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

> District Court, W.D. New York · June 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11075746

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11075746. Public record. Not legal advice.