Cardew v. New York State Department of Corrections and Community Supervision

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ROBERT CARDEW, et al.,

Plaintiffs, DECISION AND ORDER

-VS-

21-cv-6557-MAV-MJP

NEW YORK STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY

SUPERVISION, et al.,

Defendants.

Pending before the Court are two separate motions filed by Plaintiffs. ECF

Nos. 53 (motion for class certification); 92 (motion for sanctions). In their motion for

sanctions, Plaintiffs ask the Court to, among other things, strike Defendants’

untimely opposition to their motion for class certification. For the reasons stated

below, Plaintiffs’ motion for sanctions is DENIED, and the Court exercises its

discretion to accept Defendants’ opposition to Plaintiffs’ motion for class certification.

Plaintiffs shall have 380 days from the date of this order to address Defendants’

opposition on the merits and to further support their motion for class certification

with any additional evidence from discovery.

BACKGROUND

On August 30, 2021, Plaintiffs commenced this putative class action alleging

Defendants’ systemic and discriminatory failure to provide people with mobility-

related disabilities who are incarcerated at Five Points Correctional Facility with

reasonable accommodations. ECF No. 1 at 1. Plaintiffs timely filed a motion for class

certification on February 15, 2023, pursuant to an amended scheduling/case

management order issued by Magistrate Judge Mark W. Pedersen. ECF No. 49 at 2.

On April 11, 2023, District Judge Charles J. Siragusa issued a text scheduling order

setting forth the briefing schedule for Plaintiffs’ motion for class certification. The

text order provided, in relevant part:

On February 15, 2023, named Plaintiffs filed a motion to certify class

[ECF No. 53]. To date, Defendants have not filed opposition papers.

Defendants are hereby directed to file and [serve] their response, if any,

to Plaintiffs motion to certify class no later than April 28, 2023. The

Court will notify the parties if oral argument is deemed necessary;

otherwise, the matter will be considered as submitted on the papers, and

the Court will issue a written decision and order at its earliest

opportunity.

ECF No. 56. Defendants did not file an opposition by the Court-imposed deadline of

April 28, 2023. In an appearance on June 27, 2023, then-defense counsel, Assistant

Attorney General (“AAG”) Matthew Brown (“Brown”), confirmed to the Court that

Defendants did not oppose Plaintiffs motion for class certification. ECF No. 63.

Plaintiffs’ motion remained pending while discovery continued. See ECF No. 83 at 2

(explaining that, as of June 21, 2024, Plaintiffs produced 2,000 pages of medical

records and other documents; Defendants produced over 11,000 pages of documents;

the parties participated in a 3-day joint site visit; and depositions were completed).

Through a letter filed on June 17, 2024, Defendants advised the Court that

this case had been reassigned to AAG Muditha Halliyadde (“Halliyadde”) in May

2024 following the unexpected death of AAG Brown. ECF No. 80 at 1. The letter

indicated that AAG Halliyadde reviewed thousands of pages of discovery and planned

to oppose Plaintiffs’ pending motion for class certification based, in part, on evidence

uncovered during discovery. ECF No. 80 at 1. Over Plaintiffs’ objection, see ECF No.

83, Defendants filed their opposition on July 5, 2024. ECF No. 89.

In response, Plaintiffs filed the instant motion for sanctions. ECF Nos. 92-94.

Defendants opposed (ECF No. 97), and Plaintiffs filed a reply, ECF No. 104. The case

was transferred to the undersigned on February 7, 2025. ECF No. 134.

DISCUSSION

In their motion for sanctions, Plaintiffs move for an order striking Defendants’

opposition to their motion for class certification as untimely filed under Rule 16(b)(4)

of the Federal Rules of Civil Procedure (“FRCP”), the Court’s Local Rule 16, and

multiple scheduling orders issued by Magistrate Judge Pedersen. ECF Nos. 92 at 1;

98 at 5, 8. Plaintiffs also request the imposition of costs and fees under FRCP 16(£)(2)

due to Defendants’ purported violations of the above referenced rules and orders. ECF

No. 93 at 11-14. Plaintiffs contend that they are entitled to an order striking

Defendants’ opposition because Defendants have not demonstrated “good cause”

under FRCP 16(b)(4) to warrant modification of the Court’s scheduling orders. Id. at

8-9.

In response, Defendants contend that the Court should accept their opposition

because “new facts emerged during the discovery process implicating the viability of

the proposed class definition,” and the Court must consider this evidence because it

has an obligation to ensure compliance with FRCP 23’s requirements at all stages of

the litigation. ECF No. 97 at 3-5. In Defendants’ view, the emergence of additional

facts during the discovery process constitutes “good cause” warranting modification

of the Court’s scheduling order Jd. at 5. For the reasons stated below, the Court

accepts Defendants’ opposition brief.

As an initial matter, the Court rejects Plaintiffs’ argument that Defendants’

untimely opposition should be struck because they have not complied with the “good

cause” standard under FRCP 16(b)(4). ECF No. 93 at 7-11. The Court observes that

Plaintiffs’ motion for class certification was filed pursuant to a deadline set forth in

an amended scheduling/case management order issued by Magistrate Judge

Pedersen under FRCP 16(b) and the Court’s Local Rule 16. See ECF No. 49; see, e.g.,

ECF No. 14 (prior scheduling/case management order issued by Magistrate Judge

Pedersen under Judge Siragusa’s Referral Order, FRCP 16, and the Court’s Local

Rule 16). However, the pertinent deadline at issue here is not Plaintiffs’ deadline to

file the motion to. certify; rather, 1t 1s Defendants’ response deadline to that motion,

which was set by an order issued by Judge Siragusa under Rule 7(b)(1) of the Court’s

Local Rules. Accordingly, the Court finds that the “good cause” standard under FRCP

6(b) applies instead of the “good cause” standard of Rule 16(b). See Powercap Partners

LLC v. Fleischmann, No. 20-CV-3428, 2023 WL 2711316, at *2 (E.D.N.Y. Mar. 30,

2023) (“TRule 16(b)(4)] .. . applies when a movant seeks to extend a deadline in a

scheduling order issued pursuant to Rule 16. Rule 6(b)(1) apples where, as here, a

litigant fails to comply with a court-imposed deadline.”); Villa v. Southwest Credit

Sys., No. 19-CV-01701, 2020 WL 3808911, at *4 (W.D.N.Y. June 10, 2020), report and

recommendation adopted by, 2020 WL 3802936 (W.D.N.Y. 2020) (finding Rule 6(b)

governed the plaintiffs request to extend the deadline to file an opposition to the

defendant’s motion for summary judgment); Cf. Corkrey v. Internal Revenue Suc., 192

F.R.D. 66, 67 (N.D.N.Y. 2000 (“Because the rule which authorized the scheduling

order contains a specific provision governing the relief sought here, it is the rule

which governs the motion .. . rather than Rule 6(b).”).

Rule 6(b)(1) of the Federal Rules of Civil Procedure states that “[w]hen an act

may or must be done within a specified time, the court may, for good cause, extend

the time .. . on a motion made after the time has expired if the party failed to act

because of excusable neglect.” The Second Circuit has construed this subsection as

requiring “a finding of both ‘good cause’ and ‘excusable neglect? when a litigant seeks

an extension after a deadline has passed.” Alexander v. Saul, 5 F.4th 139, 154 (2d

Cir. 2021); see Doe v. Warren & Baram Mgmt. LLC, No. 20-CV-9522, 2024 WL 124322,

at *2 (S.D.N.Y. Mar. 22, 2024).

“Good cause” in the context of Rule 6(b)(1) 1s a “non-rigorous standard,”

Alexander, 5 F.Ath at 154, and “is usually not difficult to show.” Rankin v. City of

Niagara Falls, 293 F.R.D. 375, 390 (W.D.N.Y. 2013) (quotation omitted), aff'd, 569 F.

App’x 25 (2d Cir. 2014). “Good cause” will normally be found “in the absence of bad

faith on the part of the party seeking relief or prejudice to the adverse party.” Id.

(quotation omitted). “[U]nder Rule 6(b)(1), as interpreted by case law, the term ‘good

cause’ imposes a light burden, as opposed to the much heavier burden imposed by

Rule 16(b)(4).” Villa, 2020 WL 3808911, at *4; see Powercap Partners LLC, 2023 WL

2711316, at *8 “Under Rule 16(b), the question of whether good cause exists turns

on the diligence of the moving party.”) (quotation and brackets omitted).

Similarly, “excusable neglect’ is an ‘elastic concept, that is ‘at bottom an

equitable one, taking account of all relevant circumstances surrounding the party’s

omission.” Saviano v. Town of Westport, 337 F. App’x 68, 70 (2d Cir. 2009) (quoting

Tancredt v. Metro Life Ins. Co., 378 F.3d 220, 226 (2d Cir. 2004)). In determining

whether a party’s neglect is excusable, courts consider a non-exhaustive list of factors,

including: “‘[1] [t]he danger of prejudice to the [opposing party], [2] the length of the

delay and its potential impact on judicial proceedings, [3] the reason for the delay,

including whether it was in the reasonable control of the movant, and [4] whether the

movant acted in good faith.” Saviano, 337 F. App’x at 70 (quoting Tancredt, 378 F.3d

at 228). “Federal Rule of Civil Procedure 6(b)(1) gives the district court wide

discretion to grant a request for additional time.” Alexander, 5 F.4th at 154 (quotation

and brackets omitted; emphasis in original).

Here, the Court finds that there 1s “good cause” to extend Defendants’ response

deadline and that their failure to meet the deadline was caused by “excusable

neglect.” First, “good cause” exists due to the absence of prejudice to Plaintiffs. The

Court disagrees with Plaintiffs’ assertion that they would experience prejudice if

Defendants’ opposition were considered. Even if the Court struck Defendants’

opposition and granted Plaintiffs’ unopposed class certification motion based on the

evidence that existed at the time of filing, Defendants could — and indeed have

expressed their intention to — file a motion for decertification based on the evidence

uncovered during discovery. ECF No. 97 at 7. In that scenario, Plaintiffs would still

retain the burden to demonstrate that the Rule 23 requirements were satisfied in

light of the evidentiary development of the case. Onosamba-Ohindo v. Searls, 678 F.

Supp. 38d 364, 370 (W.D.N.Y. 2023) (“In opposing a decertification motion, as in the

original class certification analysis, plaintiffs retain the burden to demonstrate that

these [Rule 23] requirements were satisfied by a preponderance of the evidence.”)

(quotation and brackets omitted); see Lawrence v. NYC Med. Prac., P.C., No. 18-CV-

8649, 2024 WL 307842, at *2 (S.D.N.Y. Jan. 26, 2024) (same);! see also Mirkin v.

XOOM, LLC, No. 18-CV-2949, 2024 WL 30638338, at *3 (E.D.NY. June 20, 2024) “A

district court has an affirmative duty to monitor its class decisions in light of the

evidentiary development of the case.”) (quotation and brackets omitted). Thus,

Plaintiffs would have to demonstrate that class certification is warranted based on

the evidence that now exists whether in response to their initial motion or upon

Defendants’ subsequently filed motion to decertify. □

Second, turning to the “excusable neglect” factors, the Court finds that there is

minimal danger of prejudice to Plaintiffs for the reasons stated above. As to the

proffered reason for the delay and why Defendants’ opposition is being filed now,

Defendants highlight the emergence of facts during discovery that “implicat[e] the

viability of the proposed class definition” even though “previous defense counsel did

not oppose and made representations indicating that he would not oppose” Plaintiffs’

motion for class certification. ECF No. 97 at 3. The Court finds these assertions

1 To the extent Defendants would have to show a “significant intervening event” on its motion to

decertify, Mirkin, 2024 WL 3063883, at *8, such an event could include the availability of new

evidence, Kloppel v. HomeDeliveryLink, Inc., No. 17-CV-6296, 2022 WL 1210484, at *3 (W.D.N.Y. April

25, 2022), which Defendants allege here.

reasonable. Subsequent to the filing of Plaintiffs’ motion for class certification, the

parties took depositions in March and April 2024 and exchanged thousands of pages

of documents during discovery. See ECF Nos. 83 at 2; 97 at 3. The Court must consider

relevant evidence from discovery beyond that which was attached to Plaintiffs’ motion

at the time it was filed in order to engage in the “rigorous analysis” necessary to

ensure that Rule 23(a)’s prerequisites have been satisfied. See Wal-Mart Stores, Inc.

v. Dukes, 564 U.S. 338, 350 (2011) “Rule 238 does not set forth a mere pleading

standard. A party seeking class certification must affirmatively demonstrate his

compliance with the Rule—that is, he must be prepared to prove that there are in

fact sufficiently numerous parties, common questions of law or fact, etc.”) (emphasis

in original); accord Elisa W. v. City of New York, 82 F.4th 115, 127 (2d Cir. 2023); see

General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982) (“[A]ctual, not

presumed, conformance with Rule 23(a) remains... indispensable.”).

Although Plaintiffs timely filed their motion and a decision has been pending

since April 28, 2028, there is nothing improper about allowing discovery to proceed

before deciding the motion. While courts must determine whether to certify an action

at “an early practicable time after a person sues or is sued as a class representative,”

FRCP. 28(c)(1)(A), “a decision about certification need not be made at the outset” and

“a court should delay a certification ruling until information necessary to reach an

informed decision is available.” Macpherson v. Firth Rixson Ltd., No. 12-CV-6162,

2012 WL 2522881, at *2 (W.D.N.Y. June 28, 2012) (citing FRCP 23(c)(1) advisory

committee notes to 2003 amendments); see Sirota v. Solitron Devices, Inc., 673 F.2d

566, 571 (2d Cir. 1982) (“[T]here can be no doubt that it is proper for a district court,

prior to certification of a class, to allow discovery and to conduct hearings to

determine whether the prerequisites of Rule 23 are satisfied.”). “[A] district court may

be reversed for premature certification if it has failed to develop a sufficient

evidentiary record from which to conclude that the requirements of numerosity,

typicality, commonality of question, and adequacy of representation have been met.”

Sirota, 673 F.2d at 571.

Lastly, the Court disagrees with Plaintiffs’ assertion that the case will be

significantly delayed if Defendants were allowed to respond. ECF No. 93 at 1. To the

contrary, for purposes of judicial economy, the Court finds it more efficient to accept

Defendants’ opposition and permit a reply instead of issuing a whole new briefing

schedule following the submission of a motion to decertify if the Court were to strike

Defendants’ opposition and grant Plaintiffs’ unopposed motion for class certification.

The Court also finds it relevant that Defendants’ opposition was filed relatively soon

after new defense counsel was reassigned the case. See ECF Nos. 80 (AAG Halliyadde

reassigned case in May 2024); 89 (opposition filed July 5, 2024).

In short, Plaintiffs will have to establish whether now or in the future that

class certification is appropriate based on the evidence that currently exists and,

therefore, any prejudice flowing to Plaintiffs from the untimely opposition is minimal.

To streamline the proceeding, the Court accepts Defendants’ opposition and will allow

Plaintiffs an opportunity to file a reply. While Plaintiffs’ briefs in support of their

motion for sanctions briefly address certain arguments made by Defendants in their

opposition, Plaintiffs are entitled to fully respond on the merits to all of the

arguments advanced by Defendants before the Court renders a decision on their

motion for class certification.

CONCLUSION

Accordingly, Plaintiffs’ motion for an order striking Defendants’ opposition and

imposing fees and costs associated therewith (ECF No. 92) is DENIED. The Court

exercises its discretion to accept Defendants’ untimely opposition brief. Plaintiffs

shall have 30 days from the date of this Order to address Defendants’ opposition on

the merits and to further support their motion for class certification if they deem

necessary. No further briefing will be permitted. The Court will issue a decision as

soon as practicable following Plaintiffs’ additional submission.

SO ORDERED.

DATED: June , 2025

Rochester, New York

United States District Judge

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