Schulz et al v. State of New York et al
| Robert L. Schulz and Anthony Futia, Jr. |
| State of New York, Andrew Cuomo, John J. Flanagan, Thomas DiNapoli, Carl E. Heastie, Andrea-Stewart Cousins and Brian Kolb |
| 1:2019cv00056 |
| January 16, 2019 |
| US District Court for the Northern District of New York |
| Therese Wiley Dancks |
| Glenn T Suddaby |
| Constitutional - State Statute |
| 28 U.S.C. § 1343 Violation of Civil Rights |
| Plaintiff |
Docket Report
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Filing 19
ORDER of USCA denying Pro Se Plaintiff's motion to stay the district court's February 12, 2019 scheduling order. (jdp, )
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| Filing 18 MEMORANDUM OF LAW IN RESPONSE to Defendant's #14 Motion to Dismiss/Lack of Subject Matter Jurisdiction, filed by Anthony Futia, Jr, Robert L. Schulz. (Attachments: #1 Affidavit of Service)(jdp, ) |
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TEXT ORDER advising the parties that the Court retains, and will continue to exercise, jurisdiction over this action despite the fact that Plaintiffs filed a Notice of Appeal with the Second Circuit on 2/26/19 from this Court's Text Order of 2/12/19 because that appeal is clearly defective in that the Order appealed from is not final and has not been certified as an interlocutory appeal. See Leonhard v. U.S., 633 F.2d 599, 610 (2d Cir. 1980); In re Chateaugay Corp., 922 F.2d 86, 91 (2d Cir. 1990); U.S. v. Rodgers, 101 F.3d 247, 252 (2d Cir. 1996); Burger King Crop. v. Horn & Hardart Co., 893 F.2d 525, 527 (2d Cir. 1990); U.S. vs. Zedner, 555 F.2d 68 (2d Cir. 2008). For these reasons, all deadlines to file a response/reply to the pending motions remain in full effect. SO ORDERED by Chief Judge Glenn T. Suddaby on 2/28/19. (lmw) (Copy served upon pro se plaintiffs via regular mail)
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| Filing 17 ELECTRONIC NOTICE AND CERTIFICATION sent to US Court of Appeals re #16 Notice of Appeal. (jdp, ) |
| Filing 16 NOTICE OF APPEAL by Robert L. Schulz. Filing fee $ 505, receipt number ALB011265. (jdp, ) |
| TEXT NOTICE advising the parties that the Court will decide Plaintiffs' second motion for decision when it decides Defendants' motion to dismiss for lack of subject-matter jurisdiction. #14 Defendants' Motion to Dismiss and #15 Plaintiff's Second Motion for Reconsideration are set for 3/21/19 on submission of motion papers before Chief Judge Glenn T. Suddaby. No personal appearance. Plaintiffs' Response to Defendants' Motion to Dismiss due by 3/4/2019. Defendants' Reply to Plaintiff's Response to Motion to Dismiss/Response to Plaintiffs' Second Motion for Reconsideration due by 3/11/2019. No reply to Plaintiff's Second Motion for Reconsideration is permitted without prior approval of the Court for good cause shown. (lmw) (Copy served upon pro se plaintiffs via regular mail) |
| Filing 15 SECOND NOTICE OF MOTION AND MOTION for Reconsideration re 10 Order on Motion for Summary Judgment, filed by Robert L. Schulz. (Attachments: #1 Affidavit in Support of Motion, #2 Memorandum of Law, #3 Certificate of Service) (jdp, ) |
| TEXT NOTICE on #14 MOTION to Dismiss for Lack of Subject Matter Jurisdiction/Failure to State a Claim: Motion set for 3/21/2019 on submission of motion papers before Chief Judge Glenn T. Suddaby. No personal appearance. Plaintiffs' Response to Motion due by 3/4/2019. Defendants' Reply to Response to Motion due by 3/11/2019. (lmw)(Copy served upon pro se plaintiffs via regular mail) |
| Filing 14 First MOTION to Dismiss for Lack of Subject Matter Jurisdiction , First MOTION to Dismiss for Failure to State a Claim Motion Hearing set for 3/21/2019 10:30 AM in Syracuse before Chief Judge Glenn T. Suddaby Response to Motion due by 3/4/2019 Reply to Response to Motion due by 3/11/2019. filed by Andrea-Stewart Cousins, Andrew Cuomo, Thomas DiNapoli, John J. Flanagan, Carl E. Heastie, Brian Kolb, State of New York. (Attachments: #1 Memorandum of Law in Support of Motion to Dismiss Complaint in Its Entirety, #2 Declaration of Service) (Liberati-Conant, Christopher) |
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Filing 13
TEXT ORDER denying #11 Plaintiffs' motion for reconsideration. The first error asserted by Plaintiffs neither constitutes a clear error or law nor results in manifest injustice because (a) authority exists for the point of law that a Rule 56(d) affidavit is not always required before a Rule 56(d) ruling (see, e.g., Haddock v. Nationwide Fin. Servs. Inc., 419 F. Supp.2d 156, 160 n.2 [D. Conn. 2006]), and (b) Plaintiffs have not shown that they have been prejudiced by a denial of their motion without prejudice (see generally Dkt. No. #11 ). The second error asserted by Plaintiffs neither constitutes a clear error of law nor results in manifest injustice because, unlike Defendants' Rule 7.1 Response and supporting record evidence, Defendants' Answer may narrow the scope of Plaintiffs' contested claims and allegations, and thus obviate the need for the briefing and decision of at least some aspects of a motion for summary judgment. In the alternative, the Court finds that Plaintiffs' motion for summary judgment would have been denied on the merits. Plaintiffs did not appear to meet their threshold burden with regard to their Second Cause of Action for the following two reasons: (1) Paragraphs 6, 9, 10 and 11 of their Rule 7.1 Statement rely on citations to record evidence that does not appear to support all of the fact asserted in those paragraphs; and (2) Paragraphs 12, 13 and 14 of their Rule 7.1 Statement rely on citations to record evidence that is inadmissible in that it is conclusory, argumentative and/or not based on personal knowledge. (Dkt. No. #8 , Attach. 1, at 6, 9-11, 12-14 [Plfs.' Rule 7.1 Statement].) Similar defects appeared to exist with regard to Plaintiffs' other claims. (See, e.g., id. at 19-21, 27-31, 33, 35-36.) SO ORDERED by Chief Judge Glenn T. Suddaby on 2/5/19. (lmw) (Copy served upon pro se plaintiffs via regular mail)
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| Filing 12 CERTIFICATE OF SERVICE by Robert L. Schulz re #11 MOTION for Reconsideration re 10 Order on Motion for Summary Judgment. (jdp, ) |
| Filing 11 MOTION for Reconsideration re 10 Order on Motion for Summary Judgment filed by Anthony Futia, Jr, Robert L. Schulz. (Attachments: #1 Affidavit, #2 Memorandum of Law) (jdp, ) |
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Filing 10
TEXT ORDER denying without prejudice #8 Plaintiffs' motion for summary judgment as premature. A pre-answer motion for summary judgment by a plaintiff is, while permissible under Fed. R. Civ. P. 56(b), disfavored for several reasons. One of those reasons is that, because discovery is not complete (and indeed has not yet even started), the likelihood of a meritorious challenge pursuant to Fed. R. Civ. P. 56(d) is significant. Another reason is that answer may be part of the record for purposes of a summary judgment motion. Fed. R. Civ. P. 56(c)(1)(A); N.D.N.Y. L.R. 7.1(a)(3). After carefully considering the matter, including the nature of the factual assertions in Plaintiffs' Rule 7.1 Statement, the Court finds that their motion is premature. See Fed. R. Civ. P. 56 Advisory Committees Notes (2010 Amendments Subdivision (b)) (Although [Federal Rule of Civil Procedure 56] allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had.); Frederick v. Capital One Bank, N.A., 14CV5460, 2015 WL 5521769, at *12 (S.D.N.Y. Sept. 17, 2015) (denying plaintiffs motion for summary judgment as premature where the defendant had not yet filed an answer). SO ORDERED by Chief Judge Glenn T. Suddaby on 1/28/19. (lmw) (Copy served upon pro se plaintiffs via regular mail)
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| Filing 9 Pro Se Notice signed by Mr. Schulz. Filed at the counter on 1/24/2019. Mr. Schulz indicated today that he did want a copy of the Local Rules and Pro Se Handbook. Pro Se Plaintiff was provided a copy. (jdp, ) |
| Filing 8 Motion for Summary Judgment Response to Motion due by 2/19/2019 Reply to Response to Motion due by 2/26/2019. Motion Hearing set for 3/7/2019 10:00 AM in Syracuse before Chief Judge Glenn T. Suddaby (Attachments: #1 Statement of Material Facts, #2 Memorandum of Law, #3 Affidavit in Support of Motion, #4 Affidavit of Service)(jdp, ) Modified on 1/25/2019 (jdp, ). |
| ***Answer due date updated for Andrea-Stewart Cousins answer due 2/6/2019; Andrew Cuomo answer due 2/6/2019; Thomas DiNapoli answer due 2/6/2019; John J. Flanagan answer due 2/6/2019; Carl E. Heastie answer due 2/6/2019; Brian Kolb answer due 2/6/2019; State of New York answer due 2/6/2019. (jdp, ) |
| Filing 7 AFFIDAVIT of Service for Complaint, Supporting Affidavit, General Order 25 and Summoons served on Thomas DiNapoli, State of New York, Andrew Cuomo, Andrea Stewart-Cousins, Carl Heastie, Brian Kolb and John J. Flanagan on 1/16/2019, filed by Anthony Futia, Jr. and Robert L. Schulz. (jdp, ) |
| Filing 6 PRO SE NOTICE issued with copy of Lawyer Referral Guide enclosed. (served on pro se parties via regular mail.) (sg) |
| Filing 5 Summons Issued as to Andrew Cuomo. (jdp, ) |
| Filing 4 Clerk provided pro se plaintiff with a copy of all filed documents. Pro se plaintiff indicated to the clerk that he did not need the Local Rules or pro se handbook. (jdp, ) |
| Filing 3 G.O. 25 FILING ORDER ISSUED: Rule 16 Initial Conference set for 5/1/2019 at 10:00 AM by telephone before Magistrate Judge Therese Wiley Dancks. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 4/24/2019. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (jdp, ) |
| Filing 2 Summons Issued as to Andrea-Stewart Cousins, Brian Kolb, Thomas DiNapoli, John J. Flanagan, Carl E. Heastie, State of New York. (Attachments: #1 Summons, #2 Summons, #3 Summons, #4 Summons, #5 Summons)(jdp, ) |
| Filing 1 COMPLAINT WITH JURY DEMAND against Andrea-Stewart Cousins, Andrew Cuomo, Thomas DiNapoli, John J. Flanagan, Carl E. Heastie, State of New York (Filing fee $400 receipt number ALB011228) filed by Robert L. Schulz, Anthony Futia, Jr. (Attachments: #1 Exhibit(s), #2 Civil Cover Sheet)(jdp, ) |
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