ABC v. DEF

Filing 434

ORDER: The Court today held a conference with counsel to address the status of the settlement process in this case, in which defendants' liability has been established and upheld by the United States Court of Appeals for the Second Circuit an d the sole outstanding issues to be tried are the damages due to each of the three plaintiffs. At the conference, it became apparent that the Court's personal intervention is necessary to assure that appropriate and urgent attention is given t o this matter by decision-makers at DOCCS and the NYAG, as it has been more than three months since the settlement was first reported to the Court, and more than two months since the settlement was submitted for approval to state decision-makers. In particular, it appears that state decision-makers may not appreciate the possibilityabsent a settlementof a prevailing-party fee award in this case under 42 U.S.C. § 1988 that, independent of any damages award by the jury, could quite sign ificantly outstrip the amount of the negotiated settlement. The Court accordingly schedules a conference in this case for March 9, 2021, at 10:30 a.m., in courtroom 1305 at the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, NY, 10007, for the purpose of discussing settlement. To assure that the conference is effective, the Court orders that the following four persons attend the conference in person. All other counsel are to participate telephonically. Those counsel, and members of the public who wish to attend this conference, should call [phone] and enter access code 468-4906, followed by the pound (#) sign. All in-person participants will be required upon appearance at the courthouse to satisfy the Districts protocols for entry. These are available at https://www.nysd.uscourts.gov/covid-19-coronavirus, and in Standing Order 21 Misc. 164, available at that link. All in-person participants are to promptly review these protocols to assure that, o n March 9, 2021, they will be able to gain entry to the courthouse. In the event that the settlement agreement reported to the Court has received final approval before March 9, 2021, the Court will adjourn the conference. It will otherwise go forw ard as scheduled. (And as further set forth herein.) SO ORDERED. (Telephone Conference set for 3/9/2021 at 10:30 AM in Courtroom 1305, 40 Centre Street, New York, NY 10007 before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 2/26/2021) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHN DOE and JANE DOE, Individually and on behalf of
M.S. an Infant, as Next Friends,
14 Civ. 2953 (PAE)
Plaintiff,
ORDER

-vJOSEPH LIMA, Bureau Chief of the Manhattan
VI Area Office of the New York State Division of Parole;
Parole Officer EMILY SCOTT; Parole Officer SIMON
VALERIO; Senior Parole Officer RICHARD ROSADO;
and Senior Parole Officer JAMES CAPPIELLO,
Defendants.
PAUL A. ENGELMAYER, District Judge:

The Court today held a conference with counsel to address the status of the settlement
process in this case, in which defendants’ liability has been established and upheld by the United
States Court of Appeals for the Second Circuit and the sole outstanding issues to be tried are the
damages due to each of the three plaintiffs. The Court did so having been informed by the
Honorable James L. Cott, United States Magistrate Judge, that final approval has not been
received from the New York State Department of Corrections and Community Supervision
(“DOCCS”) and the Office of the New York Attorney General (“NYAG”) of the settlement
terms reached in November 2020 under Judge Cott’s oversight after extensive discussions with
counsel for all parties, including representatives of DOCCS and the NYAG.
At the conference, it became apparent that the Court’s personal intervention is necessary
to assure that appropriate and urgent attention is given to this matter by decision-makers at
DOCCS and the NYAG, as it has been more than three months since the settlement was first

reported to the Court, and more than two months since the settlement was submitted for approval
to state decision-makers. In particular, it appears that state decision-makers may not appreciate
the possibility—absent a settlement—of a prevailing-party fee award in this case under 42
U.S.C. § 1988 that, independent of any damages award by the jury, could quite significantly
outstrip the amount of the negotiated settlement.
The Court accordingly schedules a conference in this case for March 9, 2021, at 10:30
a.m., in courtroom 1305 at the Thurgood Marshall United States Courthouse, 40 Centre Street,
New York, NY, 10007, for the purpose of discussing settlement. To assure that the conference is
effective, the Court orders that the following four persons attend the conference in person:
(1) plaintiffs’ counsel Blair Albom, Esq.; (2) either Lawrence Henry Schaefer, Esq., or another
of the counsel for the individual defendants, with authority to speak for all; (3) Cathy Sheehan,
Esq., of DOCCS, whom the Court understands to be DOCCS’s acting deputy commissioner; and
(4) a representative of the NYAG with responsibility for this case and who holds the position of
bureau chief or higher. All other counsel are to participate telephonically. Those counsel, and
members of the public who wish to attend this conference, should call [phone] and enter
access code 468-4906, followed by the pound (#) sign. All in-person participants will be
required upon appearance at the courthouse to satisfy the District’s protocols for entry. These
are available at https://www.nysd.uscourts.gov/covid-19-coronavirus, and in Standing Order
21 Misc. 164, available at that link. All in-person participants are to promptly review these
protocols to assure that, on March 9, 2021, they will be able to gain entry to the courthouse.
To assure that notice of this conference is promptly received by the DOCCS and NYAG
participants, the Court orders Mr. Schaefer today, by email, to serve this order on Ms. Sheehan
of DOCCS and the representatives of the NYAG with whom settlement discussions have been
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held, and thereafter to file a letter on the docket of this case confirming that receipt of these
emails has been acknowledged.
In the event that the settlement agreement reported to the Court has received final
approval before March 9, 2021, the Court will adjourn the conference. It will otherwise go
forward as scheduled.
SO ORDERED.

PaJA.�

____________________________
Paul A. Engelmayer
United States District Judge

Dated: February 26, 2021
New York, New York

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