modify a protective order in a
private suit.”); Application of Akron Beacon Journal, No. 94 CIV. 1402 (CSH), 1995 WL
234710, at *5 (S.D.N.Y. Apr. 20, 1995) (construing newspaper’s application to modify a
protective order “as properly made under [Rule] 24(b)(2)”); Beckman Indus., Inc. v. Int’l Ins.
Co., 966 F.2d 470, 473 (9th Cir. 1992) (“Rule 24(b) permits [nonparties] limited intervention for
the purpose of challenging a protective order.”); but see In re NASDAQ Mkt.-Makers Antitrust
Litig., 164 F.R.D. 346, 351 (S.D.N.Y. 1996) (considering request under intervention as of right
standard of Rule 24(a)).
But even if the Court were to construe the New Yorker’s informal requests as a Rule
24(b) motion to intervene or invite the New Yorker to make such a motion, it would be without
jurisdiction to hear such requests at this time because plaintiff filed a Notice of Appeal in this
action on April 21, 2017. To be sure, “[d]ismissal of the underlying action is not dispositive for
motions to intervene for the limited purpose of challenging a protective order,” because the court
“continues to have the power to modify [the] protective order.” Akron Beacon Journal, 1995 WL
234710, at *5. At the same time, “[t]he filing of a notice of appeal is an event of jurisdictional
significance—it confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58 (1982).
The Court of Appeals for the Second Circuit has held that district courts do not retain
jurisdiction to rule on motions to intervene following the filing of a notice of appeal. See
Drywall Tapers & Pointers of Greater New York v. Nastasi & Assocs. Inc., 488 F.3d 88, 94 (2d
Cir. 2007) (“The District Court did not err in denying [a union’s] intervention motion once the
notice of appeal . . . divested the Court of jurisdiction to affect that Order.”). Other courts of
appeals have joined ours in so holding. See Doe v. Pub. Citizen, 749 F.3d 246, 258 (4th Cir.
2014) (holding that “an effective notice of appeal divests a district court of jurisdiction to
entertain an intervention motion”); Taylor v. KeyCorp, 680 F.3d 609, 616 (6th Cir. 2012)
(“[T]he district court was correct to deny the motion to intervene, not because final judgment had
been entered, but because once a notice of appeal was filed, the district court was divested of
jurisdiction."); Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299 (5th Cir. 1984) (“If an
appeal is taken from a judgment which determines the entire action, the district court loses power
to take any further action in the proceeding upon the filing of a timely and effective notice of
appeal. . . . That is the general rule in this Circuit, and it has been applied to motions for
intervention.”); see also Amarin Pharm. Ireland Ltd. v. Food & Drug Admin., 139 F. Supp. 3d
437, 440–41 (D.D.C. 2015) (same).
The Court’s research has not identified a case in which the factual scenario was exactly
identical to this case; that is, where the post-notice of appeal motion of intervention was made by
a media organization for the limited purpose of modifying a protective order. Nevertheless, the
New Yorker’s requests do not fit into any exceptions recognized by the Court of Appeals, which
primarily come into play when the notice of appeal itself is untimely, frivolous, or procedurally
improper. See United States v. Rodgers, 101 F.3d 247, 252 (2d Cir. 1996) (“plainly
unauthorized” notice of appeal did not divest the jurisdiction of the district court); Leonhard v.
United States, 633 F.2d 599, 610–11 (2d Cir. 1980) (notice of appeal from a district court order
that was non-final did not divest the jurisdiction of the district court). As such, the Court is
constrained to deny the New Yorker’s requests for lack of jurisdiction, until such time that the
Court of Appeals has concluded its adjudication of the matter.
The New Yorker’s requests to modify the October 13, 2015 protective order and the
August 25, 2016 order granting Plaintiff leave to seal exhibits to his opposition to Defendants’
motion for summary judgment are DENIED for lack of jurisdiction. If any party aggrieved by
this decision, including the New Yorker, “can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court,” Shrader v. CSX Transp., Inc., 70 F.3d 255, 256–57 (2d Cir. 1995), it may
file a motion for reconsideration within 14 days of this decision pursuant to Local Civil Rule 6.3.
May 5, 2017
New York, New York
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