J.L. v. New York City Department of Education et al

Filing 269

ORDER granting 268 Letter Motion for Extension of Time to File. The deadline for Defendant's cross-motion and opposition is extended from Friday, July 7, 2023 to Friday, September 8, 2023. The deadline for Plaintiffs' opposition and re ply is extended from Friday, July 28, 2023 to Friday, September 29, 2023. The deadline for Defendants' reply is extended from Friday, August 18, 2023 to Friday, October 20, 2023. Oral argument on the motions for summary judgment will take plac e on Thursday, November 9, 2023 at 10:00 a.m. in Courtroom 17-D, U.S. Courthouse, 500 Pearl Street, New York, NY. No further requests for extension of the briefing schedule will be entertained absent a showing of good cause. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 7/6/2023) (mml)

Case 1:17-cv-07150-PAC-KHP Document 269 Filed 07/06/23 Page 1 of 4

7/6/2023

T HE CITY OF NEW YORK

HON. SYLVIA O. HINDS-RADIX
Corporation Counsel

LAW DEPARTMENT
100 CHURCH STREET
NEW YORK, NY 10007

PHILIP S. FRANK
Phone: [phone]
Fax: [phone]
[e-mail]
(not for service)

July 5, 2023
By ECF
Honorable Katharine H. Parker
United States District Court
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: J.L., et al. v. NYC Dep’t of Education, et ano.,
No. 17-CV-7150 (PAC) (KHP)
Your Honor:
I am the Assistant Corporation Counsel in the Office of the Corporation Counsel of
the City of New York assigned to represent Defendants New York City Department of Education
(“DOE”) and DOE Chancellor David C. Banks in the above-referenced matter, in which Plaintiffs,
parents on behalf of three students, allege that their rights were violated due to alleged systemic
delays in providing coordinated nursing, transportation, and porter services.
I write to respectfully request an extension of time for Defendants to serve and file
their cross-motion for summary judgment and opposition to Plaintiffs’ motion. This is
Defendants’ first request for an extension.
As background, by Order dated July 14, 2022 (ECF No. 225), the Court ordered,
inter alia, Plaintiffs to file their motion for summary judgment by October 14, 2022. Plaintiffs,
however, did not timely file their summary judgment motion by October 14, 2022, and they failed
to request an extension. By Order dated March 21, 2023 (ECF No. 235), nearly six months after
Plaintiffs’ deadline had passed, the Court noted that Plaintiffs had not filed their partial summary
judgment motion as to liability. The Court directed the parties to file a joint status letter advising
the Court how they would like to proceed, and by Order dated March 28, 2023 (ECF No. 237), the
Court endorsed the parties proposed new briefing schedule (ECF No. 236), which included
Plaintiffs’ motion due by April 28, 2023. On April 28, 2023, Plaintiffs served Defendants their

Case 1:17-cv-07150-PAC-KHP Document 269 Filed 07/06/23 Page 2 of 4

motion for default judgment and for partial summary judgment as to liability and filed their Notice
of Motion (ECF No. 240). Plaintiffs, therefore, received a six-and-a-half month extension of time,
from October 14, 2022 until April 28, 2023, to draft and serve their summary judgment motion.
By letter dated April 28, 2023 (ECF No. 239), Plaintiffs also filed a motion to file
under seal the entirety of their remaining motion papers, including their memorandum of law,
declarations, and all exhibits. On April 28, 2023, the same day as Plaintiffs served their moving
papers, Defendants filed their Answer to the Amended Complaint (ECF No. 242), thereby
rendering moot Plaintiffs’ motion for default judgment. By Orders dated May 1, 2023 (ECF No.
243) and May 5, 2023 (ECF No. 245), the Court directed the parties to discuss in good faith the
need to file certain documents under seal. The Court further directed Plaintiffs to file a revised
motion to seal in the event these discussions led to a more narrowly-tailored motion. The Court’s
May 5, 2023 Order also sua sponte granted a brief, approximately one-week extension of the
briefing schedule, with Defendants’ cross-motion and opposition due by July 7, 2023; Plaintiffs’
opposition and reply due by July 28, 2023; and Defendants’ reply due by August 18, 2023. On
May 10, 2023 (ECF No. 252), Plaintiffs withdrew their motion for default judgment and filed their
amended motion for summary judgment only. Following the parties’ meet and confer and
extensive review of Plaintiffs’ voluminous exhibits and motion papers, on June 5, 2023 (ECF No.
261), more than one month after Plaintiffs’ initially filed their moving papers, Plaintiffs filed a
more narrowly-tailored motion to seal.
There are several reasons for the requested enlargement. As an initial matter, since
the filing of Plaintiffs’ summary judgment motion, Defendants have expended a significant amount
of time and resources in reviewing Plaintiffs’ lengthy motion papers and voluminous exhibits in
order to meet and confer with Plaintiffs in efforts at ensuring that Plaintiffs’ motion to file under
seal portions of their motion was more narrowly tailored and appropriate. Defendants also have
had to spend this time in clawing back a number of Plaintiffs’ exhibits as privileged, and in
responding to Plaintiffs’ motion to compel two of those clawed-back exhibits. Indeed, Defendants
closely reviewed Plaintiffs’ more than 150 exhibits, multiple declarations, memorandum of law,
and 56.1 Statement. Following this detailed review, on June 1, 2023 and June 2, 2023, Defendants
clawed back portions of six of the exhibits attached to Plaintiffs’ motion on the grounds that they
were privileged under the attorney-client privilege and the work product doctrine. Defendants also
proposed redactions to the memorandum of law and the 56.1 Statement for Plaintiffs’ revised
motion to seal. By letter dated June 12, 2023 (ECF No. 262), Plaintiffs moved to compel two of
the six clawed-back documents. And by letter dated June 30, 2023, Defendants opposed Plaintiffs’
motion to compel and enclosed the two clawed-back documents to the Court in camera. Such time
and efforts spent by Defendants on ensuring the appropriateness of Plaintiffs’ motion to file under
seal and on motion practice for the clawed-back documents have significantly impacted and taken
time away from Defendants’ ability to work on their own motion papers.
Another reason for the requested extension is due to unforeseen professional
obligations and emergencies I have had in other matters as both an attorney handling cases
assigned to me and as a supervisor of a team of attorneys in this office. In particular, an attorney
I supervise unexpectedly went out on emergency medical leave, starting on June 13, 2023. During
his absence, I have had to manage his large caseload and cover a number of his cases, including
seeking extensions of court-ordered deadlines, supervising the drafting of motion papers, and
preparing for a settlement conference in another high-profile litigation seeking to reform DOE
-2-

Case 1:17-cv-07150-PAC-KHP Document 269 Filed 07/06/23 Page 3 of 4

policies. I have also had to work on an emergency motion for a temporary restraining order in
another matter during the past weeks. The extension of time, therefore, will enable Defendants to
expend the necessary time and effort in reviewing the record in this matter, in which Defendants
produced approximately 50,000 documents in e-discovery, with multiple depositions. The
enlargement also will enable Defendants to draft and serve their opposition papers and crossmotion, including the drafting of additional affidavits by DOE staff, and to meet and confer with
Plaintiffs regarding the filing of any documents under seal in advance of the filing deadline.
Finally, the length of the extension accounts for the summer schedules of both
myself and of the DOE principal stakeholders necessary for the drafting of the motion papers, as
well as preparations by DOE staff for the commencement of the new school year in September.
The allegations in Plaintiffs’ Amended Complaint concern multiple offices within the DOE, and
Defendants’ opposition papers and cross-motion require input and review from all these offices,
including the Office of General Counsel, the Special Education Office, the Office of School
Health, and the Office of Pupil Transportation. August and early September usually consist of the
busiest time of the year for these DOE offices and their principal stakeholders as they prepare for
school to commence in September. I also will be supervising a team that is taking and defending
approximately 16-20 depositions in a case during July and August, and I subsequently will be out
of the office on annual leave from August 21, 2023 until September 1, 2023. The extension of
time, therefore, will provide my office and the DOE principal stakeholders sufficient time in
drafting and reviewing the motion papers, including affidavits, during this busy period.
Plaintiffs’ counsel objects to the instant request on the grounds that: (1) the Court
previously sua sponte granted a one-week extension of the briefing schedule to allow for the
sealing issues; (2) there were only a limited number of clawed-back documents for the parties to
address; (3) Defendants previously have requested extensions of time during discovery, causing
undue delay; and (4) the timing of the request is late as Defendants agreed to the schedule in March
2023, previously knew about summer and vacation schedules, and counsel knew about some of
the professional obligations in mid-June. Plaintiffs, however, will not be prejudiced by the
requested extension. Indeed, Plaintiffs, themselves, received a six-and-a-half-month extension to
serve and file their motion papers, and Plaintiffs failed to timely request an extension prior to the
initial deadline for their motion papers. Such undue delay by Plaintiffs belies any claim of
prejudice here.
Accordingly, Defendants respectfully request a 75-day extension of time, from July
7, 2023 until September 20, 2023, to serve and file their opposition and cross-motion for summary
judgment. Defendants also respectfully request a corresponding extension of time of the briefing
schedule as follows:
Defendants’ cross-motion and opposition:

September 20, 2023

Plaintiffs’ opposition and reply:

October 11, 2023

Defendants’ reply:

November 1, 2023

-3-

Case 1:17-cv-07150-PAC-KHP Document 269 Filed 07/06/23 Page 4 of 4

I thank the Court for its consideration of the within.
Respectfully submitted,
s/
Philip S. Frank
Assistant Corporation Counsel
cc:

All counsel (via ECF)

The deadline for Defendant's cross-motion and opposition is extended from Friday, July 7, 2023 to Friday,
September 8, 2023. The deadline for Plaintiffs’ opposition and reply is extended from Friday, July 28, 2023 to
Friday, September 29, 2023. The deadline for Defendants’ reply is extended from Friday, August 18, 2023 to
Friday, October 20, 2023. Oral argument on the motions for summary judgment will take place on Thursday,
November 9, 2023 at 10:00 a.m. in Courtroom 17-D, U.S. Courthouse, 500 Pearl Street, New York, NY.
No further requests for extension of the briefing schedule will be entertained absent a showing of good cause.

7/6/2023

-4-