MEMORANDUM & ORDER
DENIS R. HURLEY, District Judge.
The purpose of this Memorandum and Order is to address and, to the extent necessary, resolve the issues raised in the plaintiffs' July 8, 2016 letter. By way of format, the subjects will be discussed sequentially under the captions utilized by plaintiffs.
Deadline by Which the County Must Deposit
the Amount of the Judgment into Court
In the Court's final judgment signed on April 11, 2014, defendants were directed "to deposit into Court the sum of $11,508,000 within 30 days." (Apr. 11, 2014 Final Judgment at 2.) Stays were thereafter put in place pending appeal.
The Second Circuit affirmed the final judgment with its mandate being issued on June 16, 2016. As a result, the deposit into Court was to be made by July 16, 2016. Plaintiffs reminded defendants of this obligation by, inter alia, a letter dated June 17th. Hearing nothing in response, plaintiffs provided the Court with a status report via their July 8th letter and an implicit request for the Court's assistance as to this — should such prove to be necessary — and some other "loose ends" discussed
Defendants responded in pertinent part thusly:
(Defs.' July 13, 2016 Letter at 2.)
The Court, like plaintiffs, is "glad to hear that County is able to comply with [the] July 16 deadline to pay the amount of the Final Judgment into Court in compliance with the 30-day period in the Final Judgment." (Pls.' July 13, 2016 Letter at 1.) Defendants' concomitant request that its payment provisions be restructured in the manner suggested is rejected for several reasons including:
(1) the April 11, 2014 Judgment, including the appeal therefrom, represents the law of the case, and defendants have proffered no convincing reason to disturb the Court's earlier directive,
(2) to the extent the County may be concerned about the interest earned on the deposited money prior to its disbursement, the $11,508,000 shall be deposited by the Clerk of Court into an interest bearing account with the interest earned inuring to the benefit of the County;
(3) the County's apparent suggestion that the $5,000,000 it proposes be deposited into a "Special Revenue Account" may ultimately prove to be sufficient to satisfy the defendants' payment obligations seems unrealistic given that there is already a charge of over $4,000,000 against the judgment. (
(4) The unconvincing character of the County's suggestion mentioned in the prior paragraph is not cured via its reference to the "Litigation Fund." (Defs.' July 13, 2016 Letter at 2.) No specific information concerning that fund has been proffered by defendants such as its amount, other present and likely charges against the account or, most importantly, the governmental procedures and accompanying time frames involved in withdrawing or replenishing monies from the cited source. As to the last consideration, class members and their counsel have an obvious interest after all these years of receiving the monies due them without having to navigate unnecessary potential bureaucratic delays which might come about should defendants' request be granted.
In sum, the County has represented that it is "ready, willing and able to pay any amount of that judgment into Court or a bank, if required." (
Proposed Revisions to Notices and Claim Forms
"[B]cause of the passage of more than two years and the completion of the appellate proceedings in the Second Circuit, the parties agree that the dates and certain other language in the notices and claim forms have to be revised before they can be mailed." (Pls.' July 8, 2016 Letter at 2.) Their agreement extends to the specific changes needed to update the mailings with one exception, to wit: "the timeframe for filing lawsuits for damages beyond the $500 per strip search." (Defs.' July 13, 2016 Letter at 2.)
Plaintiffs propose that the revised "start date of the 180-day tolling provision [should be changed] from the date of the entry of the Final Judgment, April 11, 2014, to August 15, 2015, the date by which the notices and claim forms are [now] to be mailed . . . and any further appeal to the United States Supreme Court has been resolved." (Pls.' July 8, 2016 at 2-3.)
In defendants' view, the 180-day tolling period should be deemed to have started running as of the "Second Circuit Court of Appeals Mandate which was issued on June 16, 2016," absent any reference to either the date the notices and forms are mailed to the class members or to the defendants' expressed intent to seek a writ of certiorari from the high court. (Defs.' July 16, 2016 Letter at 2.)
My goal in resolving the present dispute is to update the class notices and forms, not to alter the substance of the April 2014 judgment. That judgment provides that the 180-day toll was to run from the date of the judgment or, in the event of an appeal, the issuance of a mandate, not from the later mailings.
For the reasons indicated, the updating process will be appropriately accomplished consistent with the April 2014 judgment by measuring the 180 toll from June 16th of this year rather than the August mailing date urged by plaintiffs.
60 Days to File Fee Application
Plaintiffs ask for 60 days to file their post-judgment fee application. The County advises, as have plaintiffs, that the parties intend to discuss the issue with the hope of reaching an agreement "without the necessity of [plaintiffs] having to file a motion for same." (Defs.' July 13, 2016 Letter at 2-3.) Towards that end, defendants suggest that the 60-day period run from the time they are in receipt of plaintiffs' "time records which has yet to be accomplished." (
Having considered the parties' position, it is ordered that (1) plaintiffs provide defendants with their fee demand by September 5, 2016 with supporting documentation, and (2) if parties are unable to agree on the amount to be paid, the required motion shall be briefed as set forth
In accordance with the foregoing, it is hereby
ORDERED that defendants deposit the full amount of the final judgment ($11,508,000.00) with the Clerk of Court on or before August 15, 2016; and it is further
ORDERED that the monies deposited with the Clerk of Court shall be held in an interest bearing account until such time as the Court enters any Orders respecting same; and is it further
ORDERED that defendants shall (1) advise the Court when a petition for certiorari has been filed or when the time to file said petition has expired without a petition having been filed; and (2) in the event a petition is filed advise the Court of any ruling on the petition within ten (10) days of said ruling; and it is further
ORDERED that the deadline for any fee application by plaintiffs is extended to on or before October 30, 2016 with defendants' papers in opposition to be filed on or before 15 business days of the actual date of plaintiffs' filing and the reply, if any, being due on or before 10 business days thereafter; and it is further
ORDERED that the agreed upon changes to the claim form set forth in plaintiff's letter of July 8, 2016 are approved and that the claim form shall state, with respect to the time limits for filing a lawsuit for damages beyond the $500 per strip search, as follows: