NRP Holdings LLC et al v. City of Buffalo et al

Filing 174

DECISION AND ORDER granting 161 Motion to Stay Further Discovery. Signed by Hon. Leslie G. Foschio on 11/15/2016. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
NRP HOLDINGS, LLC,
NRP PROPERTIES, LLC,

DECISION
and
ORDER

Plaintiffs,
v.

11-CV-472S(F)
CITY OF BUFFALO,
BYRON W. BROWN,
DEMONE A. SMITH,
CITY OF BUFFALO URBAN RENEWAL AGENCY,
STEVEN M. CASEY,
JOHN DOES 1 - 10, and
JOHN DOE COMPANIES 1 - 5,
Defendants.
_____________________________________
APPEARANCES:

WEBSTER SZANYI, LLP
Attorneys for Plaintiffs
THOMAS S. LANE,
NELSON PEREL,
STEVEN R. HAMLIN, of Counsel
1400 Liberty Building
Buffalo, New York 14202
BARNES & THORNBURG LLP
Attorneys for Defendants City of Buffalo, Byron W. Brown,
Demone A. Smith
MICHAEL A. BATTLE, of Counsel
1717 Pennsylvania Avenue, N.W., Suite 500
Washington, DC 20006
HAGERTY & BRADY
Attorneys for Defendants City of Buffalo, Byron W. Brown,
Demone A. Smith
MICHAEL A. BRADY,
DANIEL J. BRADY, of Counsel
69 Delaware Avenue, Suite 1010
Buffalo, New York 14202

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PERSONIUS MELBER, LLP
Attorneys for Defendant Steven M. Casey
RODNEY O. PERSONIUS, of Counsel
2100 Main Place Tower
Buffalo, New York 14202
HARRIS BEACH LLP
Attorneys for Defendant City of Buffalo Urban
Renewal Agency
RICHARD T. SULLIVAN, of Counsel
Larkin at Exchange
726 Exchange Street, Suite 1000
Buffalo, New York 14210

In this action based on Plaintiffs’ remaining promissory estoppel and RICO claims
arising from Plaintiffs’ ‘pay-to-play’ allegations against Defendants City of Buffalo (“the
City” or “City”), Brown, Casey and Smith (sued in their official capacities as mayor, deputy
mayor and common councilmember, respectively) in connection with a failed low-income
housing project, Defendants City, Brown and Smith (“Moving Defendants”), move for a
protective order pursuant to Fed.R.Civ.P. 26(c), staying further discovery, including a
Rule 30(b)(6) deposition of the City (Dkt. 161), pending disposition of Moving Defendants’
recently filed summary judgment motion (Dkt. 152) asserting legislative and qualified
immunity and New York state substantive law (“Defendants’ motion”). Defendant Casey,
who now has separate counsel, has not joined in the summary judgment motion or
Moving Defendants’ motion. Defendant Buffalo Urban Renewal Agency, which also has
moved for summary judgment (Dkt. 165), joins in Moving Defendants’ motion.
It is well-established that the purpose of immunity, i.e., even if a party has engaged
in actionable misconduct, the party is immune from both suit and liability, is to insulate a
defendant from the expense and inconvenience associated with litigation of claims for
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which a defendant may, under applicable law, be immune. See Harlow v. Fitzgerald,
457 U.S. 800, 814 (1982). Courts are therefore admonished not to proceed with
discovery in a pending motion until an issue of immunity has been resolved. See
Anderson v. Creighton, 483 U.S. 635, 653 n. 5 (1987) (“‘until this threshold immunity
question is resolved, discovery should not be allowed’”) (quoting Harlow, 457 U.S. at
818-19).1 Here, whether Defendants’ motion to stay further discovery has, as Plaintiffs
contend, been waived, Dkt. 171 at 6-7, through Defendants’ arguable tardiness in
bringing such motion, is an argument to be addressed by Judge Skretny before whom
Moving Defendants’ summary judgment is pending. Further, if Plaintiffs determine
further discovery, pursuant to Fed.R.Civ.P. 56(d), including, for example, obtaining Casey
and other City officials’ affidavits or depositions, is necessary to oppose Moving
Defendants’ summary judgment motion, such request must also be directed to Judge
Skretny. Accordingly, Defendants’ motion should be GRANTED.2

1 Although Moving Defendants in their summary judgment motions assert qualified and legislative
immunity, qualified immunity does not extend to a municipality such as Defendant City, see Lynch v. Ackley,
811 F.3d 569, 579 n. 11 (2d Cir. 2016) (citing Owen v. City of Independence, 445 U.S. 622, 637-38 (1980)),
and legislative immunity is likewise limited to local officials sued in their official capacities. See State
Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 86 (2d Cir. 2007); see also Goldberg v.
Town of Rocky Hill, 973 F.2d 70, 74 (2d Cir. 1992) (municipality liable for unconstitutional acts of its
legislature even though the legislators themselves are protected by absolute immunity). Legislative
immunity has been held to extend to RICO claims. See Rini v. Zwirn, 886 F.Supp. 270, 296 (E.D.N.Y.
1995). Thus, even assuming the individual City Defendants could not, based on New York substantive
law, be subject to personal liability on Plaintiffs’ promissory estoppel claims (as opposed to the City based
on the conduct of the individual City Defendants and other non-parties) such issue remains open, and
because Plaintiffs sued only the individual City Defendants on Plaintiffs’ RICO claims, seeking Defendants’
personal liability, see Dkt. 44 ¶ 151, as long as Plaintiffs’ promissory estoppel and RICO claims against
these Defendants remain in the case a stay of discovery would nevertheless be required.
2 It is therefore also unnecessary to address Moving Defendants’ contention that Plaintiffs’ Rule 30(b)(6)
notice warrants protective order relief.
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CONCLUSION
Based on the foregoing, Defendants’ motion (Dkt. 161) is GRANTED.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: November 15, 2016
Buffalo, New York

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