Lask v. Fallon

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SUSAN LASK,

Plaintiff,

MEMORANDUM

AND ORDER

-against-

24-CV-04751 (JMW)

DAVID P. FALLON, LAW OFFICE OF

DAVID P. FALLON, PLLC. and

SAIKAT SINHA,

Defendants.

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A P P E A R A N C E S:

Susan Chana Lask

Law Offices of Susan Chana Lask

244 Fifth Avenue, Suite 2369

New York, NY 10001

Attorneys for Plaintiff

David P. Fallon

Fallon & Fallon, LLP

53 Main Street

Sayville, NY 11782

Attorneys for Defendants David P. Fallon

& Law Office of David P. Fallon, PLLC

No Appearance by Pro Se Defendant Saikat Sinha

WICKS, Magistrate Judge:

Following resolution of this case, Plaintiff now seeks to seal a docket entry of an

otherwise public record – a court decision issued by the Hon. Loretta Preska in an unrelated case

that was filed in this case in support of an earlier motion to dismiss (ECF No. 22-15). This latest

motion, filed at ECF No. 66, is unopposed (see ECF No. 64). However, this is not the first

attempt to remove or seal this document from the court record. Rather, it is the third. And in this

case, three times is not a charm and must be denied (again).

In this latest motion, Plaintiff moved for the identical relief that was before the Hon.

Judge Rachel P. Kovner (see ECF No. 41), which was denied. (See Electronic Order dated

2/28/2025.) In relevant part, Judge Kovner wrote:

The challenged order, submitted as an exhibit in support of defendant Fallon’s

motion to dismiss, easily qualifies as a judicial document. … Plaintiff’s motion

does not address either of the [two remaining] criteria. The Court finds, however,

that the weight to be accorded the presumption of public access is high, as ‘[t]he

general and deeply rooted rule is that the presumptive right of access is afforded

strong weight when applied to documents that play a central role in determining

litigants’ substantive rights—conduct at the heart of Article III.’ Mirlis [v. Greer,

952 F.3d 51, 60 (2d Cir. 2020)]. … And though plaintiff has not identified any

countervailing factors counseling against disclosure, to the extent plaintiff asserts a

privacy interest, ‘[t]he fact that a document has been publicly available weighs

against restricting public access to it.’ Siomkos v. Nouinou, No. 24-CV-10074

(LTS), 2025 WL 105677, at *2 (S.D.N.Y. Jan. 13, 2025).

But that’s not all. That first application to seal was filed only after Judge Kovner denied

Plaintiff’s motion to strike the document from the docket. (See Electronic Order dated

1/17/2025) (“Plaintiff has provided no legal authority for her motion to strike”). Since those two

rulings, only two circumstances changed, namely, the parties consented to the undersigned for all

purposes pursuant to Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c) (see ECF No. 58 and 59) and the

case settled (see ECF No. 57). Plaintiff argues now that the case is resolved and that the

documents requested to be sealed are “not part of the adjudicative process in this case” and so,

the motion to seal should now be granted. For the reasons that follow, Plaintiff’s Motion to Seal

(ECF No. 66) is DENIED.

DISCUSSION

The public right of access is embedded in our Country’s history. Indeed, that concept

existed well before the right appeared in our Constitution. “Judicial documents are subject at

common law to a potent and fundamental presumptive right of public access that predates even

the U.S. Constitution. That right includes ‘a general right to inspect and copy’ such judicial

documents.” Mirlis v. Greer, 952 F.3d 51, 58-59 (2d Cir. 2020) (internal citations omitted). “Let

the people know the facts, and the country will be safe.” Abraham Lincoln (1861).

It is by now axiomatic that there is a presumption of public access to judicial documents

and records. See Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139

(2d Cir. 2016); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (“The

common law right of public access to judicial documents is firmly rooted in our nation's

history”); Suffolk Reg'l Off Track Betting Corp. v. United States Small Bus. Admin., No. 24-CV-

07058 (SJB) (JMW), 2025 WL 1384157, at *1 (E.D.N.Y. May 13, 2025). However, “the right to

inspect and copy judicial records is not absolute. Every court has supervisory power over its own

records and files, and access has been denied where court files might have become a vehicle for

improper purposes.” Nixon, 435 U.S. at 598. Whether right of access to court proceedings and

records is overcome, “depends on the nature of the proceeding, not on the personal

characteristics of the litigant.” Hartford Courant Co., LLC v. Carroll, 986 F.3d 211, 219 (2d Cir.

2021). It matters not that the parties agree amongst themselves to have documents sealed. Rather,

the public's interest and right to judicial access is as much at stake.

This right, however, is not absolute as a party may move to seal judicial records. Yet

motions to seal must be “‘carefully and skeptically reviewed to ensure that there really is an

extraordinary circumstance or compelling need’ to seal the documents from public inspection.”

Bernsten v. O'Reilly, 307 F. Supp. 3d 161, 165 (S.D.N.Y. 2018) (quoting Video Software Dealers

Ass'n v. Orion Pictures, 21 F.3d 24, 27 (2d Cir. 1994)); see Lugosch, 435 F.3d at 119. Indeed,

“[t]he burden of demonstrating that a document submitted to a court should be sealed rests on the

party seeking such action.” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir.

1997); In re Parmalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009) (internal citations

omitted) (“The party opposing disclosure of a judicial document must make a particular and

specific demonstration of fact showing that disclosure would result in an injury sufficiently

serious to warrant protection . . . broad allegations of harm unsubstantiated by specific examples

or articulated reasoning fail to satisfy the test.”).

The Second Circuit in Lugosch adopted a three-part analysis to guide district courts when

determining whether documents filed in a case can and should be placed under seal. See Suffolk

Reg'l Off Track Betting Corp., 2025 WL 1384157, at *2; see Lugosch, 435 F.3d at 119–20; see

also King Pharm., Inc. v. Eon Labs, Inc., No. 04-CV-5540 (DGT), 2010 WL 3924689, at *4

(E.D.N.Y. Sept. 28, 2010). First, the court “must determine whether documents are judicial

documents that are relevant to the performance of the judicial function and useful in the judicial

process.” Saadeh v. Kagan, No. 20-CV-1945 (PAE) (SN), 2021 WL 965334, at *2 (S.D.N.Y.

Mar. 15, 2021) (internal quotation and citations omitted). Second, the Court must weigh the

presumption of access attached to the documents in question. See id. (citing Lugosch, 435 F.3d.

at 119–120). And third, the Court must use its discretion to determine “whether there are any

countervailing concerns that would weigh against full public access to the documents.” See id.

(citing Lugosch, 435 F.3d. at 120).

Before considering each of the Lugosch factors, however, the question arises whether the

prior rulings by Judge Kovner are “law of the case”.

Parties chart their own procedural course. No viable grounds were offered justifying the

filing of the third attempt to shield the filing from public view, and the Court finds no

independent good cause. As the Hon. Arthur D. Spatt observed,

“The ‘law of the case’ doctrine posits that if a court decides a rule of law, that

decision should continue to govern in subsequent stages of the same case.”

Sagendorf-Teal v. Cty. Of Rensselaer, 100 F.3d 270, 277 (2d Cir. 1996) (quoting

DiLaura v. Power Authority of State of New York, 982 F.2d 73, 76 (2d Cir. 1992)).

“Law of the case rules have developed to maintain consistency and avoid

reconsideration of matters once decided during the course of a single continuing

lawsuit.” In re PCH Associates, 949 F.2d 585, 592 (2d Cir. 1991) (quoting 18 C.

Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478, at 788

(1981)).

Hatteras Enters. Inc. v. Forsythe Cosmetic Group, Ltd., No. 15-CV-5887 (ADS)(ARL), 2016

WL 4083386, at *4 (E.D.N.Y. July 30, 2016).

This doctrine “counsels a court against revisiting its prior rulings in subsequent stages of

the same case absent cogent and compelling reasons such as an intervening change of controlling

law, the availability of new evidence, or the need to correct a clear error or prevent manifest

injustice.” D'Iorio v. Winebow, Inc., 68 F. Supp. 3d 334, 359 (E.D.N.Y. 2014) (citing Jackson v.

New York State, 523 Fed. Appx. 67, 69 (2d Cir. 2013) (“The Plaintiff apparently relies on the

same arguments that she raised in opposition to the Defendant's motion to dismiss. Accordingly,

the Court declines to reconsider its prior decision.”)); see also Elisa W. v. City of New York, No.

15-CV-5273 (JAV) (SLC), 2025 WL 1479191, at *5 (S.D.N.Y. May 22, 2025) (“This doctrine

warns courts against revisiting prior rulings in later stages of the same action—which is precisely

what Plaintiffs seek to do—absent compelling reasons or the need to correct a manifest

injustice.”)

Indeed, “where litigants have once battled for the court's decision, they should neither be

required, nor without good reason permitted, to battle for it again.” Zdanok v. Glidden Co.,

Durkee Famous Foods Div., 327 F.2d 944, 953 (2d Cir. 1964). As no good cause has been

established for bringing this latest motion, which is more akin to a motion for reconsideration,

the law of the case doctrine governs. The Court having visited this very issue now three times,

finds once again, Plaintiff has failed to justify any “exceptional circumstances” that would allow

the undersigned to conclude otherwise or disturb Judge Kovner’s prior rulings. See Mazzei v.

Money Store, No. 22-1959, 2023 WL 6784415, at *3 (2d Cir. Oct. 13, 2023) (“This issue was

decided at least four times, once by Judge Ellis, twice by Judge Koeltl, and then finally by this

Court. Mazzei, 2014 WL 3610894; SPA 35–53; Mazzei, 308 F.R.D. 92; Mazzei, 656 F. App'x 558.

And it was within the district court's broad discretion to conclude that the Bigsby evidence did

not create an exceptional circumstance that would warrant revisiting the matter.”)

Accordingly, since no tenable grounds are offered and no justification exists to depart

from the Court’s earlier rulings on both the motion to strike (ECF No. 31) and seal (ECF No. 41),

this latest motion to seal is denied.

Apart from the application of the law of the case doctrine, consideration of each of the

Lugosch factors to the circumstances presented here leads inescapably to the same result,

namely, denial of the motion. Each of the Lugosch factors is addressed below.

I. Whether the Documents are “Judicial Documents”

“A judicial document is not simply a document filed with the court, but one that is

‘relevant to the performance of the judicial function and useful in the judicial process.’”

Cantinieri v. Versick Analytics, Inc., No. 21-cv-6911 (NJC) (JMW), 2024 WL 759317, at *2

(E.D.N.Y. Feb. 23, 2024) (quoting Lugosch, 435 F.3d at 115) (citation omitted).

As our precedent makes clear, a court “perform[s] the judicial function” not only

when it rules on motions currently before it, but also when properly exercising its

inherent “supervisory powers.” A document is thus “relevant to the performance of

the judicial function” if it would reasonably have the tendency to influence a district

court's ruling on a motion or in the exercise of its supervisory powers, without

regard to which way the court ultimately rules or whether the document ultimately

in fact influences the court's decision. Accordingly, if in applying these standards,

a court determines that documents filed by a party are not relevant to the

performance of a judicial function, no presumption of public access attaches.

Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019) (emphasis in original).

As such, judicial documents that are tantamount to performance of Article III functions

likely carry a strong presumption of access whereas documents that are insignificant in helping a

court reach an adjudicative decision demonstrate a low presumption of access. See United States

v. Amodeo, 71 F.3d 1044, 1049–50 (2d Cir. 1995).

Generally, motions to dismiss have been deemed a judicial document. See Desch v.

Ulthera, Inc., No. 22-CV-2688 (HG), 2022 WL 2987084, at *1 (E.D.N.Y. July 28, 2022)

(quoting Alcon Vision, LLC v. Lens.com, No. 18-CV-407, 2020 WL 3791865, at *6 (E.D.N.Y.

July 7, 2020) (“Court filings in connection with a motion to dismiss are ... judicial documents,

and are generally entitled to a strong presumption of public access.”)); see also Brown, 929 F.3d

at 50 (requiring “compelling” reasons to seal documents filed “in connection with dispositive

motions such as motions for dismissal or summary judgment”); Cantinieri, 2024 WL 759317, at

*3 (quoting Bernsten, 307 F. Supp. 3d at 166–67) (quoting Lugosch, 435 F.3d at 126) (“[j]ust as

with documents submitted in connection with a Motion for Summary Judgment, documents filed

in connection to a Motion to Dismiss ‘are judicial documents to which a presumption of

immediate public access attaches under both the common law and the First Amendment.’”).

Here, Plaintiff seeks to seal an exhibit (ECF No. 22-15) to Defendants David P. Fallon’s

and Law Office of David P. Fallon, PLLC’s (“Defendants”) Motion to Dismiss (ECF No. 21) and

redact paragraph 21 of Defendants’ Declaration in Support of the Motion to Dismiss (ECF No.

22). (ECF No. 66 at 1.) Thus, these documents submitted in connection with their Motion to

Dismiss, clearly satisfy the first part of the Lugosch test. See TileBar v. Glazzio Tiles, 723 F.

Supp. 3d 164, 208–09 (E.D.N.Y. 2024) (“The Milestone Price List and TileBar Work Portfolio,

which are submitted by Defendants in connection with their motions to dismiss, easily satisfy

this threshold.”)

However, Plaintiff argues that as the Motion to Dismiss (ECF No. 21) has been denied

with leave to renew (Electronic Order dated 5/23/25) and subsequently withdrawn due to the

settlement in principle (ECF Nos. 57, 64), the documents “are irrelevant to the adjudicative

process … [and] serve no legal purpose.” (ECF No. 66 at 1.) This is a matter of first impression

to the undersigned. That is, when a document would be deemed a judicial document generally

such as those filed in connection with a motion to dismiss but for the fact that the motion no

longer is before the Court. The question becomes, does withdrawal of a motion change the nature

of the original document(s) filed. It does not.

Indeed, if a case settles or otherwise is resolved prior to a Court’s ruling on the merits of

the motion, the condition of the filings remains that of a “judicial record.” See Bernstein, 814

F.3d at 140 (collecting cases) (“The fact that a suit is ultimately settled without a judgment on the

merits does not impair the “judicial record” status of pleadings.); DXC Tech. Co. v. Hewlett

Packard Enter. Co., No. 19-CV-7954 (VEC), 2019 WL 4621938, at *1, n.2 (S.D.N.Y. Sept. 11,

2019) (same).

In a case with a somewhat similar request, the Court denied a motion to seal. See Sigma

Lithium Corp. v. Gardner, No. 23-CV-7403 (DEH), 2025 WL 1268311 (S.D.N.Y. May 1, 2025).

In Sigma Lithium Corp., Plaintiff requested to seal and redact exhibits and portions of its

opposition brief, which the Court had previously denied. Id. at *7. Plaintiff suggested that the

documents sought to be sealed should not be considered in ruling the dispositive motion and

thus, are not judicial documents. Id. at *8. At the same time, Plaintiff requested to withdraw the

documents in question and refile the brief. Id. The Court noted that “it is well-settled that

documents submitted to a court for consideration in connection with a dispositive motion ‘are—

as a matter of law—judicial documents to which a strong presumption of access attaches.’” Id.

(citing Lugosch, 435 F.3d at 121). Thus, the Court could not “maintain the documents under seal

while ignoring them.” Id. Rather, the Court construed “Sigma's request to withdraw the exhibits

as an admission that the arguments the exhibits purported to support are irrelevant to the Court's

consideration of the Motion to Dismiss—essentially, frivolous.” Id. Thus, the Court removed the

documents by striking the exhibits and likewise denied Plaintiff’s request for redactions as

“nearly all of the material sought to be redacted [were] now publicly available in Defendants’

reply brief.” Id.

The documents in question here were submitted in connection with the motion to dismiss

and have been available to the public since November 12, 2024. See id. Likewise, the documents

were relevant when the motion was ripe for ruling. See Samsung C&T Am., Inc. v. Tommy

Bahama Grp., Inc., No. 20-CV-10348 (JPC), 2022 WL 624555, at *1 (S.D.N.Y. Mar. 3, 2022)

(“In doing so, the Court found that the redactions requested by Tommy Bahama were not

relevant to the disposition of Samsung's motion for partial judgment on the pleadings and

contained confidential and sensitive commercial information.”)

Therefore, the documents remain deemed as judicial documents. As such, the Court next

considers whether there is a presumption of access associated with the documents and whether

there are any countervailing concerns. See Lugosch, 435 F.3d at 119.

II. Presumption of Access Associated with the Documents

Judicial documents are presumptively subject to public inspection. Amodeo, 71 F.3d at

1047. “The presumption of public access exists along a continuum.” Olson v. Major League

Baseball, 29 F.4th 59, 89 (2d Cir. 2022). “The strongest presumption attaches where the

documents ‘determin[e] litigants’ substantive rights,’… and is weaker where the ‘documents play

only a negligible role in the performance of Article III duties[.]’” Id. (citing Amodeo, 71 F.3d at

1049-50).

Indeed, where documents “directly affect an adjudication,” or are used to determine the

substantive rights of the parties, the presumption of access is “at its zenith” and can only be

overcome by extreme circumstances. 42West LLC v. Gould, No. 21-CV-1581 (OTW), 2024 WL

4263235, at *2 (S.D.N.Y. Sept. 20, 2024). With that, the presumption to public access here is

strong. See Olson, 29 F.4th at 90 (2d Cir. 2022) (citing Brown, 929 F.3d at 50) (“Thus, a strong

presumption attaches to materials filed in connection with dispositive motions, such as a motion

to dismiss or a summary judgment motion.”); see also Spectrum Dynamics Med. Ltd. v. Gen.

Elec. Co., No. 18-CV-11386 (VSB) (KHP), 2023 WL 7126251, at *2 (S.D.N.Y. Oct. 30, 2023)

(“Because a Motion to Dismiss is potentially dispositive of a party's claims, a strong presumption

of public access attaches to these documents.”)

Accordingly, the presumption of access to the documents requested to be sealed are “at

its zenith” and the Court must now analyze whether any countervailing concerns overcome such

a high presumption of accessibility to justify the exhibits to the motion to dismiss being filed

under seal. See Greater Miami Baseball Club Ltd. P'Ship. v. Selig, 955 F. Supp. 37, 39 (S.D.N.Y.

1997) (“Only where countervailing considerations of privacy are sufficient to overcome the

presumption may the [parties] be denied access to such documents.”)

III. Countervailing Concerns to Overcome the Presumption

To overcome the presumption of public access, the party seeking to seal bears the burden

of showing that countervailing, “substantial interests” outweigh the presumption. See Under

Seal v. Under Seal, 273 F. Supp. 3d 460, 469 (S.D.N.Y. 2017). Substantial interests generally

include “a third party’s personal privacy interests, the public’s safety, or preservation of attorney-

client privilege.” Id. at 647. When analyzing whether countervailing concerns, like privacy

interests, outweigh the presumption of access, courts should consider the degree to which the

subject matter is traditionally considered private rather than public, the nature and degree of

injury that may result from disclosure, and the reliability of such information. See Suffolk Reg'l

Off Track Betting Corp., 2025 WL 1384157, at *3 (citing Amodeo, 71 F.3d at 1050-51). When

these factors “outweigh the value to the public of accessing the document at issue, then that

document should be sealed.” Forbes IP (HK) Limited v. Media Business Generators, S.A. de

C.V., No. 23-CV-11168 (JGLC), 2024 WL 1743109, at *8 (S.D.N.Y. Apr. 23, 2024) (citation

omitted).

Here, the general countervailing concerns such as privacy interests, public safety or

preservation of attorney-client privilege are not discussed. Rather, Plaintiff offers that the sealing

of these documents would address Defendants’ attacks on Plaintiff. (ECF No. 66 at 5.)

Moreover, Plaintiff cites to Brown, for the proposition that Courts should prevent their dockets

from “becom[ing] a vehicle for improper purposes.” Brown, 929 F.3d at 47. However, Brown

also discussed that the presumption of public access is high in connection to dispositive motions

and that the District Court must conduct a “particularized review” when determining if the

“public access outweighs any countervailing privacy interests.” Id. at 49-51.

Plaintiff also discusses the reputational harm that will occur if this motion is denied.

(ECF Nos. 66 at 6, 8; 69 at 4.) Notably, Courts have held that protecting reputation is not enough

to overcome public access. See Lewis v. Laz Parking Ltd., LLC, No. 25-CV-02341 (MMG), 2025

WL 1184553, at *2 (S.D.N.Y. Apr. 23, 2025) (collecting cases); Badinelli v. Tuxedo Club, No.

15-CV-06273 (VLB), 2018 WL 6411275, at *2 (S.D.N.Y. Dec. 6, 2018) (denying motion to seal)

(“Protection against the possibility of future adverse impact on employment does not overcome

the presumption of public access.”); Zabolotsky v. Experian, No. 19-CV-11832 (GHW), 2021

WL 106416, at *3 (S.D.N.Y. Jan. 12, 2021) (denied motion to seal after Plaintiff argued it was

“for the sake of [her] livelihood and professional and personal reputation”) (“It is well-settled

that neither generalized concerns of adverse publicity nor the possibility of future adverse impact

on employment outweigh the presumption of public access”) (internal quotation marks and

citation omitted).

Finally, “once ‘[t]he genie is out of the bottle,’ the Court does ‘not [have] the means to

put the genie back.’” Moore v. Experian, No. 23-CV-673 (PAE) (SLC), 2023 WL 7491515, at *1

(S.D.N.Y. Nov. 9, 2023) (citing Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir.

2004)). As previously noted, these documents were filed on November 12, 2024. Failure to take

prompt action in requesting that public documents be sealed may, alone, be a justifiable reason to

deny a motion to seal. Rollag v. Cowen Inc., No. 20-CV-5138 (RA), 2020 WL 4937462, at *3

(S.D.N.Y. Aug. 24, 2020) (citing Fischman v. Mitsubishi Chem. Holdings Am., Inc., No. 18-CV-

8188 (JMF), 2019 WL 3034866, at *2 (S.D.N.Y. July 11, 2019)). This is Plaintiff’s second

request to move to seal the same documents. (See ECF Nos. 41, 66.) The first request came three

months after the filing and now, this request nearly eight months later. (See id.)

Accordingly, Plaintiff has not overcome the presumption of public access, and the Motion

to Seal is denied.

CONCLUSION

Based upon the foregoing, Plaintiff’s Motion to Seal (ECF No. 66) is DENIED.

Dated: Central Islip, New York

July 11, 2025

S O O R D E R E D:

James M. Wicks

/s/

JAMES M. WICKS

United States Magistrate Judge