Brown v. County of Westchester

\Vestchester

POVv.COM Application granted in part and denied in part.

The County Defendants’ request to stay discovery is DENIED.

batimer The County Defendants’ request to extend the discovery

ounty Executive deadline by 3 months is GRANTED. The Court will separately

Office of the County Attorney docket an amended Scheduling Order.

John M. Nonna

County Attorney “ol

Philip M. Halpern Oried Stree ot ct Jud

States District Judge eS MNSITICT SURE

States District Court Dated: White Plains, New York

States Courthouse August 7, 2023

300 Quatropas Street

Plains, New York 10601-4150

Re: — Bianca Brown v. County of Westchester et al., 22-cv-06146 (PMH)

Request to Stay Discovery

Second Request to Extend Discovery Schedule

Dear Judge Halpern,

This office represents the County of Westchester (“County”), District Attorney Miriam E. Rocah,

individually and officially, Former District Attorney Anthony A. Scarpino, individually and officially,

Shameika M. Mathurin, individually and Cynthia A. Adimari, individually (collectively referred to as “County

Defendants”) in the above referenced action. This letter is a request by County Defendants to: 1) stay any

further discovery pending disposition of the County Defendants’ pending motion to dismiss or in the alternative,

2) extend the discovery deadlines contained in the Civil Case Discovery Plan and Scheduling Order. See, Dkt.

71. Counsel for Defendant Adeel Mirza (“Mirza”) takes no position on the first request (stay); counsel for

Plaintiff does not consent to this request. Both counsel for Mirza and Plaintiff consent to the second request

(extension).

EXTENSION OF DISCOVERY

County Defendants are requesting an additional three months to complete fact and expert discovery.

There are outstanding document and information requests by both County Defendants and Plaintiff as well as

discovery objections which the parties intend to resolve without judicial intervention. Due to the previously

medical issues of certain parties, vacation schedules and the sheer volume of discovery

additional time is required to complete all fact discovery.

STAY OF DISCOVERY

Although Your Honor previously denied County Defendants’ request for a stay of discovery prior to the

filing of their motion to dismiss, it is respectfully submitted that the circumstances have changeg-since then as

County Defendants submitted a motion to dismiss on July 11, 2023 which includes “substantiak Sy □□□□□□ for

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automatically stay discovery, “in some circumstances a pending motion to dismiss may constitute good cause

for a protective order staying discovery”). “Courts should consider multiple factors, including the breadth of

discovery sought, the burden of responding to it, the prejudice that would result to the party opposing the stay,

and the strength of the pending motion forming the basis of the request for stay.” Id. (citation omitted). The

party requesting the stay must “demonstrate substantial arguments for dismissal.” Id. at 6 (citation omitted).

As to the “strength of the motion” factor, Courts consider whether the “resolution of the pending motion to

dismiss may dispose of the entire action.” See, Robert d. Press v. Primavera, 21-cv-10971 (JLR), 2022 U.S.

Dist. LEXIS 226954, at *4 (S.D.N.Y., December 16, 2022)(citation omitted); see also BBAM Aircraft Mgmt.

LP v. Babcock & Brown LLC, 20-cv-1056 (OAW), 2022 U.S. Dist. LEXIS 15491, at *37-38 (D.C. Conn.,

August 29, 2022) (internal quotations and citations omitted)(“Although courts typically restrain from

commenting on the strength of a motion prior to issuing a ruling, many courts likewise have recognized the

need for a discovery stay where the arguments are substantial and not unfounded in the law”).

County Defendants have provided almost 600 pages of documents thus far in discovery but the bulk of

the remaining discovery/information requested by Plaintiff includes numerous documents/information in

response to her Monell and whistleblower1 claims. Plaintiff does not concede that these claims are without

merit. However, she now seeks to further amend her complaint to add allegations in support of those claims.

See, Dkt. No. 75. Page 24. County Defendants’ motion addresses the deficiencies in these claims. The motion

also presents a number of substantial arguments for dismissing the amended pleading in its entirety against

County Defendants including: 1) there is no viable claim against the individual defendants; 2) most, if not all, of

the state claims are procedurally barred for failure to file a Notice of Claim and those that are included in the

Notice of Claim do not plausibly allege any claim against the County Defendants; 3) Plaintiff failed to exhaust a

Title VII hostile work environment claim; and 4) Plaintiff failed to plausibly allege a race or gender

discrimination, retaliation and/or hostile work environment claim. Rather than addressing many of these

arguments, Plaintiff simply states that her amended pleading should not be dismissed because “any claimed

deficiencies can be cured by amendment as of right.” See, Dkt. No. 75, page i. If Plaintiff intends to request

permission to file another amended pleading, it would severely prejudice County Defendants to proceed with

discovery under the current pleading. See, Kirschner v. J.P. Morgan Chase Bank, N.A., 17-cv-6334

(PGG)(SLC), 2020 U.S. Dist. LEXIS 145023, at *7-8 (S.D.N.Y. August 12, 2020)(citation omitted)(discovery

“must be grounded in the operative complaint, not on…a proposed amended complaint”).

Therefore, it is respectfully requested that the Court stay all further discovery pending the resolution of

the pending motion to dismiss or in the alternative, grant a three-month extension to complete discovery on the

existing complaint.

I am attaching a copy of a proposed Civil Case Discovery Plan and Scheduling Order should the Court

deny the request for a stay and grant the request for the extension. Should Your Honor’s staff have any

questions, I can be reached at (914) 995-3577 or at iwc1@WestchesterCountyNY.gov. Thank you.

Respectfully,

JOHN M. NONNA

Westchester County Attorney

By: s/ Irma Cosgriff___________

TO: Counsel via ECF

1Plaintiff brought the instant whistleblower claim under Section 740 of the New York State Labor Law, which is

not applicable to public employers. See, Ramsaroop v. Dep’t. of Educ. of N. Y., 20-cv-4947 (ER), 2022 U.S.