Cunningham v. Cornell University et al

Filing 458

ORDER: denying 457 Letter Motion for Extension of Time to File. Application DENIED. The filing of a certiorari petition is not a reason to forgo the taxation of costs, recognizing that subsequent events could cause the need for a further revision of the taxed costs. SO ORDERED. (Signed by Judge P. Kevin Castel on 1/29/2024) (ama)

Case 1:16-cv-06525-PKC-JLC Document 457 Filed 01/26/24 Page 1 of 2

January 26, 2024
By ECF
Hon. P. Kevin Castel
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007-1312
Re:

Application DENIED. The filing of a certiorari petition is
not a reason to forgo the taxation of costs, recognizing
that subsequent events could cause the need for a further
revision of the taxed costs.
SO ORDERED.
Dated: 1/29/24

Cunningham v. Cornell University, No. 1:16-cv-6525-PKC
Letter motion to extend deadline to object to Defendants’ Bills
of Costs and to adjourn cost proceedings pending disposition of
potential petition for writ of certiorari

Dear Judge Castel:
Pursuant to Rule I.C of Your Honor’s Individual Practices, Plaintiffs respectfully
move the Court for an adjournment of the date on which the Clerk may tax costs
and extension of the due date for Plaintiffs’ objections to Defendants’ Bills of Costs,
currently February 2, 2024, until the later of 14 days after the March 19, 2024 due
date for a petition for writ of certiorari (i.e., April 2, 2024) or the final disposition of
any petition. This date has not previously been extended. Defendants have no
objection to this request.
The Second Circuit issued its opinion affirming this Court’s judgment on November
14, 2023, and denied rehearing on December 20, 2023. Cunningham v. Cornell
Univ., 86 F.4th 961 (2d Cir. 2023); Dkt. No. 302 in 2d Cir. No. 21-88. Accordingly,
the due date for any petition for a writ of certiorari is March 19, 2024, 90 days after
the date of the denial of rehearing. See S. Ct. R. 13.3.
On January 19, 2024, Defendant CAPTRUST and the Cornell Defendants filed
separate notices of taxation and bills of costs. Dkt. Nos. 453–55. The accompanying
docket text for each filing states: “The Clerk may tax costs 14 days after this filing.
Objections to Bill of Costs due by 2/2/2024.” Dkt. Nos. 453–54.
Plaintiffs are considering a petition for a writ of certiorari. Among other potential
grounds for review, the Second Circuit acknowledged that its opinion implicates a
circuit conflict regarding the scope of ERISA’s prohibited transaction provisions and
related pleading standards. Cunningham, 86 F.4th at 973–78. Because further
proceedings could affect the finality of the judgment and assessment of costs, an

Case 1:16-cv-06525-PKC-JLC Document 457 Filed 01/26/24 Page 2 of 2

Cunningham v. Cornell Univ.,
No. 16-6525
January 26, 2024
Page 2

adjournment is appropriate until all potential appeals are resolved. See L. Civ. R.
54.1(a) (“Costs will not be taxed during the pendency of any appeal.”).
For these reasons, Plaintiffs respectfully request that the Court continue the date
on which the Clerk may tax costs and extend the due date for Plaintiffs’ objections
to Defendants’ Bills of Costs from February 2, 2024 until the later of April 2, 2024
(14 days after the March 19, 2024 due date for a petition for writ of certiorari) or the
final disposition of any such petition. Plaintiffs will promptly notify the Court of the
filing of any petition and its disposition.
Respectfully submitted,

Joel D. Rohlf
SCHLICHTER BOGARD LLP
[e-mail]