Doe v. Helen Hayes Hospital

THE LAW OFFICE OF THUY Q. PHAM

Via ECF February 10, 2022

Hon. Philip M. Halpern,

United States District Judge, Southern District of New York

RE: Jane Doe v. Seliger et al., No. 20 CV 2331(PMH)

Plaintiff's Request for Leave to Serve Defendant a Shared Rule 56.1 Statement.

. Plaintiff's application for a 30-day extension for plaintiff to serve

Dear Judge Halpern: a Rule 56.1 Statement on defendants and strike their Rule 56.1

cent pes Statement, or a stay of the deadlines to serve and file pre-

Jane Doe (“Plaintiff”) and Defendants {motion letters and a Rule 56.1 Statement, is denied. The

deadlines set forth in the Court's November 30, 2022 Order, as

Defendants’ January 31, 2023 56.1 statemqmodified by the December 7, 2022 Order, are extended one

week as follows: Plaintiff's time to serve upon defendants her

ize). Def > 1 responses to the Rule 56.1 Statement together with any

anonymize) efendants’ 56.1 does not co counterstatement of facts is extended to February 21, 2023.

» ; Defendants’ responses to any counterstatement of facts shall

56.1”), nor Your Honor’s Individual Rule 446 completed by, and their pre-motion letter together with the

Rule 56.1 Statement shall be filed by, February 28, 2023.

56.1 does not conform to Your Honor’4Plaintiff's opposition to defendants’ pre-motion letter shall be

filed by March 7, 2023.

conference (“Conference”, ECF 140-5 (tran:

SO ORDERED.

leave to serve a conforming Rule 56.1 g

additional undisputed facts. In the altern{Pnifip M. Halpern

United States District Judge

modified November 30, 2022 Order (ECF 1

Dated: White Plains, New York

Defendants’ 56.1 Failed to Challenge February 13, 2023

Rule 56.1 Statement shall be organized first by [inter alia]... claim(s) for relief or defenses (as

applicable), setting forth the particular facts applicable to each.” Individual Rule 4(E)(ii1). At

Conference, Your Honor emphasized organizing the 56.1 statement by “claim for relief by claim

for relief, affirmative defense by affirmative defense.” ECF 140-5, 20:1-2, emphasis added. Here,

Defendants’ 56.1 (ECF 153-1) fails to adhere to Your Honor’s clear directive at Conference.

Therefore, Defendants’ 56.1 does not conform with Individual Rule 4(E)(ii1).

Defendants’ Failure to Identify Any Affirmative Defense Disregards Second Circuit Law:

Jurisprudence in the Second Circuit, and this District, abhors a defendant proceeding with

implausible affirmative defenses. Shechter v. Comptroller of N.Y.C., 79 F.3d 265, 270 (2d Cir.

225 West 23rd Street ms New York. NY 10011 @ (917)-532-2991 mg email: thuvygpham1 (@email.com p.l

1996) (“Affirmative defenses which amount to nothing more than mere conclusions of law and

are not warranted by any asserted facts have no efficacy”, emphasis added, internal citations

omitted); Sec. & Exch. Comm’n v. Rayat, 21-cv-4777 (LJL), 7 (S.D.N.Y. Oct. 18, 2021) (“The

Second Circuit has held that… the stage of the proceedings ‘is relevant to the degree of rigor

appropriate for testing the pleading of an affirmative defense.’” quoting GEOMC Co. v. Calmare

Therapeutics Inc., 918 F.3d 92, 98 (2d Cir. 2019)); Credit Suisse First Boston, LLC v. Intershop

Commc’ns AG, 407 F. Supp. 2d 541, 546 (S.D.N.Y. 2006) (an “affirmative defense should be

stricken where insufficient as a matter of law to eliminate the delay and unnecessary expense

from litigating the invalid claim”, emphasis added, citation omitted). Here, Defendants’ Answer

raises 14 affirmative defenses at ¶¶ 207-21(Ans., ECF 70), including “qualified immunity/good

faith” defenses, id. at 218-19. After 3 years of litigation, Plaintiff has a right to receive notice,

before summary judgment motion practice begins, as to what alleged facts Defendants contend

are applicable to each individual affirmative defense to be raised. Your Honor’s Individual

Rule 4(E)(iii) preserved Plaintiff’s right to such notice, and Your Honor amplified Plaintiff’s

right through your instructions in Conference. Without explanation, Defendants entirely failed to

identify any affirmative defense in Defendants’ 56.1 Statement. Therefore, Plaintiff has good

cause to object to Defendants non-compliance with Your Honor’s Individual Rule 4(E)(iii), as

prejudicial to Plaintiff’s right to factual elaboration of Defendants’ affirmative defenses.

Defendants’ 56.1 is Not a Statement of Undisputed Facts: A Rule 56.1 statement is limited to

alleging facts in which “there is no genuine dispute”. F.R.C.P. 56(a). Your Honor noted: “If

there are factual disputes, then I can’t grant summary judgment to either of you”. ECF 140-5

21:15-16. Here, Defendants 56.1 Statement is defective in that it is divided into disputed

“Defendants’ Statement Of Facts” and “Plaintiff’s Statement Of Facts” sections. This structure

invites denial of summary judgment to all parties. Your Honor instructed, “Defendants will get

[their Rule 56.1 statement] to [Plaintiff] beforehand, and she will admit or deny. If [Plaintiff]

do[es] anything but admit or deny, I will deem the facts admitted.” ECF 140-5, 18:23-19:1. Your

Honor’s further instructed, “25 pages will be shared by both of you, and you will -- to the extent,

[Defendants] don’t need all 25 pages, [Plaintiff] can use whatever additional space there is for

her additional facts that she needs.” ECF 140-5, 19:4-7. Plaintiff reasonably expected to receive

25 pages as Defendants’ Rule 56.1. Plaintiff suggested Defendants use Plaintiff’s May 10, 2022

Rule 56.1 statement (ECF 109-1) as a starting point. However in the 62 days after Conference,

Defendants never contacted Plaintiff to meet-and-confer, and then served Plaintiff with a Rule

56.1 statement not conforming to Individual Rule 4(E)(iii). Plaintiff has only 14 days either to

“admit” or “deny”, with minor factual supplementation. Plaintiff already provided a conforming

56.1 statement. Therefore, Plaintiff has good cause to respectfully seek 30 days’ leave to serve an

updated conforming Rule 56.1 statement. Defendants’ 56.1 is plainly defective.

Defendants’ Position: Plaintiff’s application appears principally to be a request for a 30-

day extension of time to serve her response and counterstatement of facts, which is due on

2/14/23, premised on belated and specious complaints that Defendants’ 56.1 statement does not

comply with Your Honor’s rules. Defendants do not object to a 1-week extension of Plaintiff’s

deadline, along with a concurrent extension of the subsequent related deadlines. Defendants

oppose the application in all other respects, including to the extent that Plaintiff seeks to strike

Defendants’ 56.1 sstatement and to upend the summary judgment procedure established by this

Court. Plaintiff fails to identify sufficient cause for such drastic relief at this late stage.

Plaintiff’s main argument appears to be that Defendants should have adopted her prior

May 2022 56.1 statement, which she served before depositions even began. Notably, however,

Plaintiff did not raise any objections to the summary judgment procedure set forth by the Court

at the 11/30/22 conference, including that Defendants would serve their 56.1 Statement first,

when the Court first announced it over two months ago. Nor does the undersigned have any

recollection of Plaintiff’s counsel requesting that Defendants use her old 56.1 statement, and, in

any event, they were under no obligation to do so. That Plaintiff now realizes that she prefers to

start with her own statement is not a valid basis to strike Defendants’ 56.1.

Further, Plaintiff waited an entire week after receiving Defendants’ 56.1 statement before

claiming for the first time that it violates the Court’s rules. Regardless, Plaintiff’s complaints are

unfounded. Defendants respectfully submit that they have substantially complied with the spirit

of the Court’s directive to organize the 56.1 statement “first by facts applicable to all claims for

relief and by claim(s) for relief or defenses (as applicable).” Individual Rule 4(e) (emphasis

added). Although Plaintiff asserted 12 separate causes of action, all her Section 1983 claims

allege deprivations of liberty or property interests arising out of the same allegedly

unconstitutional act, i.e., Defendants’ attempted discharge of Plaintiff from Helen Hayes

Hospital, and the state tort claims are all related or derivative (e.g., abuse of process, aiding and

abetting, and conspiracy). The facts in Defendants’ concise, 12-page 56.1 apply to all these

claims while leaving Plaintiff ample room to respond and assert a counterstatement within the

25-page limit. The only claims that are arguably factually distinct are those that arise solely out

of the guardianship proceeding, and facts unique to those claims are largely set apart in separate

sections titled “HHH Initiates a Sealed Guardianship Proceeding to Facilitate Safe Discharge”

and “The Proxies’ Continued Refusal to Discharge.” Defendants also set apart “Facts Relevant

to Damages and Injuries.” Moreover, given that Defendants 56.1 statement is relatively brief

despite an otherwise complex factual record (it is only 12 double-spaced pages), Plaintiff cannot

reasonably claim that Defendants have hidden or obfuscated the facts they intend to rely on in

support of their motion for summary judgment.

Plaintiff’s complaint that Defendants’ 56.1 statement does not identify affirmative

defenses is inapposite, and Plaintiff appears to be conflating the 56.1 statement with the pre-

motion letter. A 56.1 statement is strictly limited to setting forth facts, Sattar v. U.S. Dep't of

Homeland Sec., 669 F. App'x 1, 3 (2d Cir. 2016) (“Rule 56 .1 statements are statements of fact

rather than legal arguments.”), and Defendants’ pre-motion letter, which is not due until 2/21/23,

will “inform[] the Court [and Plaintiff] of the basis for” their motion, Individual Rule 4(E)(vii).

In sum, Plaintiff has a full and fair opportunity to deny Defendants’ facts and cure any

purported deficiencies in her counterstatement. Plaintiff cannot reasonably claim any prejudice

or inability to respond to Defendants’ 56.1 statement and her application should be denied,

except Defendants consent to a 1-week extension of her deadline to respond.

THE LAW OFFICE OF THUY Q. PHAM LANDMAN CORSI BALLAINE & FORD P.C.

/s/ Thuy Q. Pham____________________ ___/s/ Daniel Moretti

By: Thuy Q. Pham By: Daniel Moretti

Attorney for the Plaintiff Attorneys for Defendants

225 West 23rd Street, #6G 120 Broadway, 13th Floor

New York, New York 10011 New York, New York 10271

(917) 532-2991 (212) 238-4800

thuyQpham1@gmail.com dmoretti@lcbf.com