Davis v. Whillheim et al

Filing 122

ORDER granting 121 Letter Motion for Extension of Time to File. Application GRANTED. City Defendants must file and serve their renewed motion on or before January 13, 2020. Plaintiff's opposition, if any, shall be due on February 28, 2020. Defendants' reply, if any shall be due March 27, 2020. No further extensions will be granted. (Signed by Judge Katherine Polk Failla on 12/6/2019) (rro)

MEMO ENDORSED
THE CITY OF NEW YORK

LAW DEPARTMENT

JAMES E. JOHNSON

100 CHURCH STREET
NEW YORK, NY 10007

PHILIP S. FRANK
phone: [phone]
fax: [phone]
email: [e-mail]

December 6, 2019
BY ECF & EMAIL
Honorable Katherine Polk Failla
United States District Judge
Southern District of New York
40 Foley Square
New York, New York 10007
[e-mail]
Re: Kent Davis v. The City of New York, et al., 17-CV-5793 (KPF)
Dear Judge Failla:
I am the attorney in the office of the Corporation Counsel of the City of New
York assigned to represent Defendants City of New York and Crystal Pierre (collectively, “City
Defendants”) in the above-referenced matter, wherein Plaintiff alleges that his parental rights
were violated as the result of the removal of his daughter on or about February 23, 2008,
stemming from Plaintiff’s having repeatedly stabbed the child’s mother in front of the then threeyear-old child. I write to respectfully request an extension of time for City Defendants to serve
and file their renewed motion to dismiss the remaining state law claims.
On July 20, 2018, City Defendants moved to dismiss the Amended Complaint
pursuant to Fed. R. Civ. P. 12(b)(6). By Opinion and Order dated February 26, 2019, Your
Honor dismissed all of Plaintiff’s federal claims against City Defendants. (Dkt. No. 93). The
Court denied without prejudice City Defendants’ motion to dismiss the state law claims or, in the
alternative, not to exercise supplemental jurisdiction over the state law claims on the
understanding that if, after the remaining Defendants (Gloria Avery, Erica Willheim, and Amy
Milano, none of whom are City employees) had appeared, or had their cases otherwise resolved
by dismissal or default judgment proceedings, no federal claims remained, City Defendants
could renew their motion. (Id.) By letter dated October 3, 2019, City Defendants respectfully
requested permission to renew their motion to dismiss the remaining state law claims, or, in the
alternative for the Court to decline to exercise supplemental jurisdiction over the state law
claims. (Dkt. No. 109). By Order dated October 4, 2019, the Court set a briefing schedule for
City Defendants’ renewed motion to dismiss, with City Defendants’ moving papers currently due
on December 9, 2019. (Dkt. No. 114).

I respectfully request that the Court grant City Defendants a 35-day extension of
time, or to January 13, 2020, to serve and file their renewed motion. The reason for the
requested enlargement is due to multiple motions, conferences, and discovery obligations that I
have at the beginning of this month, as well as an oral argument scheduled for this week that I
was not aware of at the time the current briefing schedule was set. As a result I am unable to
finish drafting the City Defendants’ contemplated motion at this time. 1
This is City Defendants’ first request for an extension of time to serve and file
their motion papers. I have not been able to speak with Plaintiff to obtain his consent to this
request because Plaintiff, who is proceeding pro se, has not listed his telephone number on the
docket.
I thank the Court for its consideration of this request.

Respectfully submitted,
/s/
Philip S. Frank
Assistant Corporation Counsel
cc:

All counsel of record (via ECF)
Mr. Kent Davis (via first class mail)
Plaintiff Pro Se
123 West 135th St, 5C
Manhattan, New York 10030

Application GRANTED. City Defendants must file and serve their
renewed motion on or before January 13, 2020. Plaintiff's
opposition, if any, shall be due on February 28, 2020.
Defendants' reply, if any shall be due March 27, 2020. No
further extensions will be granted.
SO ORDERED.

Dated: December 6, 2019
New York, New York
HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE
1

I acknowledge that on behalf of other City Defendants in another matter, I submitted a similar
request to the Court on the same basis.

2