Civil Rights Corps. v. Cushman

VULUMEN I

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DOC Re

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/17/2022

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CIVIL RIGHTS CORPS, ET AL., :

Plaintiffs, :

: 21 Civ. 9128 (VM)

- against - :

: DECISION AND ORDER

GEORGIA PESTANA, ET AL., :

Defendants. :

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VICTOR MARRERO, United States District Judge.

On November 4, 2021, Plaintiffs Cynthia Godsoe, Nicole

Smith Futrell, Daniel Medwed, Justin Murray, Abbe Smith, and

Steven Zeidman, (together the “Law Professors”), and non-

profit organization Civil Rights Corps (“CRC,” and with the

Law Professors, “Plaintiffs”) filed suit against Georgia

Pestana (“Pestana”), Corporation Counsel of the City of New

York (“Corporation Counsel”); Melinda Katz (“Katz”), Queens

County District Attorney; Andrea Bonina (“Bonina”), Chair of

the State of New York Grievance Committee for the Second,

Eleventh, and Thirteenth Judicial Districts (the “Grievance

Committee”); Justice Hector D. LaSalle (“LaSalle”), Presiding

Justice of the Second Judicial Department of the Appellate

Division of the Supreme Court of New York; and Diana Maxfield

Kearse (“Kearse”), Chief Counsel of the Grievance Committee

(together, “Defendants”). (See “Complaint,” Dkt. No. 59).

Between December 20, 2021 and January 14, 2022, the

Court received three letters, so-deemed by the Court as

motions to dismiss, from different Defendants seeking

dismissal of the Complaint: one by Pestana and Katz (the “City

Defendants”) (see “City Defendants’ Motion to Dismiss,” Dkt.

No. 35), the second by Bonina and LaSalle (the “State

Defendants”) (see “State Defendants’ Motion to Dismiss,” Dkt.

No. 41), and the third filed by Kearse. (See “Kearse’s Motion

to Dismiss,” Dkt. No. 47.) On May 5, 2022, the Court denied

the State Defendants’ motion in full and denied the City

Defendants’ and Kearse’s motions in part and reserved

judgment in part. See Civil Rights Corps v. Pestana, No. 21

Civ. 9128, 2022 WL 1422852 (S.D.N.Y. May 5, 2022) (“CRC II”).

While the motions to dismiss were pending, Plaintiffs

moved for partial summary judgment. (See Dkt. No. 63.) On

June 13, 2022, the Court granted the motion for partial

summary judgment in part and denied the remaining issues

pending from the motions to dismiss, including the motion to

dismiss due to qualified immunity. See Civil Rights Corps v.

Pestana, No. 21 Civ. 9128, 2022 WL 2118191 (S.D.N.Y. June 13,

2022) (“CRC III”). On July 13, 2022, the City Defendants filed

a notice of interlocutory appeal. (See Dkt. No. 101.) Now

before the Court is City Defendants’ motion to stay

proceedings pending the interlocutory appeal (see “Motion,”

Dkt. No. 108), and Defendants’ opposition to the Motion. (See

“Opposition,” Dkt. No. 110.) City Defendants argue for a stay

because they believe they will prevail on the issue of

qualified immunity or absolute immunity on appeal, so they

wish to spare themselves the burden, and potential harms, of

discovery while that decision is pending. For the reasons

below, the Motion is DENIED in part and GRANTED in part.

I. LEGAL STANDARD1

When a defendant is denied dismissal due to qualified

immunity, they may immediately appeal that decision under the

collateral order doctrine, in recognition that immunity

doctrines protect against the burdens of litigation and

discovery in addition to shielding a defendant from standing

trial. See In re Facebook, Inc., 42 F. Supp. 3d 556, 558

(S.D.N.Y. 2014). Courts in this District assess four factors

when deciding whether to grant a motion to stay discovery

pending interlocutory appeal: whether (1) Defendants have

shown a likelihood of success on appeal; (2) Defendants are

likely to suffer irreparable harm; (3) the stay will or will

not injure the other parties to the case; and (4) the stay is

in the public interest. See Daniels v. City of New York, 138

F. Supp. 2d 562, 564 (S.D.N.Y. 2001).

1 The Court assumes familiarity with the factual and procedural background

recited in its prior orders in this matter.

Courts deciding a motion for a stay of discovery pending

interlocutory appeal on the issue of immunity must be mindful

that qualified immunity -- and absolute immunity -- protect

only against suits for damages, not suits seeking injunctive

or declaratory relief. See Edwards v. Horn, No. 10 Civ. 6194,

2012 WL 760172, at *21 (S.D.N.Y. Mar. 8, 2012) (“Qualified

immunity provides a basis to preclude monetary damages, but

not injunctive relief.” (citing Morse v. Frederick, 551 U.S.

393, 432 (2007)); CRC II, 2022 WL 1422852, at *11 (explaining

the limits of absolute individual immunity). That means a

favorable appellate decision regarding immunity will not

extinguish all of a plaintiff’s claims for relief, or bar

plaintiffs from moving forward with discovery and other

litigation proceedings relating to remaining claims for

equitable relief.

II. DISCUSSION

In deciding whether to grant the stay, the Court must

evaluate City Defendants’ likelihood of success on appeal,

the possibility of irreparable harm absent a stay, whether

the stay will injure other parties to the suit, and the public

interest. See Daniels, 138 F. Supp. 2d at 564. The Court will

assess each of these factors in turn.

A. Likelihood of Success on Appeal

City Defendants argue that they filed an interlocutory

appeal because their motion to dismiss “raised important and

novel legal issues.” (Motion at 1.) First, they claim the

Second Circuit’s decision in Kamasinski v. Judicial Review

Council, 44 F.3d 106 (2d Cir. 1994), which provided the basis

for this Court’s denial of qualified immunity, allows a state

to prohibit “disclosing ‘the fact that a complaint has been

filed’” and that disclosure “is at issue here” rather than

disclosure of the grievance complaints. (Motion at 2 (quoting

Kamasinski, 44 F.3d at 111)). In short, City Defendants

believe this Court misconstrued Kamasinski, so they are

likely to prevail on appeal.

The Court finds that argument unpersuasive because it

misstates the facts alleged in the Complaint, which the Court

was bound to accept as true on a motion to dismiss. A review

of the Complaint shows Plaintiffs filed suit because they

alleged that the First Amendment protected their right to

publish their grievance complaints, not to publicize the fact

that their complaints had been filed. (See, e.g., Complaint

¶ 85 (“The Law Professors have a First Amendment right to

make complaints to the Grievance Committee, to publish these

complaints . . .”); ¶ 93 (“Section 90(10) cannot

constitutionally be applied to preclude the Professors from

publishing [] the 21 complaints they filed and any future

complaints they may file[.]”).) Even more importantly, City

Defendants’ correspondence -- the action at issue in the

qualified immunity question -- shows the same, as Corporation

Counsel wrote to the Grievance Committee stating “in direct

contravention of this legal directive and long-established

public policy, the complainant law professors not only posted

the complaints online, but designed a special website to host

these and future grievance complaints.” (“Johnson Letter,”

Exh. 1, Complaint, Dkt. No. 59 (emphasis added).)

Because City Defendants’ argument for their likelihood

of success on appeal relies on a misstatement of the

pleadings, the Court finds City Defendants have not

established that they are likely to prevail on the qualified

immunity appeal before the Second Circuit.

Further, City Defendants are unlikely to succeed on

their claim of absolute immunity because that issue was never

properly raised before this Court, and thus is not properly

before the Second Circuit. See DiRussa v. Dean Witter Reynolds

Inc., 121 F.3d 818, 822 (2d Cir. 1997) (noting the Court of

Appeals ordinarily will not consider issues not raised before

the district court). City Defendants argue that “while not

addressed by this Court, the City has also asserted an

absolute immunity defense” and the Court failed to address

that argument despite City Defendants “asserting an absolute

immunity argument in their opposition to plaintiffs’ summary

judgment motion.” (Motion at 3 & n.3.)

City Defendants’ Motion to Dismiss never mentions

absolute immunity, and Plaintiffs’ motion for summary

judgment was limited to one issue: the constitutionality of

New York Judicial Law Section 90(10). The issue of absolute

immunity was not relevant to that sole claim.2 City Defendants

did not move for summary judgment on absolute immunity, which

would have been the proper procedural mechanism by which they

could raise that defense at the summary judgment stage. See

Stewart v. City of New York, No. 10 Civ. 5628, 2011 WL

1532007, at *2 (S.D.N.Y. Apr. 18, 2011) (“While an absolute

immunity defense is most often raised on a motion for summary

judgment, a defendant may raise the defense in a motion to

dismiss, so long as the nature of the function performed by

the defendant official is clear from the face of the

complaint.”)

2 The Court did consider several jurisdictional defenses raised for the

first time in opposition to the motion for summary judgment, but, as

courts in this District and other districts, have noted, absolute

immunity is an affirmative defense rather than a jurisdictional

question. See Standard Inv. Chartered, Inc. v. NASD, 621 F. Supp. 2d

55, 66 (S.D.N.Y. 2007); see also Kumar v. George Wash. Univ., 174 F.

Supp. 3d 172, 176 n.1 (D.D.C. 2016). That means City Defendants would

have needed to raise it on their own motion and the Court was not

obligated to resolve the question before deciding the motion for summary

judgment.

The Court finds that City Defendants have not

established a likelihood of success on appeal.

B. Irreparable Harm to City Defendants Absent a Stay

City Defendants assert that allowing discovery to

proceed would irreparably harm them by denying them of their

right to qualified immunity and frustrating the policy

reasoning behind qualified immunity. Plaintiffs counter that,

even with a favorable qualified immunity decision, City

Defendants would still need to litigate the claims for

equitable relief. Due to common facts underlying the claims

for monetary and equitable relief, discovery will heavily

overlap. Thus, Plaintiffs claim, the discovery burden is the

same regardless of the decision on appeal.

Courts in this Circuit have expressed skepticism that a

party seeking a stay pending appeal will suffer irreparable

harm where that party “‘will be subject to discovery,

including giving deposition testimony and providing

documents’ regardless of the relief sought[,]” i.e., even

where claims for equitable relief would proceed. New York v.

Dep’t of Comm., 339 F. Supp. 3d 144, 149 (S.D.N.Y. 2018)

(quoting V.S. v. Muhammad, No. 07 Civ. 1281, 2009 WL 936711,

at *1 (E.D.N.Y. Apr. 3, 2009)). Because City Defendants will

be subject to discovery relating to Plaintiffs’ claims for

equitable relief regardless of the outcome of the qualified-

immunity appeal, the Court finds City Defendants have not

made a sufficient showing that they will suffer irreparable

harm absent a stay of all discovery.

However, the Court is cognizant that “immunity means

immunity” and City Defendants may be harmed by prematurely

turning over sensitive material that relates solely to

Plaintiffs’ claims for monetary damages. In re Facebook, 42

F. Supp. 3d at 559. There may be significant overlap in the

discovery required for the claims to which a qualified

immunity defense do not apply (those for equitable relief)

and the claims that could be precluded by qualified immunity

(the claims for damages). However, there is a possibility

that the claims for damages could require disclosure of

documents that would not be required for the equitable claims.

Thus, there is a chance that City Defendants may suffer some

irreparable harm absent a stay of discovery related only to

the qualified-immunity claims.

C. Injury to Other Parties to the Suit and the Public

Interest

Finally, the Court turns to the final two factors, which

are intimately related in cases like the one at hand, where

Plaintiffs’ alleged injury is one that impacts the public.

The Court finds some merit in City Defendants’ argument that

any harm to Plaintiffs will be minimal, given that the Court

already granted partial relief. However, even if any injury

Plaintiffs suffer may be minor, the Court finds that

Plaintiffs and the public would be harmed by a delay in

resolution of the dispute now before the Court. Plaintiffs

and the public would both benefit from the timely adjudication

of this matter, as it implicates the public’s right to hold

prosecutors accountable, Plaintiffs’ First Amendment rights

to free speech, and allegations of serious misconduct by

government officials. Courts have been particularly cautious

in staying discovery in cases like this, relating to

government transparency and constitutional rights. See New

York v. Dep’t of Comm., 339 F. Supp. 3d at 150.

The Court finds that under the circumstances presented

here a stay of all discovery is unwarranted, but it is

premature to require City Defendants to turn over documents

and provide testimony unrelated to the claims for equitable

relief, if any such evidence exists. Other courts in this

District have suggested a middle ground in cases alleging

claims for both damages and equitable relief in which one

party sought a stay of discovery pending interlocutory

appeal: “discovery pending disposition of the qualified

immunity defense should be tailored and restricted so that

defendants and alleged incidents as to which the defense might

prove meritorious are spared until the motion is decided.”

Atkinson v. Goord, No. 01 Civ. 0761, 2002 WL 1997887, at *1

(S.D.N.Y. Aug. 28, 2002).

Having weighed the relevant considerations, the Court is

persuaded that this middle ground is the most appropriate

option here. The Court denies the motion for a stay of all

discovery. However, the Court grants the requested stay as to

any discovery that pertains only to the claims and issues

that would be precluded if the City Defendants prevail on the

qualified-immunity appeal. The Court will refer the matter to

the Magistrate Court for all discovery disputes, including

parsing those regarding whether or not the discovery sought

relates solely to Plaintiffs’ claims for equitable relief.

III. ORDER

For the reasons stated above, it is hereby

ORDERED that the motion for a stay of discovery filed by

Defendants Georgia Pestana and Melinda Katz (“City

Defendants”) to stay all discovery pending interlocutory

appeal (Dkt. No. 108) is DENIED IN PART AND GRANTED IN PART.

The requested stay is granted as to any discovery that

pertains only to the claims for relief that would be precluded

by a favorable appellate decision on the issues of City

Defendants’ qualified and absolute immunity. The stay is

denied as to all other discovery.

SO ORDERED.

Dated: New York, New York

17 August 2022

Victor Marrero

oe bey

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