Hunter et al v. Cortland Housing Authority et al
| Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation and The Second Amendment Foundation |
| Cortland Housing Authority, Ella M. Dilorio and Ella M. Diiorio |
| 5:2023cv01540 |
| December 7, 2023 |
| US District Court for the Northern District of New York |
| Miroslav Lovric |
| Glenn T Suddaby |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Plaintiff |
Docket Report
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Filing 29
TEXT ORDER denying without prejudice #24 Defendants' letter-motion requesting leave to supplement their memorandum of law in support of their pending motion to dismiss for lack of subject-matter jurisdiction (Dkt. No. #16 ) in order "to address [Plaintiff Second Amendment Foundation's] standing under the newly pled Count Four of the [First Amended Complaint]." Although Count Four of Plaintiffs' First Amended Complaint is "newly pled" in the sense that there was no "Count Four" in their original Complaint, it is not newly pled in the sense that it appears substantively the same as Count Two of their original Complaint. (Compare Dkt. No. #1 , at Paragraphs 50-54 with Dkt. No. #20 , at Paragraphs 94-100.) Most notably, it is not asserted by Plaintiff Second Amended Foundation but solely by the three Individual Plaintiffs. (Id.) As a result, the Court can see no need for Defendants to supplement their original memorandum of law. Having said that, because subject-matter jurisdiction is an issue that the Court is duty bound to assess at all times under Fed. R. Civ. P. 12(h)(3), Defendants are respectfully advised that they may "address [Plaintiff Second Amendment Foundation's] standing under the newly pled Count Four of the [First Amended Complaint]" in their reply memorandum of law; however, if they do so, Plaintiffs shall be given a full and fair opportunity to respond to it in a sur-reply memorandum of law. Alternatively, of course, Defendants may simply renew their letter-motion, which has been denied without prejudice. Until they successfully do so, the stay imposed through the Court's Text Order of 01/12/2024 (Dkt. No. 21 ) is hereby LIFTED, and the deadlines are reset as follows: Plaintiffs' response to Defendants' motion is due by the end of MONDAY 02/12/2024; and Defendants' reply to Plaintiffs' response is due by the end of MONDAY 02/19/2024. SO ORDERED by U.S. District Judge Glenn T Suddaby on 1/30/2024. (sal )
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Filing 28
DECISION AND ORDER the Clerk of Court shall amend the docket sheet to correct the spelling of Defendant Diiorio's last name, in accordance with note 1 of this Decision and Order. Plaintiffs' consolidated motion for a temporary restraining order and preliminary injunction (Dkt. No. #2 ) is GRANTED. Defendants, their officers, agents, servants, employees and attorneys and those acting in concert with them, are TEMPORARILY ENJOINED from taking any action to enforce, or otherwise requiring any person or entity to comply with, the Firearms Ban as set forth in "Tenant's Obligations" in Article IX, Section (p) of Defendants' standard Residential Lease Agreement, pending final resolution of this action, EXCEPT to the extent that it prohibits the display, use or possession of firearms in the common areas, grounds or parking areas of the property of CHA in violation of New York State law. Plaintiffs are EXCUSED from giving security. Signed by U.S. District Judge Glenn T. Suddaby on 1/30/2024. (sal)
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Filing 27
TRANSCRIPT of Proceedings: Motion Hearing held on 1/17/2024 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 2/14/2024. Redacted Transcript Deadline set for 2/26/2024. Release of Transcript Restriction set for 4/23/2024. Notice of Intent to Redact due by 1/29/2024 (jlh, )
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Filing 26
TRANSCRIPT REQUEST by Robert Hunter, Elmer Irwin, Doug Merrin, The Second Amendment Foundation for proceedings held on January 17, 2024 before Judge Suddaby.. (Paltzik, Edward)
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Filing 25
NOTICE by Robert Hunter, Elmer Irwin, Doug Merrin, The Second Amendment Foundation re #24 Status Report ; Plaintiffs' Response to Defendants' Letter (Krimnus, Serge)
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TEXT Minute Entry for proceedings held before U.S. District Judge Glenn T Suddaby on 1/17/2024. District Judge Suddaby hears oral argument from counsel regarding Plaintiffs' #2 Motion for Preliminary Injunction and Temporary Restraining Order. District Judge Suddaby reserves decision at this time. A written decision will be forthcoming. APP: Edward Paltzik, Esq., Serge Krimnus, Esq., John Liguori, Esq., and Mark Houston, Esq.. Time: 11:05 AM - 11:55 AM. (Court Reporter Jodi Hibbard) (sal)
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Filing 24
STATUS REPORT in Response to the January 12, 2024 Text Order by Cortland Housing Authority, Ella M. Dilorio. (Houston, Mark)
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Filing 23
STATUS REPORT by Cortland Housing Authority, Ella M. Dilorio. (Houston, Mark)
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Filing 22
NOTICE by Robert Hunter, Elmer Irwin, Doug Merrin, The Second Amendment Foundation re January 17, 2024 Oral Argument (Krimnus, Serge)
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Filing 21
TEXT ORDER staying the deadlines for a response and a reply on Defendants' pending motion to dismiss, and directing Defendants to do one of the following two things within THREE (3) BUSINESS DAYS of the issuance of this Text Order: (1) file a letter advising the Court what portions (if any) of their motion to dismiss remain pending following Plaintiff's filing of an Amended Complaint as of right, or (2) file a letter withdrawing their motion (or a portion of their motion) without prejudice as moot. The parties are respectfully advised that, if any portion of Defendants' motion to dismiss remains pending, and Defendants would like to supplement their motion (e.g., to address any newly asserted claims), Defendants will be given a reasonable opportunity in which to do so through a letter-brief, then the deadlines for a response and reply will be reset. SO ORDERED by U.S. District Judge Glenn T Suddaby on 1/12/2024. (sal )
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Filing 20
AMENDED COMPLAINT against Cortland Housing Authority, Ella M. Dilorio filed by Robert Hunter, Elmer Irwin, The Second Amendment Foundation, Doug Merrin. (Attachments: #1 Exhibit(s) A - CHA Lease)(Krimnus, Serge)
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Filing 19
REPLY to Response to Motion re #2 MOTION for Preliminary Injunction filed by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation. Motion returnable before Judge Glenn T. Suddaby MOTION for Temporary Restraining Order filed by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation. (Attachments: #1 Declaration Hunter Declaration, #2 Declaration Irwin Declaration, #3 Declaration Merrin Declaration)(Paltzik, Edward)
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Filing 18
TEXT ORDER: In light of the filing of Motion to Dismiss #16 , the Rule 16 Initial Conference scheduled for 3/14/2024 before Magistrate Judge Miroslav Lovric, and the conference related deadlines, are all STAYED without date. SO ORDEREED by U.S. Magistrate Judge Miroslav Lovric on 1/4/2024. (jdc )
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Filing 17
RESPONSE in Opposition re #2 MOTION for Preliminary Injunction filed by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation. Motion returnable before Judge Glenn T. Suddaby MOTION for Temporary Restraining Order filed by Cortland Housing Authority, Ella M. Dilorio. (Attachments: #1 Declaration Ella M. DiLorio Declaration, #2 Exhibit(s) Exhibit 1 to Ella M. DiLorio Declaration, #3 Exhibit(s) Exhibit 2 to Ella M. DiLorio Declaration, #4 Exhibit(s) Exhibit 3 to Ella M. DiLorio Declaration, #5 Exhibit(s) Exhibit 4 to Ella M. DiLorio Declaration, #6 Exhibit(s) Exhibit 5 to Ella M. DiLorio Declaration, #7 Exhibit(s) Exhibit 6 to Ella M. DiLorio Declaration, #8 Memorandum of Law Memo of Law in Opposition)(Liguori, John)
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Filing 16
First MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by Cortland Housing Authority, Ella M. Dilorio. Motion returnable before Judge Glenn T. Suddaby Response to Motion due by 1/24/2024. Reply to Response to Motion due by 1/31/2024 (Attachments: #1 Declaration Attorney Declaration in Support of Defendants' Motion to Dismiss the Second Amendment Foundation, #2 Memorandum of Law Memorandum of law in Support of Defendants' Motion to Dismiss and in Opposition, #3 Declaration Declaration of Ella M. DiLorio in Opposition to Plaintiffs' Application for Injunctive Relief, #4 Exhibit(s) Exhibit 1 to Ella M. DiLorio Declaration, #5 Exhibit(s) Exhibit 2 to Ella M. DiLorio Declaration, #6 Exhibit(s) Exhibit 3 to Ella M. DiLorio Declaration, #7 Exhibit(s) Exhibit 4 to Ella M. DiLorio Declaration, #8 Exhibit(s) Exhibit 5 to Ella M. DiLorio Declaration, #9 Exhibit(s) Exhibit 6 to Ella M. DiLorio Declaration) (Liguori, John)
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Filing 15
First ANSWER to #1 Complaint, by Ella M. Dilorio.(Liguori, John)
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Filing 14
First ANSWER to #1 Complaint, by Cortland Housing Authority.(Liguori, John)
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Filing 13
NOTICE OF APPEARANCE by Mark T Houston on behalf of All Defendants (Houston, Mark)
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Filing 12
NOTICE OF APPEARANCE by John W. Liguori on behalf of All Defendants (Liguori, John)
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Filing 11
NOTICE by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation re Notice of Hearing on Motion,,,, (Krimnus, Serge)
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TEXT NOTICE: Based upon the #11 notice and consent of the parties, the briefing schedule regarding Plaintiffs' #2 Motion for a Preliminary Injunction and Plaintiffs' #2 Temporary Restraining Order are now consolidated with an in person Motion Hearing set for 1/17/2024 at 11:00 AM in Syracuse before U.S. District Judge Glenn T Suddaby. Defendants' papers in response to both motions referenced above are due on or before 1/3/2024; and Plaintiffs' reply papers to both motions referenced above are due on or before 1/10/2024. The day before the hearing, each party must file a letter advising the Court of the extent to which, at the hearing, it intends to adduce evidence through live witness testimony and exhibits or it intends to offer only oral argument (in which case it would rely on the declarations and exhibits adduced in its motion papers). (sal )
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TEXT NOTICE of Hearing on Plaintiffs' Motion #2 for Preliminary Injunction and Temporary Restraining Order : Motion Hearing regarding Plaintiffs' Motion for a Temporary Restraining Order is set for 1/17/2024 at 11:00 AM in Syracuse before U.S. District Judge Glenn T Suddaby. Defendants' papers in response to Plaintiffs' motion for temporary restraining order are due on or before 1/3/2024; and Plaintiffs' reply papers are due on or before 1/10/2024. The day before the hearing, each party must file a letter advising the Court of the extent to which, at the hearing, it intends to adduce evidence through live witness testimony and exhibits or it intends to offer only oral argument (in which case it would rely on the declarations and exhibits adduced in its motion papers). The parties are directed to promptly advise the Court if they would like the same briefing schedule as referenced above, including the date and time of the hearing, and consolidate to consolidate the briefing schedules for Plaintiffs' motion for a Temporary Restraining Order and a Preliminary Injunction. (Plaintiffs' counsel is directed to serve a copy of this text notice upon Defendants) (sal)
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Filing 10
CERTIFICATE OF SERVICE by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation (Paltzik, Edward)
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Filing 9
AFFIDAVIT of Service for Complaint, motion papers and Text Order , pursuant to ECF 5, served on Defendant Ella M. Dilorio on December 12, 2023, filed by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation. (Paltzik, Edward)
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***Answer due date updated for Cortland Housing Authority answer due 1/2/2024. (kck)
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***Answer due date updated for Ella M. Dilorio answer due 1/2/2024. (kck)
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Filing 8
AFFIDAVIT of Service for Complaint, motion papers and Text Order , pursuant to ECF 5, served on Defendant Cortland Housing Authority on December 12, 2023, filed by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation. (Paltzik, Edward)
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Filing 7
AMENDED DOCUMENT by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation. Amendment to #2 MOTION for Preliminary Injunction filed by Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation. Motion returnable before Judge Glenn T. Suddaby MOTION for Temporary Restraining Order [Attachment #7 to TRO/MPI, Kraut Declaration]. (Paltzik, Edward)
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TEXT NOTICE: The Initial Conference set for 3/14/2024 at 1:30PM before Magistrate Judge Miroslav Lovric, via Microsoft Teams Teleconferencing. The Courtroom Deputy will send a teams link to the parties to participate. (jdc )
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Filing 6
NOTICE OF APPEARANCE by Serge Krimnus on behalf of Robert Hunter, Elmer Irwin, Doug Merrin, Second Amendment Foundation (Krimnus, Serge)
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Filing 5
TEXT ORDER denying #2 Plaintiffs' application for an Order to Show Cause under Local Rule 65.1 and 7.1(e), and reserving decision on #2 Plaintiffs' motion for a Temporary Restraining Order and #2 their motion for a Preliminary Injunction, pending the completion of briefing, and the conducting of a hearing, on each. Plaintiff's application for an Order to Show Cause is unsupported by an affidavit that clearly and specifically shows good and sufficient cause why the standard Notice of Motion procedure (i.e., advanced notice, 21 days for an opposition, and 7 days for a reply) cannot be used with regard to the underlying motion for a Temporary Restraining Order, as required by Local Rule 7.1(e). (Dkt. No. #2 , Attach. 2, at 11, 17-18; Dkt. No. #2 , Attach. 5, at 10; Dkt. No. #2 , Attach. 6, at 8; Dkt. No. #2 , Attach. 7, at 10; Dkt. No. #2 , Attach. 8, at 8.) In addition, Plaintiffs' application for an Order to Show Cause is unsupported by a detailed and specific affidavit demonstrating good cause why they cannot give reasonable advanced notice of that application to Defendants, and substantial prejudice that would result from the requirement of such reasonable advanced notice, as also required by Local Rule 7.1(e). (Id.) Indeed, Plaintiffs' counsel appears to concede the appropriateness of such notice by email and phone. (Dkt. No. #2 , Attach. 2, at 18.) As a result, Plaintiffs are directed to serve Defendants with a copy of their Complaint, motion papers and this Text Order. Defendants' papers in response to Plaintiffs' motion for temporary restraining order are due within 21 days of Plaintiffs' filing of a Certificate of Service; and Plaintiffs' reply papers are due within 7 days after the filing of Defendants' response papers. Following this Text Order, the Court shall schedule a hearing on Plaintiffs' motion for a Temporary Restraining Order. The day before the hearing, each party must file a letter advising the Court of the extent to which, at the hearing, it intends to adduce evidence through live witness testimony and exhibits or it intends to offer only oral argument (in which case it would rely on the declarations and exhibits adduced in its motion papers). A Text Order scheduling the deadlines for the completion of the briefing, and the date and time of a hearing, on Plaintiffs' motion for a Preliminary Injunction shall be forthcoming (unless the parties agree to consolidate Plaintiffs' two motions). SO ORDERED by U.S. District Judge Glenn T Suddaby on 12/8/2023. (sal )
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Filing 4
G.O. 25 FILING ORDER ISSUED: Initial Rule 16 Conference set for 3/14/2024 at 1:30 PM before Magistrate Judge Miroslav Lovric. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 3/7/2024. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (jmb)
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Filing 3
Summons Issued as to Cortland Housing Authority. (Attachment: #1 Summons issued as to Ella M. Dilorio) (jmb)
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Filing 2
EMERGENCY MOTION for Temporary Restraining Order and EMERGENCY MOTION for Preliminary Injunction filed by Robert Hunter, Elmer Irwin, Doug Merrin and Second Amendment Foundation. Motion returnable before Judge Glenn T. Suddaby, (Attachments: #1 Memorandum of Law, #2 Paltzik Declaration, #3 Exhibit A to Paltzik Declaration, #4 Exhibit B to Paltzik Declaration, #5 Hunter Declaration, #6 Irwin Declaration, #7 Kraut Declaration, #8 Merrin Declaration, #9 Proposed Order)(jmb)
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Filing 1
COMPLAINT with JURY DEMAND: against Cortland Housing Authority and Ella M. DiLorio in her role as Executive Director (Filing fee $405 receipt number ANYNDC-6538203) filed by Robert Hunter, Elmer Irwin, Doug Merrin and Second Amendment Foundation. (Attachments: #1 Exhibit A, #2 Civil Cover Sheet)(jmb)
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