M.G. et al v. New York City Department of Education et al

Filing 417

ORDER denying 416 Motion for Reconsideration re 416 MOTION for Reconsideration re; 415 Scheduling Order. filed by New York State Education Department, Shannon Tahoe. The request for reconsideration is denied. The State Defen dants have not raised anything new or previously overlooked by the Court. While the State Defendants claim great prejudice from the three-month extension necessitated principally by the City Defendants' discovery failures, there would be far gr eater prejudice to the class members if the extension were denied. That said, as State Defendants aptly point out, and as the Court previously has emphasized, class counsel has the responsibility to devote the resources necessary to properly represen t the class. The extension may not be used to broaden discovery but rather only to address existing document discovery issues, take depositions if any, and issue requests for admission if any. Notwithstanding the Court's "last and final&quo t; directive in June 2023 (Dkt. 392), which fell by the wayside due to unforeseen medical and other issues, the June 28, 2024 deadline is last and final as to all parties and will not be excused under any circumstances, whether foreseen or not. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 2/23/2024) (mml)

2/23/2024
STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES
ATTORNEY GENERAL

DIVISION OF STATE COUNSEL
LITIGATION BUREAU

February 22, 2024
Via ECF
Honorable Robert W. Lehrburger
United States Magistrate Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
RE:

M.G., et al. v. N.Y. City Dep’t of Educ., et al., 13-cv-4639 (SHS) (RWL)

Your Honor:
We write on behalf of the State Defendants1 to request reconsideration of the Court’s
decision to extend the discovery schedule in this action by three months for all parties. See Order,
Feb. 14, 2024, ECF No. 415. As described below, the extension was not warranted by the
circumstances and serves only to reward Plaintiffs’ counsel’s continued failure to abide by both
Your Honor’s directives and their obligations as class counsel to prosecute this action efficiently
and appropriately. That failure has greatly prejudiced the State Defendants, who are entitled to a
resolution of this decade-old matter. We therefore respectfully request that the fact discovery
deadline as to the State Defendants be returned to the prior date of March 31, 2024.
I.

Relevant Background

As the Court is well-aware, this action is over ten years old. The parties have been engaged
in discovery for several years and the Court has been generous in its consideration of the parties’
circumstances. However, as the Court stated exactly three years ago, “this case has lingered too
long and needs to find its way to resolution.” See Order, Feb. 16, 2021, ECF No. 336. Accordingly,
on April 19, 2023, the Court issued a final scheduling Order, pursuant to which document
discovery was to be substantially completed by September 29, 2023 and fact discovery was to be
completed by January 31, 2024. See Order, Apr. 19, 2023, ECF No. 388.
In issuing this final scheduling Order, the Court stated as follows: “These deadlines are
ample, realistic, and generous, particularly in light of the history of this case. The Court has taken
into account that counsel for all parties have faced issues regarding health, family, and/or loss of
1

The State Defendants are the New York State Education Department (“SED”) and the Commissioner of SED.
28 Liberty Street, New York, New York 10005 ● Tel.: [phone] ● http://www.ag ny.gov

Hon. Robert Lehrburger
February 22, 2024

Page 2 of 5

key personnel, collectively which give rise to extraordinary circumstances for a substantial further
extension of the case schedule. But that extension will be last and final. All parties must devote
the requisite resources to this case. There will be no further extensions of discovery.” Id. Despite
this unambiguous directive, Plaintiffs requested a conditional extension of the discovery schedule
two months later, which was firmly rejected by the Court: “Request denied… ‘last and final’ meant
‘last and final.’” See Order, June 26, 2023, ECF No. 392.
The State Defendants, as well as their attorneys in this Office, took Your Honor’s
directives very seriously, and worked hard to comply with those “last and final” deadlines. SED
collected voluminous, up-to-date electronic files from several custodians and this Office spent all
summer reviewing that material to meet the September 29, 2023 substantial completion deadline,
making productions on April 28, September 5, and September 29, 2023. Additionally, this Office
was forced to spend considerable resources – over $30,000 in State funds – to hire contract
attorneys to redact FERPA-protected material by the then January 31, 2024 fact-discovery
deadline, making a further production of such material on December 21, 2023. Had we known that
Plaintiffs’ counsel was not taking Your Honor’s orders seriously, and that the discovery schedule
would be extended several times as a result, this Office could have avoided those costs entirely by
seeking a FERPA waiver, which is a several months long process that was impossible under the
existing schedule.
In stark contrast to the State Defendants’ efforts to comply with the Court’s deadlines,
Plaintiffs’ counsel repeatedly waits until the last minute before focusing on discovery and then
asks this Court to excuse them from their obligations. For example, Plaintiffs’ counsel waited until
March 10, 2023 to ask the Court to extend the March 31, 2023 fact-discovery deadline because
“all of the federal attorneys from” Elisa Hyman’s firm “had health-related and/or serious familyhealth issues starting in July 2022.” See Letter, March 10, 2023, ECF No. 381. Similarly, after
Your Honor issued the “last and final” April 19, 2023 discovery schedule, Plaintiffs’ counsel
waited until a week before the September 29, 2023 substantial completion deadline to request a
protective order that would allow them to produce entire student files, including hearing records,
without doing the work of reviewing the files and culling non-responsive material. See Letter, Sept.
22, 2023, ECF No. 394. A few months later, on December 6, 2023, Plaintiffs’ counsel relayed a
new host of health and personal problems that allegedly made it impossible for them to comply
with the January 31, 2024 fact discovery deadline. See Letter, Dec. 6, 2023 at 2, ECF No. 403.
This latest request for an extension was ultimately granted, over the State Defendants’ objections
and despite the Court’s stated “reluctance to grant any further extensions,” because “the Court
[was] persuaded that the unanticipated extraordinary accumulation of medical issues affecting
counsel at both firms representing Plaintiffs warrants an extension.” See Order, Dec. 13, 2023,
ECF No. 40. Accordingly, the Court granted a two-month extension of the discovery schedule,
pursuant to which the deadline to complete fact discovery was March 31, 2024. Id.
Significantly, as part of the justification for seeking that extension, Plaintiffs’ counsel
stated that she would be filing a motion to compel against the State Defendants before the
upcoming December 2023 holidays. See Letter, Dec. 6, 2023. More than two months have passed
since Plaintiffs’ counsel made that representation, and no such motion to compel has materialized.
Indeed, as of the date hereof, Plaintiffs’ counsel has not even raised any issues or asked to meet
and confer about any of the State Defendants’ 2023 document productions. Indeed, in the two

Hon. Robert Lehrburger
February 22, 2024

Page 3 of 5

months since their request for an extension was granted, Plaintiffs have not conducted any
discovery in this case at all.
II.

The February 14, 2024 Extension

On November 9, 2023, Plaintiffs requested permission to file a motion to compel against
the City Defendants.2 Letter, Nov. 9, 2023, ECF 399. The Court granted Plaintiffs’ request, set a
briefing schedule, and stated that “[t]he Court will schedule a hearing to discuss the issues raised
in the briefing after briefing is complete.” Order, Nov. 16, 2023. Plaintiffs and the City Defendants
thereafter received several extensions of time to complete their briefing, and the hearing was
scheduled for February 13, 2024.3 See Notice of Hearing, Dec. 21, 2023.
Given this procedural posture, most of the February 13, 2024 conference was spent
addressing Plaintiff’s pending motion to compel against the City Defendants. During that
discussion, Plaintiffs’ counsel raised certain issues regarding discovery from the City Defendants
and the possibility of an extension of the discovery schedule was raised. Since those issues had
nothing to do with the State Defendants, we asked the Court to limit any discovery-schedule
extension only as to the City Defendants. It was at that point that Plaintiffs’ counsel stated that she
intends to file a motion to compel against the State Defendants, more than two months after she
first claimed that she was planning to do so by the December 2023 holidays. Plaintiffs’ counsel
did not and has not identified any substantive deficiencies with the State Defendants’ productions,
has not sought to meet and confer, and even struggled to answer when Your Honor asked how
long she needed to file the motion. Your Honor ultimately gave Plaintiffs until March 1, 2024 to
file their motion, and then extended the discovery schedule as to the State Defendants as well. See
Order, Feb. 14, 2024, ECF No. 415. Pursuant to the new schedule, the fact discovery deadline as
to all parties was extended by three months, from March 31, 2024 to June 28, 2024. Id.
The State Defendants now request that the Court reconsider its decision and return the fact
discovery deadline as to the State Defendants to the prior date of March 31, 2024.
III.

Reconsideration is Appropriate

Motions for reconsideration are justified where there is a need to correct a clear error or
prevent manifest injustice, like undue delay. See Peoples v. Fischer, 898 F. Supp. 2d 618, 623
(S.D.N.Y. 2012) (“A motion for reconsideration may [] be granted to correct a clear error or
prevent manifest injustice.”). As discussed above, Plaintiffs’ failure to take the Court’s Orders
seriously and their continued dilatory conduct has greatly prejudiced the State Defendants. See
generally Bartula v. Kurtz, 2022 WL 4800550, at *3 (W.D.N.Y. Oct. 3, 2022) (noting that the
continued delay of a lawsuit was inherently prejudicial to the defendant); E.L.A. v. Abbott House,
Inc., 2021 WL 3230686 at *2 (S.D.N.Y. July 29, 2021) (dismissing case for failure to prosecute
2

The City Defendants are the New York City Department of Education, the New York City Board of Education, and
the Chancellor of the New York City School District.
The State Defendants understand that the Court’s clerk contacted Plaintiffs and the City Defendants to schedule the
date of the hearing. The State Defendants were not contacted (and only learned of the conference when the notice
appeared on the docket), presumably because the motion at issue did not involve the State Defendants at all.
3

Hon. Robert Lehrburger
February 22, 2024

Page 4 of 5

where Plaintiff engaged in dilatory behavior and failed to comply with Court orders during the
discovery phase of the lawsuit).
Plaintiffs’ counsel’s conduct is particularly inexcusable because as class counsel they are
held to a higher standard. Under the Federal Rules, attorneys and law firms cannot serve as class
counsel unless they are able to commit the resources necessary to represent the class. See Fed. R.
Civ. P.23(g)(2) (The “court may appoint” class counsel “only if the applicant is adequate under
Rule 23(g)(1) and (4)”); Fed. R. Civ. P. 23(g)(1)(A)(iv) (in appointing class counsel, the court
must consider things such as “the resources that counsel will commit to representing the class”).
Plaintiffs’ counsel submitted a declaration to this Court, claiming that they met these standards.
See Declaration, June 25, 2015, ECF No. 94. The declaration included Ms. Hyman’s representation
that she served as lead or co-counsel in over eight federal class actions and a nearly 70-page resume
from her co-counsel, Robbins Geller Rudman & Dowd LLP. In the resume, Robbins Geller claims
to be a 200-lawyer firm with offices in 10 cities. It reads: “The Firm’s unparalleled experience and
capabilities in” various fields “are based upon the talents of its attorneys, who have successfully
prosecuted thousands of class action lawsuits and numerous individual cases.” It lists scores of
public funds, multi-employer clients, and international investors, including government
organizations, among its clients. Today, it claims to have the most “prominent securities class
action attorneys in the country.” See Securities Fraud, Robbins Geller Rudman & Dowd LLP,
https://www.rgrdlaw.com/services-litigation-securities-fraud.html. And boasts on its website that
it was recently awarded one of Law360’s 2023 “Class Action Groups of the Year.” See Rae Ann
Varona, Class Action Group of the Year, Robbins Geller Rudman & Dowd LLP (Feb. 9, 2024),
https://www.rgrdlaw.com/news-awards-Class-Action-Group-Of-The-Year-Robbins-Geller.html.
One of the key purposes of the Federal Rules’ requirement that class counsel expend
sufficient resources is to ensure that the personal circumstances of a few attorneys do not interfere
with the prosecution of class actions. Indeed, as the Court noted three years ago, “The Court
recognizes the reasons for the request and has granted previous requests based on those
considerations, but they cannot continuously be invoked; indeed, parties to other complex
litigations have managed to proceed apace and meet deadlines notwithstanding similar concerns.”
See Order, Feb. 16, 2021. It is for that reason that the Court explicitly directed the parties to “devote
the requisite resources to this case.” See Order, April 19, 2023.
It does not appear that Plaintiffs’ counsel has heeded these directives. Despite the
capabilities and accolades listed in the class counsel declaration described above, Plaintiffs’
counsel appears unable or unwilling to prosecute this decade-old case in a timely fashion, seeking
extension after extension of the Court’s more than generous deadlines over the course of many
years. More recently, Plaintiffs’ counsel claimed that the health issues of a single Robbins Geller
attorney and the bereavement leave of a second-year associate at Ms. Hyman’s firm made it
impossible to comply with Court-ordered discovery deadlines. See Letter, Dec. 6, 2023 at 2. As
the State Defendants expressed at the time, they are deeply sympathetic to the issues previously
faced by Plaintiffs’ attorneys, but as class counsel, they must be able to devote the resources
necessary to prosecute this case on behalf of the class in accordance with the Court’s orders. And
Plaintiffs’ latest extension – which the State Defendants now ask the Court to reconsider – was not
accompanied by any justification at all. Indeed, Plaintiffs still have not explained why they failed
to conduct any discovery in this case in the two months since their December 2023 request for an