DiMartile et al v. Cuomo et al
| David Shamenda, Pamella Giglia, Jenna M. DiMartile, Justin G. Crawford and Joe Durolek |
| Erie County Department of Health, Empire State Development Corporation, Letitia James, Mark Poloncarz and Andrew M. Cuomo |
| 1:2020cv00859 |
| July 31, 2020 |
| US District Court for the Northern District of New York |
| Albany Office |
| Christian F Hummel |
| Glenn T Suddaby |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Plaintiff |
Docket Report
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Filing 39
ORDER of USCA issued on 9/8/2020 as to #24 Notice of Appeal. Appellants move for a stay pending appeal of the district court's August 7, 2020 preliminary injunction barring them from enforcing a fifty-person limit on the size of gatherings against the Plaintiffs at their wedding. Appellees oppose a stay. Upon due consideration, it is hereby ORDERED that the motion is GRANTED and the preliminary injunction is STAYED. See In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007). It is further ORDERED that this matter be placed on an expedited calendar. The Clerk of Court is directed to set a briefing schedule in consultation with the parties.(mgh)
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Filing 38
ORDER of USCA as to #24 Notice of Appeal issued on 8/21/2020. Upon consideration, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the State's motion for an emergency stay is GRANTED, to the extent that the district court's preliminary injunction is stayed until the next available motions panel can hear the motion for a stay pending appeal.(mgh)
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Filing 37
DECISION AND ORDER that the State Defendants' motion for a stay of the preliminary injunction order pending appeal (Dkt. No. #27 ) is DENIED. Plaintiffs' cross-motion for sanctions (Dkt. No. #31 ) is DENIED. Signed by Chief Judge Glenn T. Suddaby on 8/19/2020. (sal )
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Filing 36
TRANSCRIPT of Proceedings: Motion Hearing (by video) held on 8/19/2020 before Judge Glenn T. Suddaby, Court Reporter/Transcriber: Eileen McDonough, Telephone number: 315-234-8546. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/9/2020. Redacted Transcript Deadline set for 9/21/2020. Release of Transcript Restriction set for 11/17/2020. Notice of Intent to Redact due by 8/24/2020 (etm, )
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Filing 35
TRANSCRIPT REQUEST by Justin G. Crawford, Jenna M. DiMartile, Joe Durolek, Pamella Giglia, David Shamenda for proceedings held on 8/19/2020 before Judge Glenn T. Suddaby.. (Oswald, Phillip)
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Filing 34
TRANSCRIPT REQUEST by Andrew M. Cuomo, Empire State Development Corporation, Letitia James for proceedings held on 8/19/2020 before Judge Suddaby.. (Kerwin, Adrienne)
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TEXT Minute Entry for proceedings held before Chief Judge Glenn T. Suddaby: Motion Hearing held on 8/19/2020 re #27 Emergency Motion for Temporary Restraining Order for a stay pending appeal filed by Letitia James, Andrew M. Cuomo, and Empire State Development Corporation; and #31 Cross-Motion for Sanctions and in Opposition to Defendants' Motion to Stay filed by Justin G. Crawford, David Shamenda, Pamella Giglia, Joe Durolek, Jenna M. DiMartile. After hearing oral argument from counsel, Chief Judge Suddaby RESERVES DECISION at this time. A written decision will be forthcoming. APP: R. Anthony Rupp, III, Esq. and Phillip A. Oswald, Esq. for Plaintiffs. Adrienne J. Kerwin, AAG for NYS Defendants. Michelle Parker, Esq. for Erie County Defendants. Time: 10:33 AM -11:45 AM. (Court Reporter Eileen McDonough). (sal )
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Filing 33
Witness List by Andrew M. Cuomo, Empire State Development Corporation, Letitia James. (Kerwin, Adrienne)
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Filing 32
REPLY to Response to Motion re #27 Emergency MOTION for Temporary Restraining Order for stay pending appeal filed by Andrew M. Cuomo, Empire State Development Corporation, Letitia James. (Attachments: #1 Declaration of Daniel Nevins, #2 Exhibit(s) to Nevins Declaration, #3 Declaration of Emily Kokotos)(Kerwin, Adrienne)
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TEXT NOTICE reminding the parties that the proceeding scheduled for 10:30 a.m. on Wednesday August 19, 2020, is a "hearing," pursuant to which the parties will be free to supplement the record evidence adduced by them (including the testimony of their own declarants) and/or to cross-examine the opposing parties' declarants, should they so choose. To the extent they choose not to do so, the Court will rely on the declarations and exhibits submitted thus far. (sal )
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Filing 31
Cross MOTION for Sanctions and in Opposition to Defendants' Motion to Stay Motion Hearing set for 9/8/2020 10:30 AM in Syracuse before Chief Judge Glenn T. Suddaby Response to Motion due by 8/24/2020 Reply to Response to Motion due by 8/28/2020. filed by Justin G. Crawford, Jenna M. DiMartile, Joe Durolek, Pamella Giglia, David Shamenda. (Attachments: #1 Declaration of Phillip Oswald in support of Cross Motion for Sanctions and in Opposition to Defendants' Motion to Stay, #2 Exhibit(s) A-E to Declaration of Phillip Oswald, #3 Declaration of Lucas James, #4 Declaration of George Delgado, M.D., #5 Memorandum of Law in support of Cross Motion for Sanctions and in Opposition to Defendants' Motion to Stay) (Oswald, Phillip)
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Filing 30
TEXT ORDER: With respect to any request made by the public to access the hearing scheduled for August 19, 2020 via Skype for Business, in civil cases, the public may access the hearing by viewing the video proceeding in a designated area of the U.S. Courthouse in Syracuse, New York or Albany, New York, and MAY NOT record any part of the hearing. Judicial Conference policy generally prohibits the broadcasting of proceedings in federal trial courts (JCUS-SEP 94, pp. 46-47; Guide to Judiciary Policy, Vol. 10, Ch. 4). The Executive Committee of the Judicial Conference, however, has approved a temporary exception to the policy to allow a judge to authorize the use of viewing the video proceeding in a designated area of the the U.S. Courthouse to provide the public and the media audio access to court proceedings. SO ORDERED by Chief Judge Glenn T. Suddaby on 8/17/2020. (sal )
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Filing 29
TEXT ORDER : A hearing on the #27 Emergency Motion for a Temporary Restraining Order filed by Defendants Andrew M. Cuomo, Empire State Development Corporation, and Letitia James shall be held at 10:30 AM on Wednesday, August 19, 2020 before Chief Judge Glenn T. Suddaby via Skype for Business. The Court's deputy clerk will contact the parties with details pertaining to the use of Skype for Business. SO ORDERED by Chief Judge Glenn T. Suddaby on 8/17/2020. (sal )
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Filing 28
TEXT ORDER denying #27 Defendants' application for an Order to Show Cause and reserving decision on #27 Defendants' motion for a Temporary Restraining Order pending completion of expedited briefing. Defendants' application for an Order to Show Cause is denied because its Supporting Attorney Declaration fails to show good cause why the standard Notice of Motion procedure (albeit expedited somewhat) cannot be used, as required by Local Rule 7.1(e) of the Local Rules of Practice for this Court. Plaintiffs' response papers are due by 5:00 P.M. on MONDAY, AUGUST 17, 2020. Defendants' reply papers are due by 5:00 P.M. on TUESDAY, AUGUST 18, 2020. The Court will sua sponte schedule a hearing on Defendants' motion for a Temporary Restraining Order should it determine that oral argument and/or witness testimony is necessary. Because Defendants have submitted declarations in support of their motion, Plaintiffs, in their response papers, are invited to submit declarations, including the following: (1) a declaration from one of the venue's two co-owners reporting on whether he or his staff observed any violations of the Governor's restrictions on dining at restaurants during the DiMartile-Crawford wedding and reception, and assuring the Court that, to the best of his efforts and the efforts of his staff, there will be no violations of the Governor's restrictions on dining at restaurants during the Giglia-Durolak wedding and reception; (2) a declaration from each of Plaintiffs Giglia and Durolak that she/he will not violate, or encourage or tolerate the violation of, the Governor's restrictions on dining at restaurants during their wedding and reception; and (3) a similar such declaration from the parents of Plaintiffs Giglia and Durolak, and from as many guests as possible. SO ORDERED by Chief Judge Glenn T. Suddaby on 8/12/2020. (sal)
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Filing 27
Emergency MOTION for Temporary Restraining Order for stay pending appeal by Andrew M. Cuomo, Empire State Development Corporation, Letitia James. (Attachments: #1 Declaration of Adrienne Kerwin, #2 Exhibit(s) to Kerwin declaration, #3 Declaration of Howard Zucker, #4 Declaration of Michael Bass, #5 Exhibit(s) to Bass declaration, #6 Memorandum of Law)(Kerwin, Adrienne)
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Filing 26
TRANSCRIPT of Proceedings: Motion Hearing held on 8/7/2020 before Judge Glenn T. Suddaby, Court Reporter: Jodi L. Hibbard, Telephone number: (315) 234-8547. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/1/2020. Redacted Transcript Deadline set for 9/11/2020. Release of Transcript Restriction set for 11/9/2020. Notice of Intent to Redact due by 8/17/2020 (jlh, )
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Filing 25
ELECTRONIC NOTICE AND CERTIFICATION sent to US Court of Appeals re #24 Notice of Appeal. (mgh)
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Filing 24
NOTICE OF APPEAL as to #20 Order on Motion for TRO,,,, Order on Motion for Preliminary Injunction,,, by Andrew M. Cuomo, Empire State Development Corporation, Letitia James. Filing fee $ 505, receipt number ANYNDC-5201013. (Kerwin, Adrienne)
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Filing 23
NOTICE of Appearance by Adrienne J. Kerwin on behalf of Andrew M. Cuomo, Empire State Development Corporation, Letitia James (Kerwin, Adrienne)
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Filing 22
TRANSCRIPT REQUEST by Andrew M. Cuomo, Empire State Development Corporation, Letitia James for proceedings held on 8/7/2020 before Judge Glenn T. Suddaby.. (Attachments: #1 Appendix Form AO 435)(Buckley, Denise) Modified on 8/10/2020 to reflect that the hearing was held on Friday August 7th, 2020(mgh).
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Filing 21
TEXT ORDER waiving the requirement of security. The Court finds that Plaintiffs need not give security under the circumstance, given (1) the absence of discernible monetary costs and damages sustained by Defendants if it is found they have been wrongfully enjoined, and (2) the fact that Defendants never requested such security. SO ORDERED by Chief Judge Glenn T. Suddaby on 8/7/2020. (sal)
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Filing 20
DECISION AND ORDER that Plaintiffs' motion for a preliminary injunction (Dkt. No. #4 ) is GRANTED. Defendants are PRELIMINARILY ENJOINED from enforcing the above-referenced 50-person limit (under Executive Order 202.45 and attendant regulations, guidance, and directives) against Plaintiffs in the operation of their weddings at the above-referenced venues. In holding their weddings, Plaintiffs are required to comply at all times with the relevant health and safety precautions that have been outlined by the State related to the operations of restaurants, including (but not limited to) not having a gathering of individuals that is more than 50-percent of the relevant venue's capacity. Signed by Chief Judge Glenn T. Suddaby on 8/7/2020. (sal )
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Filing 19
NOTICE by Andrew M. Cuomo, Empire State Development Corporation, Letitia James re #4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction (Attachments: #1 Attachment)(Kerwin, Adrienne)
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Filing 18
NOTICE of Appearance by R. Anthony Rupp, III on behalf of All Plaintiffs (Rupp, R.)
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Filing 17
AFFIDAVIT of Service for Motion for Preliminary Injunction, Complaint with exhibits and memorandum of law via U.S. Mail served on Defendants on August 3, 2020, filed by Justin G. Crawford, Jenna M. DiMartile, Joe Durolek, Pamella Giglia, David Shamenda. (Oswald, Phillip)
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TEXT NOTICE regarding #19 State Defendants' Notice. Briefing has closed on Plaintiffs' motion and no extension of the briefing schedule has been granted (or even requested by the State Defendants). In any event, the Notice (including the representation that the attached Cease-and-Desist Order was served "late" on August 6, 2020) is not in evidentiary form (nor was it even referenced during the preliminary injunction hearing). As a result, the Notice does not warrant consideration. (sal )
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TEXT Minute Entry for proceedings held before Chief Judge Glenn T. Suddaby: Motion Hearing held on 8/7/2020 re #4 Motion for Preliminary Injunction filed by Plaintiffs, and #11 & #14 Responses in Opposition to Motion for Preliminary Injunction filed by Defendants. After hearing oral argument from counsel, Chief Judge Suddaby RESERVES DECISION at this time. A decision will be forthcoming. APP: R. Anthony Rupp, III, Esq. for Plaintiff, Denise Buckley, AAG for New York State Defendants, and Michelle Parker, Esq. for Erie County Defendants. Time: 10:45 AM - 12:40 PM. (Court Reporter Jodi Hibbard). (sal )
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Filing 16
REPLY to Response to Motion re #11 MOTION to Dismiss for Failure to State a Claim and in opposition to the motion for preliminary injunction Supplemental Declaration to withdraw 1983 argument filed by Erie County Department of Health, Mark Poloncarz. (Parker, Michelle)
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Filing 15
RESPONSE to Motion re #11 MOTION to Dismiss for Failure to State a Claim and in opposition to the motion for preliminary injunction, #14 MOTION to Dismiss for Failure to State a Claim and for lack of Personal Jurisdiction, #4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Justin G. Crawford, Jenna M. DiMartile, Joe Durolek, Pamella Giglia, David Shamenda. (Attachments: #1 Exhibit(s) Text Order, #2 Exhibit(s) Affidavits of Service, #3 Exhibit(s) E-Mail Exchange, #4 Exhibit(s) Ms. Mazeau's LinkedIn page, #5 Memorandum of Law Memorandum of Law in Reply)(Oswald, Phillip) Modified on 8/6/2020 (mgh, ).
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Filing 14
MOTION to Dismiss for Failure to State a Claim and for lack of Personal Jurisdiction filed by Andrew M. Cuomo, Empire State Development Corporation, Letitia James. (Attachments: #1 Declaration of Denise P. Buckley, #2 Declaration of Adrienne V. Mazeau, #3 Memorandum of Law in opposition to Plaintiffs' motion for a preliminary injunction and in support of the State Defendants' cross-motion to dismiss the Complaint) (Buckley, Denise) Modified on 8/5/2020 to remove briefing schedule - Hearing set for 8/7/20 at 10:45 AM via Skype for Business (sal).
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Filing 13
TEXT ORDER: With respect to any request made by the public to access the hearing scheduled for August 7, 2020 via Skype for Business, in civil cases, the public may access the hearing by viewing the video proceeding in a designated area of the U.S. Courthouse in Syracuse, New York or Albany, New York, and MAY NOT record any part of the hearing. Judicial Conference policy generally prohibits the broadcasting of proceedings in federal trial courts (JCUS-SEP 94, pp. 46-47; Guide to Judiciary Policy, Vol. 10, Ch. 4). The Executive Committee of the Judicial Conference, however, has approved a temporary exception to the policy to allow a judge to authorize the use of viewing the video proceeding in a designated area of the the U.S. Courthouse to provide the public and the media audio access to court proceedings. SO ORDERED by Chief Judge Glenn T. Suddaby on 8/5/2020. (sal )
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Filing 12
TEXT ORDER : A hearing on Plaintiffs' #4 Motion for a Preliminary Injunction is shall be held at 10:45 AM on Friday, August 7, 2020 before Chief Judge Glenn T. Suddaby via Skype for Business. The Court's deputy clerk will contact the parties with details pertaining to the use of Skype for Business. SO ORDERED by Chief Judge Glenn T. Suddaby on 8/5/2020. (sal )
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Filing 11
MOTION to Dismiss for Failure to State a Claim and in opposition to the motion for preliminary injunction filed by Erie County Department of Health, Mark Poloncarz. (Attachments: #1 Declaration, #2 Exhibit(s) 1, #3 Exhibit(s) 2, #4 Exhibit(s) 3, #5 Memorandum of Law) (Parker, Michelle)
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Filing 10
SUMMONS Returned Executed by Justin G. Crawford, Joe Durolek, David Shamenda, Jenna M. DiMartile, Pamella Giglia. Letitia James served on 8/3/2020, answer due 10/2/2020. (Oswald, Phillip)
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Filing 9
SUMMONS Returned Executed by Justin G. Crawford, Joe Durolek, David Shamenda, Jenna M. DiMartile, Pamella Giglia. Empire State Development Corporation served on 8/3/2020, answer due 10/2/2020. (Oswald, Phillip)
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Filing 8
SUMMONS Returned Executed by Justin G. Crawford, Joe Durolek, David Shamenda, Jenna M. DiMartile, Pamella Giglia. Andrew M. Cuomo served on 8/3/2020, answer due 10/2/2020. (Oswald, Phillip)
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Filing 7
SUMMONS Returned Executed by Justin G. Crawford, Joe Durolek, David Shamenda, Jenna M. DiMartile, Pamella Giglia. Mark Poloncarz served on 8/3/2020, answer due 10/2/2020., CERTIFICATE OF SERVICE by Justin G. Crawford; Joe Durolek; David Shamenda; Jenna M. DiMartile; Pamella Giglia re 5 Order,,,,,,,, Set Hearings,,,,,,, #2 Summons Issued, #4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction (Oswald, Phillip)
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Filing 6
CERTIFICATE OF SERVICE by Justin G. Crawford, Joe Durolek, David Shamenda, Jenna M. DiMartile, Pamella Giglia re 5 Order,,,,,,,, Set Hearings,,,,,,, #2 Summons Issued, #4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , SUMMONS Returned Executed by Justin G. Crawford, Joe Durolek, David Shamenda, Jenna M. DiMartile, Pamella Giglia. Erie County Department of Health served on 8/3/2020, answer due 10/2/2020. (Oswald, Phillip)
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Filing 5
TEXT ORDER denying #4 Plaintiffs' application for an Order to Show Cause, denying #4 Plaintiffs' motion for a Temporary Restraining Order, and reserving decision on #4 Plaintiffs' motion for a preliminary injunction pending completion of expedited briefing. Plaintiffs' application for an Order to Show Cause is denied because its Supporting Attorney Declaration fails to show good cause why the standard Notice of Motion procedure cannot be used, as required by Local Rule 7.1(e) of the Local Rules of Practice for this Court. Apart from failing to envision the possibility of expedited briefing, Plaintiffs fail to explain why they waited until eight days before the first scheduled wedding ceremony to file their motion. Plaintiffs' motion for a Temporary Restraining Order is unsupported by a showing of either (a) the occurrence of irreparable harm that will befall Plaintiffs before a hearing on their motion for preliminary injunction and (b) either a likelihood of success on the merits or a sufficiently serious question as to the merits of the case to make it a fair ground for litigation and a balance of hardships tipping decidedly in its favor (based on the record), as required by Fed. R. Civ. P. 65(b). Plaintiffs shall IMMEDIATELY serve Defendants with their Complaint, motion papers and this Text Order, and file a Certificate of Service by 12:00 P.M. on MONDAY, AUGUST 3, 2020. Defendants' response papers are due by 5:00 P.M. on WEDNESDAY, AUGUST 5, 2020. Plaintiffs' reply papers are due by 11:00 A.M. on THURSDAY, AUGUST 6, 2020. The Court will sua sponte schedule a hearing on Plaintiffs' motion for a preliminary injunction should it determine that oral argument and/or witness testimony is necessary. SO ORDERED by Chief Judge Glenn T. Suddaby on 8/1/2020. (sal )
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Filing 4
MOTION for Temporary Restraining Order and Preliminary Injunction by Justin G. Crawford, Jenna M. DiMartile, Joe Durolek, Pamella Giglia and David Shamenda. (Attachments: #1 Memorandum of Law, #2 Attorney Declaration, #3 Declaration of Lucas James, #4 Exhibits A-E)(pjh, )
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Filing 3
G.O. 25 FILING ORDER ISSUED: Initial Conference set for 11/16/2020 at 10:30 AM in Albany before Magistrate Judge Christian F. Hummel. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 11/9/2020. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (pjh, )
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Filing 2
Summons Issued as to Andrew M. Cuomo. (Attachments: #1 Summons Issued as to Erie County Health Department, #2 Summons Issued as to Empire State Development Corporation, #3 Summons Issued as to Letitia James, #4 Summons Issued as to Mark Poloncarz)(pjh, )
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Filing 1
VERIFIED COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT WITH JURY DEMAND against Andrew M. Cuomo, Empire State Development Corporation, Erie County Department of Health, Letitia James and Mark Poloncarz (Filing fee $400 receipt number ANYNDC-5191266) filed by Justin G. Crawford, Joe Durolek, David Shamenda, Jenna M. DiMartile and Pamella Giglia. (Attachments: #1 Exhibits A-J, #2 Civil Cover Sheet)(pjh, )
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