Butchino v. City of Plattsburgh et al
| Zachary Butchino |
| Chad Welch, Mike Doe, Adam Wood, Joel Vassar, City of Plattsburgh, Kristopher Minogue, Joshua Pond and Levi Ritter |
| 8:2020cv00796 |
| July 15, 2020 |
| US District Court for the Northern District of New York |
| Mae A D'Agostino |
| Christian F Hummel |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Plaintiff |
Docket Report
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This docket was last retrieved on April 13, 2022. A more recent docket listing may be available from PACER.
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Filing 50
Stipulation and ORDER DISMISSING CASE. Signed by U.S. District Judge Mae A. D'Agostino on 4/13/2022. (ban)
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Filing 49
STIPULATION of Dismissal by City of Plattsburgh, Mike Doe, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood submitted to Judge D'Agostino. (Aspland, John)
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Text Minute Entry for proceedings held before Magistrate Judge Christian F. Hummel: Settlement Conference held on 3/18/2022. Appearances by Douglas Edward Lieb Esq. and Adam I. Strychaluk, Esq. for plaintiff, with Plaintiff Zachary Butchino. John D. Aspland, Esq. for Defendants (with party representative). After negotiations are held, a settlement is reached. Terms and conditions are placed on the record. Parties will exchange general release documents and present Judge D'Agostino with a Stipulation of Discontinuance once settlement paperwork is finalized. (Court Reporter Lisa Tennyson)[12:00pm-3:45pm] (tab)
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Filing 48
COURT NOTICE of Change in Conference (start time only): The Settlement Conference has been reset to now begin at 12:00PM on Friday, 3/18/2022 in Albany before Magistrate Judge Christian F. Hummel. (tab)
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CLERK'S CORRECTION OF DOCKET ENTRY re 48 Notice of Conference: Clerk corrected the date of the Settlement Conference to indicate Friday, 3/18/2022 @ 12:00pm. (tab)
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Filing 47
TEXT ORDER granting #46 Joint Letter Motion from Douglas E. Lieb (on behalf of all parties) for Zachary Butchino requesting Settlement Conference : An in-person Settlement Conference has been set for Friday, 3/18/2022 beginning at 1:00 PM in Albany. Counsel and clients, with full settlement authority, are directed to report to Room 441 at the James T. Foley, U.S. Courthouse located at 445 Broadway, in Albany, NY. Each side is directed to submit a brief settlement statement directly to chambers, via email to CRD Burtt @ Tara_Burtt@nynd.uscourts.gov on or before 3/16/2022. (Not to be served on your adversary or filed on CM-ECF) Authorized by Magistrate Judge Christian F. Hummel on 3/2/2022. (tab)
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Filing 46
Joint Letter Motion from Douglas E. Lieb (on behalf of all parties) for Zachary Butchino requesting Settlement Conference submitted to Judge Christian F. Hummel . (Lieb, Douglas)
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Filing 45
JURY TRIAL NOTICE: The Jury Trial is set for Tuesday, 6/7/2022 at 09:30 AM in Albany before U.S. District Judge Mae A. D'Agostino; The Final Pretrial Conference is set for 5/26/2022 at 11:00 AM in Albany before U.S. District Judge Mae A. D'Agostino; Pretrial Submissions/Motions in Limine due by 5/17/2022; Responses, if any, due 5/24/22. (ban)
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TEXT Minute Entry for Telephone Pretrial Conference held on 1/21/2022 before U.S. District Judge Mae A. D'Agostino: Appearances by Douglas Lieb, Esq. and Adam Strychaluk, Esq. for the Plaintiff; John Aspland, Esq. for the defendants; This case is trial ready - a Firm Jury Trial date is set for Tuesday, June 7, 2022 at 9:30 a.m. in Albany; The trial is expected to last 4 days; Judge D'Agostino encourages counsel to stipulate to any evidence that can be stipulated to, before the start of the trial; All evidence should be in electronic format for presentation to the jury; Jury Selection, trial scheduling, and witnesses are briefly discussed with counsel; IF counsel would like to test the Courtroom technology, they are to contact Britney, Judge D'Agostino's CRD to make an appointment. A trial notice will be issued. (Court Reporter Lisa Tennyson, CRD Britney Norton [Time 11:59 a.m. - 12:11 p.m.]) (ban)
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Filing 44
NOTICE of Appearance by Adam I. Strychaluk on behalf of Zachary Butchino (Strychaluk, Adam)
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Filing 43
MEMORANDUM-DECISION and ORDER granting in part and denying in part #27 Motion for Summary Judgment. Signed by U.S. District Judge Mae A. D'Agostino on 1/14/2022. (ban)
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Filing 42
REPLY to Response to Motion re #27 First MOTION for Summary Judgment filed by City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood. Motion returnable before Judge D'Agostino. filed by City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood. (Attachments: #1 Supplement Supplemental Record)(McDermott, Stephanie)
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Filing 41
TEXT ORDER granting #37 Letter Request: It is hereby ORDERED that defendant's request for leave to file a reply brief, not to exceed 15 pages, is GRANTED. Signed by U.S. District Judge Mae A. D'Agostino on 5/19/21. (ban)
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Filing 40
TEXT ORDER denying request to file cross-motion for sanctions. In a letter dated May 17, 2021, Plaintiff requests permission to file a Rule 11 sanctions motion, which was previously filed without permission in violation of this Court's Individual Rules of Practice. See Dkt. No. 36. In his letter motion, Plaintiff argues that several aspects of Defendants' motion for summary judgment are frivolous and the arguments ignore material facts in the record in making their arguments. See id. at 2-3. Plaintiff's motion is denied as premature and improper. In response to Defendants' motion for summary judgment, Plaintiff has opposed the motion in its entirety. Should the Court eventually grant in part and deny in part the pending motion for summary judgment, by Plaintiff's own logic he should be subject to Rule 11 sanctions for his opposition to those portions of Defendants' motion that the Court found meritorious. Moreover, even assuming the Court were to deny Defendants' motion in its entirety, a motion for Rule 11 sanctions would still be unlikely to succeed because "'Rule 11 sanctions are not to be imposed on every litigant that files a motion that the Court deems premature, or ill-advised, or weak.'" Performance Electronics, LLC v. Tri Valley Recyclers, LLC, No. 15-cv-710, 2016 WL 11339558, *1 (E.D.N.Y. Apr. 4, 2016) (quotation omitted). The Second Circuit has cautioned that Rule 11 sanctions should be "made with restraint," Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir. 1999), and even where a court determines that Rule 11(b) has been violated, the decision whether to impose sanctions is not mandatory, but rather is a matter for the court's discretion. See Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004). Upon receipt of the Court's ruling on the pending motion for summary judgment, Plaintiff should decide, at that time, whether a Rule 11 motion should be made. In making its decision, Plaintiff's counsel is advised to consider the issues raised in this text order, and particularly whether any such Rule 11 motion would in fact be the frivolous motion presented to the Court. Accordingly, Plaintiff's request to file a Rule 11 sanctions motion is DENIED without prejudice. IT IS SO ORDERED. Signed by U.S. District Judge Mae A. D'Agostino on 5/19/21. (ban)
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Filing 39
EXHIBITS(Flash Drive of audio and video files) to #33 Response to Motion by Zachary Butchino re #33 Response in Opposition to Motion. (ban)
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Filing 38
Pre-Motion Response to #36 Letter Motion from Douglas E. Lieb for Zachary Butchino requesting Pre-Motion Conference Regarding Motion for Rule 11 Sanctions submitted to Judge Mae A. D'Agostino . (Aspland, John)
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Filing 37
Letter Motion from John D. Aspland, Jr., Esq. for City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood requesting Permission to file a Reply in excess of 10 pages submitted to Judge D'Agostino . (Aspland, John)
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Filing 36
Letter Motion from Douglas E. Lieb for Zachary Butchino requesting Pre-Motion Conference Regarding Motion for Rule 11 Sanctions submitted to Judge Mae A. D'Agostino . (Lieb, Douglas)
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Filing 35
TEXT ORDER striking #34 Plaintiff's motion for sanctions: The Court is in receipt of Plaintiff's motion for sanctions. See Dkt. No. 34. Pursuant to this Court's Individual Rules and Practices, counsel are required to file a pre-motion letter before making a motion for sanctions. See Individual Rules and Practices of Hon. Mae A. D'Agostino Rule 2(A)(i). Plaintiff did not seek permission to file his motion for sanctions. Accordingly, Plaintiff's motion for sanctions is stricken. Counsel are advised to consult the Court's individual rules prior to the filing of future submissions. IT IS SO ORDERED. Signed by U.S. District Judge Mae A. D'Agostino on 5/14/21. (ban)
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Filing 34
**STRICKEN Pursuant to Judge D'Agostino's 5/14/21 Strike Order** MOTION for Sanctions under Federal Rule of Civil Procedure 11 filed by Zachary Butchino. Response to Motion due by 6/4/2021. Reply to Response to Motion due by 6/11/2021 (Attachments: #1 Memorandum of Law, #2 Declaration of Prior Service under Rule 11(c)(2)) (Lieb, Douglas) Modified on 5/14/2021 (ban).
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Filing 33
RESPONSE in Opposition re #27 First MOTION for Summary Judgment filed by City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood. Motion returnable before Judge D'Agostino. filed by Zachary Butchino. (Attachments: #1 Statement of Material Facts, #2 Supplement of Additional Record Materials)(Lieb, Douglas)
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Filing 32
TEXT ORDER granting #31 Letter Request for leave to file an oversized memorandum of law, not to exceed 30 pages. Signed by U.S. District Judge Mae A. D'Agostino on 5/10/21. (ban)
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Filing 31
Letter Motion from Douglas E. Lieb for Zachary Butchino requesting Leave to File 30-Page Opposition Brief submitted to Judge Mae A. D'Agostino . (Lieb, Douglas)
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Filing 30
CD EXHIBITS TO #27 Motion for Summary Judgment by City of Plattsburgh, Mike Doe, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood. CD's filed conventionally with the Court. Not available for electronic viewing. (7 CD's total) (ban) Modified on 4/6/2021 (ban).
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Filing 29
TEXT ORDER granting #28 Letter Request: It is hereby ORDERED that the joint request for an extension of the deadlines to respond to #27 Motion for Summary Judgment, is GRANTED; Response to Motion due by 5/14/2021, Reply to Response to Motion due by 5/21/2021. The motion will be decided on the submission of the papers only, unless otherwise directed by the Court. NO further extensions of these deadlines will be entertained, as the facts of this case relate back to 2017. Signed by U.S. District Judge Mae A. D'Agostino on 4/6/21. (ban)
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Filing 28
Consent Letter Motion from Douglas E. Lieb for Zachary Butchino requesting Extension of Time to Respond to Defendants' Motion for Summary Judgment submitted to Judge Mae A. D'Agostino . (Lieb, Douglas)
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Filing 27
First MOTION for Summary Judgment filed by City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood. Motion returnable before Judge D'Agostino. (Attachments: #1 Declaration, #2 Statement of Material Facts, #3 Memorandum of Law, #4 Exhibit(s), #5 Exhibit(s), #6 Exhibit(s), #7 Affidavit) (Aspland, John)
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Set/Reset Deadlines as to #27 First MOTION for Summary Judgment filed by City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood. Motion returnable before Judge D'Agostino.. Response to Motion due by 4/23/2021. Reply to Response to Motion due by 4/30/2021 pursuant to Local Rule 7.1(a)(1). (jel, )
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Filing 26
TEXT ORDER granting #25 Letter Request/Pre-Motion Letter for leave to file an oversized brief: It is hereby ORDERED that the defendant's request for leave to file an oversized memorandum of law in support of the motion for summary judgment is GRANTED; The defendant may file a brief, not to exceed 35 pages. Signed by U.S. District Judge Mae A. D'Agostino on 3/26/21. (ban)
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Filing 25
Pre-Motion Letter by City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch, Adam Wood requesting a pre-motion conference submitted to Judge D'Agostino. MAD Pre-Motion Response Deadline 3/29/2021 (Aspland, John)
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TEXT Minute Entry for Telephone Pre-Motion Conference held on 3/10/2021 before U.S. District Judge Mae A. D'Agostino: Appearances by Douglas Lieb, Esq. for the Plaintiff; John Aspland, Esq. for the defendant; Judge D'Agostino addresses counsel regarding the pre-motion letters submitted to the Court; The Court believes that there may be issues of fact, that have to be decided by a jury, but the Court will permit the defendant to file a motion for summary judgment, if they so choose; Counsel inform the Court that there is a video of the incident; Defense counsel requests that the motion filing deadline be extended by 2 weeks - Judge D'Agostino grants that requests - Motions shall be filed on or before 4/2/21. (Court Reporter Jacqueline Stroffolino, CRD Britney Norton [Time 11:01 a.m. - 11:10 a.m.]) (ban)
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Filing 24
RESPONSE TO LETTER BRIEF filed by Zachary Butchino as to #23 Letter Request/Motion, filed by Joshua Pond, City of Plattsburgh, Kristopher Minogue, Joel Vassar, Chad Welch, Levi Ritter re: Summary Judgment Motion. (Lieb, Douglas)
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Filing 23
Letter Motion from John Aspland, Jr. Esq. for City of Plattsburgh, Kristopher Minogue, Joshua Pond, Levi Ritter, Joel Vassar, Chad Welch requesting Request for Authorization to File Motion submitted to Judge Mae A. D'Agostino . (Aspland, John)
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Set Deadlines: Response to #23 pre-motion letter due by 2/24/2021. (ban)
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Filing 22
WAIVER OF SERVICE Returned Executed by Zachary Butchino. Levi Ritter waiver sent on 10/20/2020, answer due 12/21/2020. (Lieb, Douglas)
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Filing 21
REPORT OF MANDATORY MEDIATION - A Mandatory Mediation session was held on 10-19-2020. Total Hours Spent by Mediator: 3.0; The outcome of Mandatory Mediation is: MEDIATION IS COMPLETE. CASE DID NOT SETTLE. The case will proceed toward trial pursuant to the Courts Uniform Pretrial Scheduling Order. (Hacker, James)
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Filing 20
CONFIDENTIALITY AGREEMENT 10-19-2020 (Hacker, James)
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ADR COMPLETED - CASE DID NOT SETTLE. (rjb, )
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Filing 19
Summons Issued as to Levi Ritter. (jel, )
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Filing 18
REQUEST FOR ISSUANCE OF SUMMONS(ES): Zachary Butchino is requesting summons(es) be issued as to #17 Amended Complaint (Lieb, Douglas)
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Filing 17
AMENDED COMPLAINT on Consent and Pursuant to Scheduling Order against City of Plattsburgh, Kristopher Minogue, Joshua Pond, Joel Vassar, Chad Welch, Adam Wood, Levi Ritter filed by Zachary Butchino.(Lieb, Douglas)
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Filing 16
UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 5 Days (Jury Trial). Preferred Trial Location: Albany, NY. Joinder of Parties due by 11/6/2020. Amended Pleadings due by 11/6/2020. Discovery due by 1/29/2021. Motions to be filed by 3/19/2021. Deadline for completion of Mandatory Mediation is 10/30/2020. Signed by Magistrate Judge Christian F. Hummel on 10/16/2020. (tab)
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Filing 15
ORDER REFERRING CASE to Mandatory Mediation. Deadline for Mediator Selection is 11/13/2020. Deadline for completion of Mandatory Mediation is 10/30/2020. Signed by Magistrate Judge Christian F. Hummel on 10/16/2020. (Parties indicate during the 10/14/2020 Rule 16 conference that a mediator has already been selected and mediation is scheduled)(tab) (Main Document 15 replaced on 10/16/2020 to correct the caption/case number) (tab).
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Text Minute Entry for proceedings held before Magistrate Judge Christian F. Hummel: Initial Pretrial Conference held on 10/14/2020. Appearances by telephone by Douglas Edward Lieb, Esq. for Plaintiff; John Aspland, Esq. for Defendants. Pretrial deadlines are established. A Scheduling Order will be issued. (tab)
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Filing 14
COURT NOTICE of dial-in instructions for Chambers Teleconference: This case is scheduled for it's Initial Conference on 10/14/2020 @ 9:30 AM. This Court conference will be conducted by telephone and the parties are directed to dial in at 1-888-684-8852, enter Access code 9772719#, and use Security code 1234# to join the call. (tab)
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Filing 13
CIVIL CASE MANAGEMENT PLAN (Jointly Proposed by All Parties) by Zachary Butchino. (Lieb, Douglas)
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CLERK'S CORRECTION OF DOCKET ENTRY re #12 Answer to Complaint. Replaced with corrected numbered paragraphs. (khr)
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Filing 12
ANSWER to #1 Complaint, by City of Plattsburgh, Mike Doe, Kristopher Minogue, Joshua Pond, Joel Vassar, Chad Welch, Adam Wood.(Aspland, John) (Main Document 12 replaced on 8/10/2020) (khr, ).
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Filing 11
NOTICE of Appearance by John D. Aspland on behalf of City of Plattsburgh, Mike Doe, Kristopher Minogue, Joshua Pond, Joel Vassar, Chad Welch, Adam Wood (Aspland, John)
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***Answer due date updated for City of Plattsburgh answer due 8/12/2020; Kristopher Minogue answer due 8/12/2020; Joshua Pond answer due 8/12/2020; Joel Vassar answer due 8/12/2020; Chad Welch answer due 8/12/2020; Adam Wood answer due 8/12/2020. (jel, )
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Filing 10
AFFIDAVIT of Service for Summons and Complaint served on Joel Vassar on 07/22/2020, filed by Zachary Butchino. (Lieb, Douglas)
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Filing 9
AFFIDAVIT of Service for Summons and Complaint served on Kristopher Minogue on 07/22/2020, filed by Zachary Butchino. (Lieb, Douglas)
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Filing 8
AFFIDAVIT of Service for Summons and Complaint served on Joshua Pond on 07/22/2020, filed by Zachary Butchino. (Lieb, Douglas)
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Filing 7
AFFIDAVIT of Service for Summons and Complaint served on Chad Welch on 07/22/2020, filed by Zachary Butchino. (Lieb, Douglas)
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Filing 6
AFFIDAVIT of Service for Summons and Complaint served on Adam Wood on 07/22/2020, filed by Zachary Butchino. (Lieb, Douglas)
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Filing 5
AFFIDAVIT of Service for Summons and Complaint served on City of Plattsburgh on 07/22/2020, filed by Zachary Butchino. (Lieb, Douglas)
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Filing 4
TEXT-ONLY NOTICE REGARDING JUDGE D'AGOSTINO CASE DISPOSITION PILOT - Please refer to the Individual Rules and Practices of the Hon. Mae A. D'Agostino, U.S. District Judge, for guidance regarding the Case Disposition Pilot. https://www.nynd.uscourts.gov/sites/nynd/files/MAD_Rules_of_Practice_04_14_2020.pdf. (jmb)
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Filing 3
G.O. 25 FILING ORDER ISSUED: Initial In-Person Rule 16 Conference set for 10/14/2020 at 9:30 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 10/7/2020. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (jmb)
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Filing 2
Summons Issued as to City of Plattsburgh. (Attachments: #1 Summons issued for Chad Welch, #2 Summons issued for Adam Wood, #3 Summons issued for Joshua Pond, #4 Summons issued for Kristoher Minogue, #5 Summons issued for Joel Vassar) (jmb)
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TEXT NOTICE: Although the plaintiff herein has named Mike Doe in the #1 Complaint, the Clerk's Office will not issue summonses for service of process on a "John Doe" defendant at this time. In the event plaintiff wishes to pursue the claims against that defendant, plaintiff shall take reasonable steps to ascertain their identities. When plaintiff determines the identity of the"John Doe" defendant, plaintiff may seek to amend the pleading to add the properly named defendant pursuant to FED. R. CIV. P. 15 and summons will be issued at that time. (jmb)
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Filing 1
COMPLAINT WITH JURY DEMAND: against City of Plattsburgh, Chad Welch, Adam Wood, Joshua Pond, Kristopher Minogue, Joel Vassar and Mike Doe, (Filing fee $400 receipt number ANYNDC-5174108) filed by Zachary Butchino. (Attachments: #1 Civil Cover Sheet) (jmb)
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