Case 2:10-cv-02262-DRH-ARL Document 1 Filed 05/18/10 Page 1 of 14 PageID #: 1

1 0 UNlTED STATES DISTCrVOu;'T
EASTERN DISTRICT OF NEW YORK

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--------------------------------------------------------------J{ CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY; and THE WORKPLACE PROJECT,

*

*

) LONG ISLAND OFFICE

Plaintiffs,

(£:J/ COMPLAINT

-versus-

10Civ, _ __

TOWN OF OYSTER BAY; JOHN VENDITTO, Town Supervisor of the Town of Oyster Bay,
Defendants. --------------------------------------------------------------J{

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PRELIMINARY STATEMENT 1. This is a civil rights action about the ability of predominantly Latino, immigrant day laborers to exercise their right to solicit work on the streets and sidewalks of their towns and villages without fear of being targeted because of their race and national origin. Plaintiffs represent residents of the Town of Oyster Bay who for years have successfully obtained temporary jobs by standing on local street corners and soliciting work from homeowners, contractors and other employers who pick them up and take them to job sites. These residents' ability to seek work has been significantly curtailed by the recent passage of Chapter 205.32 of the Code of the Town of Oyster Bay (the "Ordinance"), which unlawfully prohibits speech related to employment and was enacted specifically in response to and as a result of discriminatory community animus regarding this group of workers,

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2. While the purported purpose of the Ordinance is to address traffic and pedestrian safety, it does nothing to accomplish that goal. Instead, it sweeps in a wide variety of speech that has no adverse impact on traffic and pedestrian safety, fails to regulate speech that is indistinguishable from prohibited speech except in terms of the content of its communicative message, and is superfluous because the Town of Oyster Bay and the State of New York already have a range of laws and regulations in place to ensure traffic and pedestrian safety.
3. The reason for the poor fit between the Ordinance and its purported safety purpose is that, upon information and belief, such concerns did not motivate its passage. Rather, upon information and belief, the Ordinance was passed to prevent a group of predominantly Latino, immigrant day laborers from soliciting work in Oyster Bay so as to drive them out of their communities and out of the sight of residents who wish they were not there.
4. In pursuit of this true goal, the Ordinance reaches so far as to prohibit individuals and groups from engaging in general speech and advocacy intended to promote the security of employment.
5. Since the passage of the Ordinance, the day laborers that Plaintiffs represent have had great difficulty obtaining work. The Town has clearly signaled its intent to enforce the Ordinance by, among other things, posting warning signs, stationing law enforcement officials in areas where the day laborers have traditionally sought work, and threatening day laborers and their prospective employers. As a result, an entire community has lost its ability to earn a living wage.
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6. The Ordinance thus violates the free speech and equal protection rights of the laborers that Plaintiffs represent as well as the expressive rights of the Plaintiff organizations who seek to advocate their support for such laborers, and in so doing, abridges rights under the First and Fourteenth Amendments of the U.S. Constitution. The laborers and the Plaintiffs would like to be able to exercise th~ir right to solicit work and advocate for employment rights without fear of penalty and thus Plaintiffs ask the Court to declare the Ordinance unconstitutional and bar its enforcement.
JURISDICTION AND VENUE 7. This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3-4). 8. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that Plaintiffs' claims arise in the Eastern District of New York.
PARTIES 9. Plaintiff CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY ("Centro") is an unincorporated membership organization located in Locust Valley, New York. Its membership consists primarily of day laborers and their families who live and work in the Town of Oyster Bay and in particular in Locust Valley. The mission of Centro is to promote the right to work with dignity, respect and justice for the Locust Valley community. In particular, Centro's mission is to provide educational courses aimed at enhancing day laborers' professional and language skills and thus their ability obtain work, to operate as a gathering place for day laborers to exchange ideas and come together as a community, and to engage in community political advocacy intended to secure employment and the employment-related rights of day laborers.
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10. Plaintiff THE WORKPLACE PROJECT is an incorporated membership organization located in Hempstead, New York. Its membership is made up in part of Latino immigrant workers who live in Nassau County, Long Island and in particular in the Town of Oyster Bay. Its members fmance the Workplace Project's activities, and elect and serve as its leadership. The mission of the Workplace Project is to end the exploitation of Latino immigrant workers on Long Island and achieve socioeconomic justice for its members in the communities in which they live. One of its core projects is a day labor organizing project, through which members push for government policies that respect the rights of day laborers to seek work in peace. The Workplace Project also engages in political advocacy that is intended to secure employment and the employmentrelated rights of day laborers.
11. Defendant TOWN OF OYSTER BAY is located in Nassau County in New York State.
12. Defendant JOHN VENDITTO is the Town Supervisor of the Town of Oyster Bay.
FACTS The Town ofOyster Bay 13. The Town of Oyster Bay, in Nassau County on Long Island, has a population of about 300,000 people and consists of 18 hamlets and 18 villages. 14. Based on 2000 census numbers, the Town is more than 90% white, 5% Hispanic or Latino, 4% Asian, and less than 1% African American. 15. Oyster Bay's Latino and Hispanic community has consistently grown over the last several years, raising tensions between the newcomers and those whose families
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arrived before. Indeed, the Latino/Hispanic population almost doubled during the period 1990-2000; in 1990, the Town's population was only 3% Hispanic.
16. One of the Town's hamlets is Locust Valley. Based on 2000 census numbers, Locust Valley has a population of 3,521. Its population is overwhelmingly white, with 15% identifying as Hispanic or Latino.
17. Farmingdale is a village within the Town of Oyster Bay. Based on 2000 census numbers, Farmingdale has a population of 8,399. Nearly 90% of the population is white, with 12.6% identifying as Hispanic or Latino.
The Day Laborers in Oyster Bay 18. Day laborers have been gathering daily on the streets and sidewalks of Oyster Bay, in particular in Locust Valley and Farmingdale, for almost two decades in order to find the day work they rely upon to make a living. 19. The work the day laborers obtain, which consists mainly of short-term manual labor and construction work, constitutes their primary means of income. 20. The workers typically earn between $75-$125 per day for 8-12 hours of work. 21. In recent years, day laborers, especially in Farmingdale and Locust Valley, have often been subjected to harassment and intimidation by neighbors, government officials and law enforcement when they gather to seek work. The History ofAnti-Latino and Anti-Immigrant Sentiment on Long Island 22. As the population of Latino immigrants has grown in recent years, Latino day laborers and their supporters throughout Long Island have increasingly been subjected to discrimination, harassment, intimidation and violence.
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23. For example, the area has seen the emergence of anti-immigrant groups that encourage stereotyping and hatred toward Latinos and inflame community tensions. These groups have specifically targeted day laborers; for example, in contributing to the rejection of a proposed government-sponsored day laborer hiring center in Farmingdale.
24. Day laborers and other immigrants in Long Island have been the victim of hate crimes. In a 2006 survey by Hofstra University's Center for the Study of Labor & Democracy, over 43% of Long Island's day laborers reported being targeted for slurs based on their nationality, while more than one-quarter reported having been threatened while looking for work. A similar percentage reported having been physically assaulted while looking for work, a rate that is 109 times the national average.
25. In 2003, the house of Latino immigrants in Farmingville was fire-bombed. Three years earlier in the same town, two Mexican day laborers were brutally beaten after being lured out of their home by the promise of work. And when Fanningdale residents attempted to create a hiring site for day laborers, news reports indicated that someone left a .50-caliber anti-aircraft shell and carved a depiction of a gun into a wooden picnic table at the proposed location.
26. Most recently, in 2008, Ecuadorean immigrant Marcello Lucero was stabbed to death on Long Island by seven teens who were specifically trolling for a Hispanic victim, a local practice one witness in the case described as "beaner hopping." In reference to this practice, the district attorney prosecuting the case stated, "We know for sure that there are more victims out there."
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The Introduction o/the Ordinance 27. At a March 31, 2009, Town Board meeting, several Oyster Bay residents complained about the "invasion of day laborers," accused them of urinating and defecating in public, and called the laborers "unsafe and unsightly." One resident stated that he felt like he did not "belong" in the neighborhood anymore. 28. Discussing this issue at that same meeting, Town Supervisor John Venditto described his background as the son of an Italian immigrant who "had to follow certain rules," in contrast to the different sort of immigrants who started arriving "in the 1970's." 29. Following that meeting, the Town Board proposed an ordinance (hereinafter, "the Ordinance") intended to prohibit the solicitation of labor from the town's streets and sidewalks. 30. The Ordinance prohibits any person standing on a public street from stopping or attempting to stop a passing car for employment-related purposes. It also forbids drivers from stopping their cars for the same purposes. 31. The Ordinance defines "soliciting employment" to include a wide variety of speech, including "any request, offer, enticement or action" that seeks or offers work or "that seeks to . . . secure employment." In so doing, it prohibits general advocacy designed to secure employment for workers. 32. The Ordinance also specifies particular prohibited methods of speech, including "waving arms, making hand signals, shouting . . . , jumping up and down, waving signs ... standing in the [street], or entering the [street]."
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The Purpose ofthe Ordinance 33. The expressed legislative intent of the Ordinance is "to protect the health, safety and welfare of motorists and pedestrians using public rights-of-way within the Town of Oyster Bay, and persons standing in close proximity to said public rights-ofway, from the dangers of obstruction, distraction and delays of traffic caused by the solicitation of employment by pedestrians from or directed to operators or occupants of motor vehicles ...." 34. Despite the Ordinance's professed focus on traffic concerns, Town Supervisor Venditto has stated in reference to the Ordinance that "My predisposition is for these people to get on the highway to citizenship; in the meantime, the ordinance is a short-term solution." He has further explained that the purpose of the Ordinance is "to help with the plight of the day laborer. . .. We're only asking that [the day laborers] assimilate. " 35. On May 26, 2009, the Town held a public hearing on the proposed ordinance. 36. Residents who spoke in favor of the Ordinance expressed their discomfort at having unfamiliar residents in their midst. One resident explained that "people feel uncomfortable about having groups of men who they don't know, who they don't recognize," and whom they don't perceive as their neighbors standing on the streets. 37. Later acknowledging this resident, Mr. Venditto affirmed that "people are frightened, people are afraid." 38. Residents also expressed fear for their safety due to the presence of immigrant day laborers in their midst. One resident stated: "I just want to be safe
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walking to the deli and not be surrounded by mobs of people." Another said that she wanted to live in a "safe neighborhood." A third resident stated that he does not want to feel intimidated driving out of his neighborhood due to the presence of day laborers on the comer.
39. Residents at the meeting also described the day laborers in derogatory terms, characterizing them as "unsightly" and stating that their presence on the street comer "doesn't look appropriate." One resident stated that "Someone driving through your Town and sees this, like, gee, why would I want to come to Locust Valley[?]"
40. Many residents linked their support of the Ordinance directly to their feelings about immigration policy and undocumented workers. One resident explained: "[M]y point being that my grandparents ... came here legally. That's the issue that I have. I don't have any problem with the people looking for work, but I do have a problem with them looking for work in my neighborhood."
41. Another resident explained: "My father came straight from Spain, but he went to school, learned the language .... Don't stand on a street comer. What will you learn there?"
42. Yet another resident praised the Town Board's introduction of the Ordinance for trying to "straighten out what might be the failed federal policies that may have contributed to this problem." In response, Mr. Venditto asked, "That may have?" Clarifying, the resident explained, "Well, I'm being kind."
43. In addition to the residents, government officials who spoke at the public hearing expressly linked their support of the Ordinance to their opposition to illegal immigration.
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44. For example, Mr. Venditto stated: "For the last 40 years, our government who we count on to protect us has turned its back on us ..." and "If they can't go on a pathway to citizenship, then they can't stay in this country." He admonished day laborers that "you gotta [sic] work towards blending into the society . . .. When you blend in to society nobody is going to be afraid of you anymore."
45. At the public hearing, none of the statements made by members of the public or Town Board members indicated that a single traffic accident had occurred as a result of the day laborers' soliciting work.
46. Furthermore, the Town Code, the New York State Vehicle and Traffic Law, and the New York State Penal Code already contain numerous provisions enabling the town to protect traffic and pedestrian safety, punish littering, control noise levels, prevent disorderly conduct, and regulate solicitation in streets.
47. The Town had no basis for concluding that the Ordinance was necessary to address traffic or pedestrian safety concerns.
48. The Town Board did not gather or examine any statistics as part of its consideration of the Ordinance.
49. The legislative record of the Ordinance presents no evidence or factual support, whether statistical or anecdotal, for the claim that there have been traffic problems presented by the day laborers' solicitation of work.
50. The legislative record of the Ordinance presents no evidence or factual support, whether statistical or anecdotal, for the claim that existing laws are insufficient to protect traffic and pedestrian safety.
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51. Upon information and belief, no traffic accident has ever been caused in Oyster Bay as a result of the day laborers' solicitation of work.
52. On September 29, 2009, the Town Board enacted the Ordinance by a unanimous vote of 7-0.
The Consequences ofthe Ordinance 53. Since the passage of the Ordinance, the Town has stationed law enforcement officers in areas where day laborers traditionally gather. .54. In areas where day laborers often gather, the Town posted signs warning about the new Ordinance, signaling its intent to enforce the law. 55. Upon information and belief, Town officials have reached out to persons affected by the Ordinance, including employers who commonly employ day laborers, to warn them about enforcement of the Ordinance. 56. As a result of the Ordinance's passage, the presence of law enforcement, and the other signals the Town has made of its intent to enforce the Ordinance, day laborers and their potential employers fear being penalized under the Ordinance. 57. Because of the Ordinance, many of the day laborers in Oyster Bay, including members of the Plaintiff organizations, have not been able to obtain work. 58. Some day laborers, including members of the Plaintiff organizations, have been afraid to return to the public areas from which they solicited work in the past. 59. Of the day laborers who have continued to attempt to solicit work, many have been unable to find work because their prospective hirers have been intimidated by the law to avoid hiring the day laborers and because they themselves have been intimidated by the law to avoid soliciting jobs.
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60. In addition to loss of wages the day laborers have also been sUbjected to harassment by law enforcement and government officials.
61. Officers have approached the day laborers, questioned them about why they are standing on the street corner, photographed them, and threatened to ticket them if they return.
62. A Town agent driving a blue truck with the Town seal on its side has driven by one of the hiring sites frequently and intimidated and shouted at the day laborers, telling them to leave the area.
63. Some of the day laborers have experienced passersby yelling racial epithets at them, yelling at them to leave the area, photographing them in an intimidating manner, and throwing things at them, like soda cans and cups of ice, as they drive by in vehicles.
64. Because of the broad scope of the Ordinance, Plaintiffs fear that some of the advocacy work in which they regularly engage may be unlawful because it is designed to secure employment for day laborers, and it may be directed at occupants of vehicles.
FIRST CAUSE OF ACTION (First Amendment)
65. Defendants' actions violate the rights of Plaintiffs and their members under the First Amendment, as incorporated by the Fourteenth Amendment, of the U.S. Constitution and secured by 42 U.S.C. §1983.
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SECOND CAUSE OF ACTION (Equal Protection)
66. Defendants; actions violate the rights of Plaintiffs and their members to equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution and secured by 42 U.S.C. §!983.
WHEREFORE, the plaintiffs request that this Court: (1) Declare Chapter 205.32 of the Code of the Town of Oyster Bay unconstitutional because it violates the First Amendment, as incorporated by the Fourteenth Amendment, and the equal protection clause of the Fourteenth Amendment to the United States Constitution; (2) Enter a preliminary injunction that enjoins defendants from enforcing Chapter 205.32; (3) Enter a permanent injunction that enjoins defendants from enforcing Chapter 205.32 of the Code of the Town of Oyster Bay in perpetuity; (4) Award the Plaintiffs attorneys' fees and costs pursuant to 42 U.S.C. §1988; and (5) Grant any other relief the Court deems appropriate.
Respectfully submitted,
GHTON (CS-IOl) ARTHURE ENBERG (AE-2012) ADRIANA PINON (AP-0798) SAMANTHA FREDRICKSON* New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 ALAN LEVINE (AL-S297) CHRISTINA lTURRALDE (CI-60S!) LatinoJustice PRLDEF
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Dated: May 18,2010 NewYork,NY

99 Hudson Street, 14th Floor New York, NY 10013 (212) 219-3360
LEE GELERNT (LG-8511) FARRIN ANELLO* American Civil Liberties Union 125 Broad St., 17th Floor New York, NY 10004 (212) 549-2500
Counsel for Plaintiffs
"'Not admitted to the Eastern District of New York

On the Complaint:
Melissa Berger Emily Garber Katherine Greenberg Meheret Kassa Law Students, New York University School of Law New York Civil Rights Clinic

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 Case 2:10-cv-02262-DRH-ARL Document 10 Filed 05/20/10 Page 1 of 2 PageID #: 58

DIsTg)lo:T UNITED STATES

1 0

2 262

EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------){

* PoW \ R 2010 *

CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY; and THE WORKPLACE

U:)f.>..;., ;2LAND OFFICE

PROJECT,

10 Civ. _ __

-versus-

Plaintiffs,

ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING ORDER

TOWN OF OYSTER BAY; JOHN VENDITTO, Town Supervisor of the Town of Oyster Bay,

Defendants. --------------------------------------------------------------){
Upon the Memorandwn of Law in Support of Motion for Preliminary Injunction

and Temporary Restraining Order; the Affirmation of Corey Stoughton, executed on May

18,2010; and the affidavits of Nadia Marin and Luz Torres, executed on May 13, 2010;

and the Complaint attach~~ here~ it is hereby ORDERED that the above named
-"--
9 Defendants show before this Court, at Room ;'0 , United States Courthouse, 100

,o..J d- (h
Federal Plaza, Central Islip, NY I I 722-443, on /I

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, or as

soon thereafter as counsel may be heard, why an order should not be issued pursuant to

Rule 65(b) of the Federal Rules Of Civil Procedure granting a preliminary injunction

staying enforcement of Chapter 205.32 of the Code of the Town of Oyster Bay.

It is further ORDERED that from this date until the hearing on Plaintiffs' motion

for preliminary injunction, enforcement of Chapter 205.32 of the Code of the Town of

Oyster Bay is hereby enjoined pursuant to the Court's authority to issue a temporary

restraining order.

Case 2:10-cv-02262-DRH-ARL Document 10 Filed 05/20/10 Page 2 of 2 PageID #: 59

It is further ORDERED that a copy of this order,. together with the papers upon

which

it

is

granted,

be

PefB811ally

served

upo~CtOheJ(

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Defendants

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theif

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llid before

'd-O, 2010, at ~d that such service be deemed good an

sufficient.

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SO ORDERED.

Dated: .s-/aQ/dDIO

/(Uni~4ta"tes'~ 1~-udgie ~I

 
 Case 2:10-cv-02262-DRH-ARL Document 33 Filed 05/17/11 Page 1 of 6 PageID #: 184
MANDATE 10-2505-cv Centro de la Comunidad Hispana v. Town of Oyster Bay

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION

TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WI TH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WI TH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVEA COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 26th day of April, two thousand eleven.

PRESENT:

BARRINGTON D. PARKER, GERARD E. LYNCH, RAYMOND J. LOHIER, JR.
Circuit Judges.

------------------------------------------------------------------

CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY and THE WORKPLACE PROJECT,
Plaintiffs-Counter-Defendants-Appellees,

v.

No. 10-2505-cv

TOWN OF OYSTER BAY and JOHN VENDITTO, Town Supervisor of the Town of Oyster Bay,
Defendants-Counter-Claimants-Appellants.

--------------------------------------------------------------------

FOR APPELLANTS:

JONATHAN SINNREICH (Timothy F. Hill, on the brief), Sinnreich Kosakoff & Messina LLP, Central Islip, New York, Colin O’Donnell, Town of Oyster Bay, Oyster Bay, New York.

FOR APPELLEES:

COREY STOUGHTON (Arthur Eisenberg, Adriana Pinon, on the brief), New York Civil Liberties Union Foundation, New York, New York, Alan Levine, Christina Iturralde, LatinoJustice PRLDEF, New York, New York, Lee Gelernt, American Civil Liberties Union, New York, New York.

MANDATE ISSUED ON 05/17/2011

Case 2:10-cv-02262-DRH-ARL Document 33 Filed 05/17/11 Page 2 of 6 PageID #: 185

FOR AMICI:

Jessica Karp, National Day Laborer Organizing Network, Los Angeles, California.

Appeal from the United States District Court for the Eastern District of New York

(Denis R. Hurley, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the ruling of the district court is AFFIRMED.

In 2009, the Town of Oyster Bay passed an ordinance prohibiting day laborers

standing near a public right-of-way from stopping or attempting to stop vehicles to solicit

work, and drivers frompicking up such laborers. On May 18, 2010, two organizations of day

laborers sued the Town and its Supervisor (together, “the Town”) in the district court,

seeking to enjoin the town from enforcing the ordinance on the ground that the ordinance

violated their constitutional rights to free speech and equal protection of the laws. They

immediately moved, on free-speech grounds only, for a temporary restraining order (“TRO”)

that would bar enforcement “until the hearing on [their]motion for preliminary injunction.”

The next day, the district court heard argument but neither side presented evidence.

On the day following that, the district court issued the requested TRO, finding, “by way of

partial conclusion . . . on the limited information that is before me, . . . that the plaintiffs have

established a substantial likelihood of success and . . . irreparable injury.” The district court

scheduled an evidentiary hearing on the preliminary injunction motion for May 28 and June

1, with the possibility of further sessions if necessary.

On May 25, the Town sought to bypass the hearing and convert the TRO into an

appealable preliminary injunction. Although the plaintiffs initially opposed this request,

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seeking instead to develop a record at a hearing, they ultimately acquiesced. Accordingly, the district court cancelled the scheduled hearings and entered a prelim inary injunction as stipulated by the parties on June 1. The Town then appealed.
We have no jurisdiction to review the TRO, absent special circumstances not present here. See Romer v. Green Point Savings Bank, 27 F.3d 12, 15 (2d Cir. 1994). We do have jurisdiction over the second order, as an “interlocutory order[] . . . gra nting . . . [an] injunction[],” 28 U.S.C. § 1292(a)(1); see El Paso Natural Gas Co. v. Neztsosie , 526 U.S. 473, 482 (1999), but that order merely acceded to the Town’s unopposed request to enjoin itself. We would be hard pr essed to sa y that the district court abused its discretion in granting such a request, at least absent harm to unrepresented third parties or conflict with law or public policy (none of which are argued here).
Of course, the Town does not actually seek review only of the district court’s acquiescence to its request; rather, it seeks a decision on the merits of the plaintiffs’ claims. But, even assuming that we have discretion to reach back to the m erits of the otherwiseunreviewable TRO, we do not ha ve a proper record on which to address the m erits. The entire record consists of a complaint, the transcripts of legal argument in the district court, the district court’s order, and two affidavits that do little m ore than address the plaintif fs’ standing to sue. The district court made no findings of fact and only tentative conclusions of law, in keeping with the rushed nature of an application for a TRO but contrasting with the requirements for a true preliminary injunction. See Fed. R. Civ. P. 52(a)(2). This gives us little ground to resolve any merits questions.
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Although some preliminary injunction motions may be resolved without taking any evidence, see SEC v. Frank, 388 F.2d 486, 490 (2d Cir. 1968), this is not such a case. The Town raises two issues on appeal: (1) whether the ordinance in question bars “commercial speech related to illegal activity,” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 564 (1980); and (2) whether the ordinance is “narrowly tailored to achieve [its] desired objective,” Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989). On the first issue, the plaintiffs do not concede the illegality of their proposed employment either as a factual or legal m atter, making the issue im possible to resolve without at least som e minimal evidence. And we have previously noted that the second issue, narrow tailoring, usually dem ands a “fact specific and situation specific inquiry.” Deegan v. City of Ithaca, 444 F.3d 135, 142 (2d Cir. 2006). Neither question is well suited to resolution without evidence.
We intend no criticism of the district court for granting the TRO without a developed factual record. Temporary restraining orders are “characteristically issued in haste . . . to forestall irreparable harm ,” which is one reason why they are generally “exem pt from appellate review.” Romer, 27 F.3d at 16. Nor can the district court be faulted for granting an unopposed m otion to extend the TRO into a prelim inary injunction. Where the appropriateness of such an injunction is contested, however, a district court can benefit from “a hearing that will illuminate the factual issues although probably not settling them.” Frank, 388 F.2d at 419. Our review can benefit from such a hearing as well.
The Town argues that the district court “adopted, for purposes of its decision, every
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ultimate factual contention that the Town proffered to prove at such a hearing,” and asks us to review only the legal standards the district court employed. But even if we agree with the Town’s characterization of the district court’s ruling (the transcript of its decision is not so clear), that ruling would still not be fit for rveiew. To accept the Town’s invitation to assume a particular set of asserted but disputable facts would be to rule on abstract legal questions that may prove to be entirely hypothetical. Th e factual disputes would still have to be resolved on remand. For instance, a conclusion that the district court interpreted the “illegal activity” exception too narrowly, as the Town argues, would not defeat the plaintiffs’omtion for a preliminary injunction. We would still have to rem and for the very hearing that the Town sought to avoid, a hearing to determine, preliminarily, whether and to what degree the barred speech is “related to illegal activity.” Central Hudson, 447 U.S. at 564. Likewise, a conclusion that the district court imposed the narrow-tailoring requirement too strictly would only set up a hearing under a different standard. In effect, we would be addressing difficult questions of constitutional law in an abstract way. After facts were found, the losing party could then appeal again, and we might well discover that it had not been necessary to reach those questions at all. A party may not compel this Court to address issues prematurely on an inadequate record by asking the judge to turn an unreviewable TRO into an appealable preliminary injunction, precisely to avoid a hearing that would illuminate what is at stake in this case.
Accordingly, we affirm the district court’s decision to grant the Town’s request to enter a preliminary injunction. We em phasize that the distric t court retains the power to
5

Case 2:10-cv-02262-DRH-ARL Document 33 Filed 05/17/11 Page 6 of 6 PageID #: 189 reconsider its order granting the pr eliminary injunction, upon request or sua sponte. We leave it to the parties and ultimately to the discretion of the district court whether the most efficient course is to leave the preliminary injunction in place and proceed to trial, to hold a preliminary injunction hearing as originally planned, or to “advance the trial on the merits and consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2). For the foregoing reasons, we AFFIRM the district court’s order and REMAND for further proceedings. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
6

 
 Case 2:10-cv-02262-DRH-ARL Document 19 Filed 06/01/10 Page 1 of 2 PageID #: 102

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------}{
CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY; and THE WORKPLACE PROJECT,
Plaintiffs,
-versus-

Civ. 10-2262

TOWN OF OYSTER BAY; JOHN VENDITTO, Town Supervisor of the Town of Oyster Bay,
Defendants.
--------------------------------------------------------------}{
ORDER GRANTING PRELIMINARY INJUNCTION WHEREAS the Plaintiffs have filed a complaint alleging that Chapter 205,.32 of the Code of the Town of Oyster Bay is unconstitutional under, inter alia, the First Amendment to the U.S. Constitution, and WHEREAS on May 18,2010, the Plaintiffs moved by Order to Show Cause for a preliminary injunction and temporary restraining order enjoining enforcement of Chapter 205.32, 'Yld WHEREAS on May 20, 2010, the Court granted Plaintiffs' application for a temporary restraining order on the grounds that Plaintiffs demonstrated a substantial likelihood of success on the merits of their First Amendment claim and irreparable harm, and set a schedule for a hearing on the application for preliminary injunction, and WHEREAS Defendants have requested that the Court forego a hearing on the application for preliminary injunction and further development of the factual record and

Case 2:10-cv-02262-DRH-ARL Document 19 Filed 06/01/10 Page 2 of 2 PageID #: 103

issue a preliminary injunction based on the Court's opinion and findings of May 20, 2010, so as

to enable Defendants to appeal that ruling, and

WHEREAS, Plaintiffs do not oppose this request,

For the reasons set forth on the record by the Court on May, 20, 2010, a copy of the

transcript of which is attached and incorporated herein, IT IS HEREBY ORDERED that

Defendants Town of Oyster Bay and John Venditto, together with their subdivisions and

representatives are hereby preliminarily enjoined from enforcing Chapter 205.32 of the Code of

the Town of Oyster Bay, pending final resolution ofthe merits of Plaintiffs' First Amendment

claims.

SO ORDERED.

Dated: Central Islip, New York June 1,2010

Denis R. Hurley I •,-

/

Senior District Judge

2

Case 2:10-cv-02262-DRH-ARL Document 19-2 Filed 06/01/10 Page 1 of 26 PageID #: 104
L

52

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

2

3 C-E-N-T-R-O---D-E--L-A--C-O-M-U-N-I-D-A-D--H-I-S-P-A-N-A-X

4 DE LOCUST VALEY;

and THE WORKPLACE PROJECT

5

CV 10-2262

6

Plaintiffs,

7

-against-

United States Courthouse Central Islip, New York

8 TOWN OF OYSTER BAY;

JOHN VENDITTO, Town Supervisor

9 of the Town of Oyster Bay,

May 20, 2010

10

Defendants.

2:00 p.m.

-------------------------------X
11

TRANSCRIPT OF PROCEEDINGS

12

BEFORE THE HONORABLE DENIS R. HURLEY

UNITED STATES DISTRICT COURT JUDGE

13

14 APPEARANCES:

15 For the Plaintiffs: 16 17

NEW YORK CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004 By: COREY STOUGHTON, ESQ.

18
For the Defendants:
19
20

SINNREICH KOSAKOFF & MESSINA
267 Carleton Avenue, Suite 301 Central Islip, NY 11722 By: JONATHAN SINNREICH, ESQ.

21

TOWN OF OYSTER BAY

Office of The Supervisor

22

54 Audrey Avenue

Oyster Bay, NY 11771

23

By: COLIN F. O'DONNELL, ESQ.

24

25

OWEN WICKER, RPR OFFICIAL COURT REPORTER

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:1

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53

1

(Case called.)

2

THE COURT: As indicated yesterday, what is

3 before me today is an application by plaintiffs for a

4 temporary restraining order. That's the sole matter that

5 will be addressed today.

6

Yesterday, we set a schedule for the preliminary

7 injunction hearing, and that process will start on

8 May 28th, and it will continue to June 1st, to the extent

9 that is required. And if it's not concluded by June 1st,

10 we'll address the matter then as to when we'll continue

11 the preliminary injunction hearing.

12

At the conclusion of the proceedings yesterday,

13 after I had heard extensive oral argument on the temporary

14 restraining order application made by plaintiffs, the

15 parties asked to submit further briefing. In defendants'

16 case, it would be initial briefing on the issue of

17 standing. That was done.

18

By way of background, the complaint in this case

19 has two constitutional claims. Both seek the same relief,

20 that being the stay of the enforcement and ultimately a

21 declaration that the subject ordinance is

22 unconstitutional.

23

The first cause of action is predicated on a

24 First Amendment violation. The second cause of action

25 sounds in an equal protection claim under the Fourteenth

OWEN WICKER, RPR OFFICIAL COURT REPORTER

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54
1 Amendment. However, the temporary restraining order and

2 the preliminary injunction as well is sought on the basis

3 of the first cause of action alone.

4

As to that cause of action, defendant has

5 indicated that they agree there is standing for present

6 purposes, in other words, for this Court to entertain the

7 pending application for a TRO.

8

In sum, the question of standing which was

9 discussed yesterday is a nonissue.

10

That being said, I would note parenthetically,

11 commend counsel for the very professional way in which

12 this issue was addressed.

13

Mr. Sinnreich is a very forceful advocate. He's

14 also a good lawyer. And having reviewed the question,

15 even though he had some reservations yesterday as to

16 whether plaintiffs have standing, there is an indication,

17 the law indicates, that the plaintiff has standing.

18

Now we move on to the question of laches.

19

The defendants' position on the issue of laches,

20 or delay, is essentially as follows. He underscores for

21 the Court, or I should say counsel for the defendant

22 underscores for the Court, that following two highly

23 publicized public hearings, the subject ordinance was

24 passed on September 19, 2009.

25

The lawsuit in this case, which was commenced by

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55
1 the filing of the complaint, was not started until May 18,

2 2010, that being approximately eight months after the

3 statute was enacted.

4

The temporary restraining order was sought

5 contemporaneously with the filing of the complaint.

6

Given that factual scenario, defense counsel

7 argues that the delay here, that being the delay between

8 the enactment of the ordinance and the commencement of

9 litigation, and more particularly the seeking of a

10 temporary restraining order, belies or is inconsistent

11 with the claim that this matter is urgent and,

12 accordingly, was brought before the Court via an

13 accelerated mechanism of a temporary restraining order.

14

Plaintiffs counter through their counsel that

15 following the enactment of the statute, various groups and

16 individuals apparently negotiated with the Town in an

17 apparent effort to prevent the enforcement of the

18 ordinance and conceivably a recision of the ordinance.

19

Accompanying that argument is the proposition

20 that efforts to resolve the dispute absent litigation

21 should be encouraged, and surely such efforts in this case

22 cannot be deemed to be somehow fatal to the temporary

23 restraining application which is presently before me.

24 Mr. Sinnreich, as I recall, labeled the efforts by various

25 individuals and groups negotiating with the Town on this

OWEN WICKER, RPR OFFICIAL COURT REPORTER

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56
1 as "lobbying."

2

In any event, though, no matter what label is

3 attached to the activities that occurred between the

4 enactment of the statute and the current litigation being

5 commenced by plaintiffs, the applicable law suggests that

6 the delay in filing suit here obviously doesn't preclude

7 plaintiffs from seeking a temporary restraining order, nor

8 is that delay given the attendant circumstances I so find

9 inconsistent with plaintiffs seeking an emergence of

10 relief via the present application for a temporary

11 restraining order.

12

My conclusion in that regard is based on a

13 number of authorities, including Tom Doherty,

14 D-O-H-E-R-T-Y, Associates against Sabin, S-A-B-I-N,

15 Entertainment, 60 F.3d 27, that being a Second Circuit

16 decision decided in 1995.

17

In that decision the Second Circuit, at page 39

18 of the decision, quotes an excerpt from a lower court case

19 decided in 1980, insofar as that lower court decision

20 stated: "Parties should not be discouraged" -- let me

21 rephrase that.

22

"Parties should not be encouraged to sue before

23 a practical lead to do so has been clearly demonstrated."

24

In reaching the above conclusion in other

25 words, the delay here is understandable given the

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( 1?

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57
1 attendant circumstances. And I agree with the general

2 proposition stated by plaintiffs' counsel: To the extent

3 parties can resolve disputes absent the involvement of the

4 Court, that is something that should be encouraged rather

5 than discouraged.

6

In reaching the above conclusion, I have

7 considered the case advanced by the defense. That's a

8 decision of Judge Pauley of the Southern District of New

9 York. The decision bears the caption National Council of

10 Arab Americans against the City of New York, 331 F.Supp.

11 2d, 258.

12

The facts of that case are somewhat sui generis,

13 and as a result, the holding of that case is not

14 particularly helpful for present purposes.

15

By way of a quick overview, in that case the

16 plaintiffs sought to use a park for demonstratio~s, which

17 demonstrations were apparently held during the National

18 Republican Convention which was to begin on August 30th.

19 August 30th is the day that the plaintiff intended to have

20 the demonstrations.

21

The City denied the permit on June 15th. In

22 denying the application, the City invited plaintiff to

23 contact them and to consider other alternatives.

24

Plaintiffs did not respond to that application.

25 Instead, they filed a lawsuit on August 13th. In that

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58
1 lawsuit they sought emergency relief, to wit, an

2 injunction granting them a permit. In doing so, however,

3 they proceeded by way of notice of motion, not by order to

4 show cause. Moreover, in making this belated application

5 for emergency relief, supporting authority was not

6 provided, at least in the first instance.

7

Judge Pauley, accordingly and understandably,

8 said basically that the emergency cited by plaintiffs was

9 essentially self-created. Moreover, given that the

10 application for an injunction to prevent or to require

11 so it would be a mandatory injunction, to be an issuance

12 of the permit was literally served at the last moment. As

13 a result, the defendants had less than a week to defend

14 against the constitutional challenge.

15

Judge Pauley, considering all of those

16 circumstances, found, basically, the application was too

17 late, and, accordingly, it would not be entertained on the

18 merits.

19

That situation is sufficiently different than

20 what transpired here to warrant, in my judgment, a

21 different result.

22

So to partially reiterate: I certainly have

23 considered the delay, but I don't find that it in any way

24 belies the nature of the request advanced by the

25 plaintiffs, which is to say I don't find the delays

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59
1 inconsistent with them proceeding by way of temporary

2 restraining order seeking injunctive relief on an

3 emergency basis.

4

The next item I'd like to address is the

5 question of the applicable standard of proof for this

6 temporary restraining order.

7

As noted, plaintiffs seek to have the subject

8 ordinance, which is numbered 205-32, declared

9 unconstitutional. In so doing, plaintiffs seek to alter

10 the present status quo.

11

The applicable standards under those

12 circumstances is well-established and has been recently

13 restated in VIP of Berlin against Town of Berlin, 593 F.3d

14 179 at page 185-86. The Berlin case is a Second Circuit

15 decision decided in 2010.

16

The relevant excerpt from that case reads,

17 absent internal cites, as follows. "Where a party seeks a

18 preliminary injunction that challenges government action

19 taken in the public interest pursuant to a statutory or

20 regulatory scheme, and that would alter rather than

21 maintain the status quo, the moving party must demonstrate

22 irreparable harm and a clear or substantial likelihood of

23 success on the merits."

24

Before addressing some of the fundamental

25 questions which bear on the issue at hand, I think it is

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·,

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60
1 worthwhile to note that the question before me is not

2 whether a municipality may pass an ordinance to address

3 the problems associated with street solicitations by day

4 laborers seeking employment. Rather, the issue, of

5 course, is whether this particular ordinance passes

6 constitutional muster or, more accurately for present

7 purposes, whether plaintiffs have shown on the information

8 presently before the Court both, one, a substantial

9 likelihood of success on the merits and, two, irreparable

10 injury.

11

A fundamental question involves whether the

12 speech under discussion is appropriately labeled as

13 commercial speech or noncommercial speech.

14

Before I address that subject, I will note that

15 one relevant consideration in assessing the

16 constitutionality of the statute or ordinance subject to a

17 constitutional challenge under the First Amendment is

18 where the speech -- or the nature of forum in which the

19 speaker or the speakers -- let me reword that.

20

One of the factors the Court should consider in

21 determining the constitutional issue here is the forum

22 that is affected by the ordinance. In other words, where

23 are the speakers who are the subject of this ordinance

24 likely to be located?

25

In reference to the statute or the ordinance

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61
1 itself indicates appropriately the site involved. The

2 site involved in the caption are the sidewalks and the

3 streets of Oyster Bay.

4

Historically, the streets and sidewalks have

5 been considered, basically, the qUintessential forum for

6 assembly, protests, etcetera, and other communications

7 that fall within the ambit of the First Amendment.

8

At this pOint, though, let's address what I

9 consider to be the pivotal question, and that again is the

10, question whether the speech, which is restricted by this

11 ordinance, is commercial or noncommercial.

12

Before dOing this, I will address a question

13 raised yesterday. And the question was, as I understand,

14 as to whether this is speech, and even if it is speech, it

15 may be protected speech. I may have misunderstood what

16 was communicated yesterday.

17

So there be no uncertainties in this regard,

18 that there is absolutely no question in my mind that

19 individuals standing on a street corner, typically in

20 significant numbers, given, again, the attendant

21 circumstances which I will not go into, are communicated.

22

There are certain areas in the county where

23 individuals typically stand, typically in numbers of ten

24 or multiples thereof, and they are there seeking

25 employment. Basically everyone in the county knows that.

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62

1

Now sometimes, apparently from papers that have

2 been submitted, they will vocally ask for employment.

3 Sometimes they will rather signal individuals in cars.

4 But given the totality of the circumstances, I don't think

5 there can be any legitimate dispute -- and I recognize we

6 haven't had a full record on this -- they are

7 communicating, the day laborers.

8

What are they communicating? Their availability

9 for short-term, basically, blue-collar employment. I

10 don't hesitate on the question whether we have speech.

11

And on the question of whether the speech is

12 protected, we'll address that in a moment. But I did want

13 to address that initial question whether we can even talk

14 about speech in the first instance. As indicated, we are.

15

In my judgment, for the reasons I'll indicate, I

16 believe that what we're talking about here is commercial

17 speech.

18

In the case of Bad Frog Brewery, Inc., against

19 New York State Liquor Authority, 134 F.3d 87 at page 97,

20 the Second Circuit, in its decision of 1998, succinctly

21 states, "The core notion of commercial speech includes

22 speech which does no more than propose a commercial

23 transaction."

24

Other cases indicate that the nature of the

25 commercial transactions involved has to do with basically

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64
1 only reason I don't want to go through that, I believe it

2 is unnecessary, and it will unduly prolong the analysis.

3

This ordinance and the speech that is embraced

4 within the ordinance does constitute an advertisement

5 consistent with the rationale embodied in the Bolger case.

6

The second element raises the question of

7 whether the speech refers to a particular product or

8 service.

9

I think what I've already said concerning the

10 first element indicates that the second element with

11 respect to a service is clearly satisfied.

12

The third element is whether the speech contains

13 an economic motivation. Clearly, such is the case here.

14 The day laborer is seeking employment with the purpose

15 being to receive compensation for his services. There's

16 clearly an economic motivation to the speech involved.

17

For the reasons indicated, I believe we're

18 talking about commercial speech.

19

Then the question becomes: Is that speech

20 protected speech within the purview of the First

21 Amendment?

22

That inquiry gives rise to a four-part test.

23 That test, the specifics of which will be provided in a

24 moment, is derived from the case of Central Hudson Gas and

25 Electric Corporation against Public Service Commission of

OWEN WICKER, RPR OFFICIAL COURT REPORTER

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17 ~

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65
1 New York, 447 U.S. 557 (1980), as later modified by

2 another supreme court decision, which is Board of Trustees

3 of the University of New York against Fox, 492 U.S. 469.

4 The Fox decision was issued in 1989.

5

From those two cases, the four-part test is as

6 follows:

7

The first element is whether what is being

8 sought to be regulated is nonmisleading and lawful

9 commercial speech.

10

The first aspect of that element, to wit, that

11 the speech be nonmisleading, is not at issue here. There

12 is no thought that communication seeking employment by the

13 day laborers is misleading.

14

The second aspect of that first prong of the

15 four-part test does not lend itself to a simple answer;

16 the second aspect, whether we're talking about lawful

17 activity.

18

During argument yesterday, there was a

19 discussion about whether the day laborers, who are at

20 least in part the target of this ordinance, are seeking

21 lawful employment. It may be that some of the day

22 laborers are illegally in the country; it may be that most

23 are illegally in the country. So does that somehow tinge

24 the transaction with an unlawfulness, which would indicate

25 that the speech involved here is not protected under the

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1 Constitution?

2

I don't believe this issue has been addressed at

3 any great length, head on, by an appellate court.

4

It was my impression -- and I so conclude having

5 read some Law Review articles on the subject and some of

6 the cases which, while not directly on point, are

7 partially instructive -- that lawful means or that

8 unlawful means that the speech and the transaction that is

9 occurring is either lawful or unlawful.

10

Therefore, by way of an example, if an

11 individual is endeavoring to sell controlled substances on

12 a corner and communicates that fact to a prospective

13 purchaser, that obviously is not protected speech.

14

The fact that some of the day laborers here may

15 be illegally in the country -- and, of course, presumably

16 some are not and the fact that to the extent the

17 transaction occurs on a street corner and, accordingly,

18 labor law requirements and regulations, as well as taxing

19 requirements, may not be satisfied, I don't think renders

20 the transaction unlawful for purposes of the Central

21 Hudson/Fox test. I don't believe that is what is meant.

22

That being said, I will note that on the

23 information before me -- and again, this is in a temporary

24 restraining order context -- that there's information to

25 suggest that what I've just mentioned about potential

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1 unl awful ness, al beit i ndi rect unl awful ness, it is true of

2 all or a substantial I'll just say all of the persons

3 seeking employment via, basically, street solicitation.

4

That's a very interesting issue. I don't

5 pretend that it is a simple issue, as I indicated earlier.

6 I think what I said is correct. I think that the

7 lawfulness has to do with the character of the transaction

8 and the communication itself rather than what may underlie

9 the transaction or what may ultimately materialize or not

10 materialize after the transaction has occurred.

11

In using the word "transaction," I'm referring

12 to the offer and acceptance of the employment.

13

Now the second element is -- I'll just back up

14 for a minute.

15

Again, I think we're talking about protected

16 speech here for the reasons I've indicated. Therefore,

17 the next question is whether the regulation, in this case

18 the subject ordinance, is directed at establishing or

19 advancing a substantial governmental interest.

20

As to that element, I think the statute of the

21 ordinance, at least facially, satisfies that element. I

22 think the courts have recognized that municipalities have

23 an interest in promoting the safety of individuals driving

24 or riding in automobiles, as well as pedestrians who are

25 in close proximity to the various roadways.

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1

As to this element, that being the regulation

2 advancing a substantial government interest or at least

3 seeking to do so, a question comes to mind. Ordinance

4 section 205.32 subdivision (a), lists the legislative

5 intent. The legislative intent as set forth in the

6 ordinance is self-explanatory.

7

The question here is whether, at the preliminary

8 hearing, evidence of legislative intent beyond that which

9 is stated in subdivision 1(a) of ordinance 205.32 would be

10 appropriate.

11

The reason I mention that is that the primary

12 reason that is advanced in that particular subdivision of

13 the ordinance does not seem to embrace, at least directly,

14 the idea of the Town being concerned individuals hiring

15 individuals hiring day laborers who might be in the

16 country illegally and related issues, such as preventing

17 compliance -- let me withdraw that.

18

Another ground that was advanced by the defense

19 yesterday concerning why this ordinance was enacted and

20 what it seeks to address includes the idea of people

21 avoiding their obligations under the relevant labor law

22 and taxing provisions.

23

Simply put, would evidence as to those concerns,

24 to the extent they were harbored by the town board at the

25 time this ordinance was enacted, be appropriately adduced

OWEN WICKER, RPR OFFICIAL COURT REPORTER

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11

I'

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1 at a hearing?

2

But in any event, to go back to these various

3 factors ...

4

Then another factor mentioned in the Central

5 Hudson's/Fox test is whether the regulation in fact

6 advances the interest which was sought to be promoted.

7

In that regard, the evidence at this pOint, of

8 course, is sketchy, which is, of course, not unusual in a

9 case which is in a temporary restraining order context.

10

The question arises whether there should be some

11 evidence before the Court -- I'll withdraw that.

12

On the third element, I'm satisfied, at least

13 for present purposes, or I will assume that that has been

14 satisfied.

15

The last element is where the problem arises,

16 and this is the fourth element, again, of that Central

17 Hudson/Fox four-part test. Under that fourth element,

18 there must be evidence that the regulation or ordinance is

19 narrowly tailored to serve, basically, the goal of the

20 ordinance.

21

Under the case law, sometimes that has been

22 characterized as there must be a reasonable fit between

23 the goals sought to be advanced by the government in which

24 they have a substantial interest and the ordinance under

25 attack.

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,1 "

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1

We do know that the methodology employed by the

2 municipality need not be the least restrictive means

3 available to address that substantial government interest.

4

We also know, though, that to the extent there

5 are less restrictive alternatives which are reasonably

6 available to promote the government interest involved,

7 that the availability of those less restrictive

8 alternatives which were not utilized suggest that the

9 ordinance under attack was not narrowly tailored as

10 required by the four-part test.

11

Against that backdrop, to the extent the

12 ordinance is concerned, basically, with traffic safety

13 defined, in essence, as safety to the drivers and

14 occupants in automobiles and the safety to those in

15 relatively close proximity to the roadways, the plaintiff

16 points out that there are a number of existing regulations

17 and statutes on the books which are more than adequate to

18 address the traffic safety issue.

19

From that, it is argued not so much there is an

20 appropriate fix or fit but that the ordinance is

21 unnecessary, and to the extent it infringes on First

22 Amendment rights, it cannot survive a constitutional

23 attack.

24

I will not go through all of the ordinances and

25 statutes cited by the plaintiffs with respect to the issue

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71
1 under discussion; rather, I will incorporate by reference

2 what appears on page 9 of the memorandum submitted in

3 support of the relief sought in the order to show cause.

4 That being said, I will mention a few.

5

Plaintiffs indicate that the Town has authority

6 to enforce New York State traffic laws, which laws limit

7 pedestrian behavior when entering roadways. There's also

8 a provision in the New York State Vehicle and Traffic Law,

9 I'm told, that prohibits persons from standing in roadways

10 for the purposes of solicitation. There are also

11 provisions which prevent individuals from proceeding in

12 their automobile at such a slow rate of speed to impede

13 the normal and reasonable movement of traffic, etcetera.

14

Is also noted, and I believe correctly so, that

15 the Town has the authority to enforce, among other things,

16 the provision in the New York State Penal Law which

17 pertains to disorderly conduct. So that's one

18 observation. In other words, is this ordinance narrowly

19 tailored?

20

On the information before me, I don't believe it

21 is. One reason is, there is some question whether it is

22 even necessary. To the extent it is unnecessary because

23 there are alternate, less restrictive ways to accomplish

24 the intended goal, that calls its constitutionality into

25 serious question.

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'j '/ '

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72

1

But beyond that, a statute or an ordinance can't

2 be considered narrowly tailored to the extent its scope is

3 considerably broader than necessary to accomplish the

4 intended goal, and to the extent its scope in and of

5 itself raises very serious constitutional questions.

6

By way of an example, the ordinance as presently

7 configured provides in paragraph 1(c) that "it shall be

8 unlawful for any person standing within or adjacent to any

9 public right-of-way within the Town of Oyster Bay to stop

10 or attempt to stop any motor vehicle utilizing said public

11 right-of-way for the purpose of soliciting employment of

12 any kind from the occupants of said motor vehicle."

13

Subdivision (d) basically mirrors the provision

14 just quoted except that, unlike subdivision (c), it

15 indicates when the motorist or someone in the vehicle is

16 acting improperly as defined in the statute.

17

Under subdi vi si on (c), by way' of exampl e, if an

18 individual was on his own property but that property is

19 adjacent to or abuts any public right-of-way, and while so

20 positioned he, for instance, raised a sign which said

21 "please pull over" or "please turn in the next driveway

22 because I am a disabled veteran and I need employment,"

23 that would run afoul, in my judgment, of the ordinance.

24 Yet the sign displayed by the hypothetical "disabled

25 veteran," positioned so that it could be seen by

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1 motorists, would have no more effect on traffic safety

2 than many of the solicitations and signs that line the

3 strip mall or the strip zoning areas which are prevalent

4 in Nassau and Suffolk County.

5

By way of example, it's no more disruptive than

6 a McDonald's sign, somebody standing on the corner -- I'll

7 leave it at that.

8

With respect to any sign which is near a

9 roadway, an argument can be made that the sign represents

10 a potential distraction to motorists. I think that is

11 probably true. But there are limits to what a

12 municipality can do. Just as a municipality would have

13 problems, I assume, telling McDonald's to take down their

14 sign because it is a distraction to motorists, it seems to

15 me they can encounter the same difficulty and legitimately

16 should encounter the same problem.

17

I think I've made my point, except I will add

18 that a person who is, by hypothetical, a disabled veteran,

19 on his property which happens to lie adjacent to a public

20 roadway, points a sign to a motorist, is not the type of

21 individual which will cause the traffic problems and raise

22 safety concerns which apparently is the core concern of

23 this ordinance. However, that individual would, under the

24 scenario that I've provided, I believe consistent with the

25 literal meaning of this ordinance, be subject to being

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74 1 issued a ticket for $250.

2

What is my pOint? Well, my point is that this

3 statute and this ordinance and what it attempts to

4 preclude is not finely tailored to the situation; rather,

5 it is too broad. And to the extent its breadth affects

6 the constitutional rights of individuals without any

7 corresponding benefits to the municipality or any

8 legitimate corresponding benefit, it has -- it raises

9 constitutional concerns.

10

In any event, and for the reasons I've indicated

11 by way of partial conclusion, at least, on this point, on

12 the limited information that is before me, I find that the

13 plaintiffs have established a substantial likelihood of

14 success and that they've also satisfied the irreparable

15 injury standard that must also be satisfied for injunctive

16 relief to issue.

17

For the reasons I've indicated, it seems to me

18 that there is a clear violation of the First Amendment.

19 That in and of itself establishes irreparable harm for

20 present purposes.

21

One other thing I'd like to mention, just

22 because we have this preliminary injunction hearing coming

23 up, and that is the question of whether the named

24 plaintiffs have also been directly affected by this

25 ordinance as distinct from affected, basically, as the

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75 1 medium -- I will say as for the spokesperson for the

2 migrant laborers, which are members of the plaintiff

3 organizations.

4

Plaintiffs' counsel raised an interpretation of

5 the portion of the ordinance which is entitled "Solicit or

6 Solicitation." That portion of the statute involves the

7 definition of those terms.

8

Plaintiffs' counsel posits that a fair reading

9 of the statute would be broader than the manner in which

10 I've interpreted it. I've interpreted it, as I've

11 articulated it yesterday, as essentially a nonsolicitation

12 statute by day laborers who are seeking immediate

13 employment and by individuals in automobiles who are

14 offering immediate employment.

15

If the statute is read, recognizing its

16 disjunctive wording, as follows, I think it tends to

17 support the position of plaintiff on this pOint. The

18 readi ng woul d be: "Any act ion whi ch seeks to secure

19 employment" would constitute solicitation within the

20 definition.

21

From that, plaintiff argues, as I understand it,

22 that if an individual from one of the plaintiff

23 organizations, for instance, held up a sign directed at

24 motori sts whi ch sai d "hi re day 1aborers because it wi 11

25 save you money and they are hard workers," the argument

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1 would be made, that falls within the ambit of the statute.

2 The thought would be that such action does seek to secure

3 employment. The employment may not be immediate, but yet

4 it falls within the ambit of seeking to secure employment.

5

I don't know if that is correct or not. I've

6 not had a chance to fully reflect on it. It probably

7 should not have been dismissed as summarily as I did

8 yesterday.

9

The resolution of the issue is not necessary for

10 purposes of a temporary restraining order. However, if

11 plaintiff elects to raise that issue again, as I suspect

12 plaintiffs will through counsel, the issue will be

13 addressed further on the next date, that being the

14 May 28th date or shortly thereafter.

15

Parenthetically, should the legislative --

16 excuse me. Should the term "solicit" or "solicitation" be

17 interpreted as including the alternative just mentioned,

18 the significance of that would be, I would imagine, that

19 that would be arguably noncommercial speech, and therefore

20 it would be entitled to greater protection by the courts

21 than would be true for commercial speech.

22

One of the things -- excuse me. The last issue

23 concerns the issue of a bond. Rule 65(b), I believe, or

24 it may be (c) of the Rules of Civil Procedure, provided

25 for a bond issue should the Court issue a preliminary

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, ." t,

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77
1 injunction or a temporary restraining order.

2

I'm aware of a number of cases, although I have

3 none at hand, which indicate that even though that

4 directive seems to be mandatory, it is not. In certain

5 circumstances, no bond needs to be furnished.

6

Plaintiffs' counsel indicated yesterday there is

7 case law, when they were talking about the First Amendment

8 as we are here, there is no need for a bond to be

9 furnished.

10

If the defense feels to the contrary, I'll be

11 happy to hear them; otherwise, I will not require that a

12 bond 'be furnished.

13

MR. SINNREICH: We're not requiring one, your

14 Honor.

15

THE COURT: So that will conclude my decision

16 over the objection of defense.

17

Both sides have done a very good job in this

18 case, both the plaintiffs' counsel and defendants'

19 counsel. They have helped to frame the issues for the

20 Court. And since it was done in a temporary restraining

21 order context, it was done somewhat under the gun. That

22 is particularly true for the defendant, who has to

23 respond, whereas the plaintiff has time to reflect on

24 these matters.

25

In any event, that's where we are.

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78

1

What I'd ask counsel to do for the hearing is

2 discuss it to see what can be stipulated to. It may be

3 you will not be able to reach any stipulations, and if you

4 can't, that's fine.

5

What I'll do, in the exercise of my authority at

6 the hearing, I'll listen to proffers, at least in the

7 first instance. Once I receive a proffer by an attorney

8 indicating what they are prepared to prove and why, I

9 would look to opposing counsel and ask for their input.

10

The point is, to the extent -- if a party is not

11 in a position to rebut what opposing counsel presents by

12 way of a reasonable proffer, I really don't think it is

13 worthwhile to take testimony, because it would essentially

14 be a waste of time.

15

Having said that, if there is a dispute on any

16 of this, obviously, I'll address it.

17

So I'm prepared at this point to sign a

18 temporary restraining order. I know one has been

19 presented, but I have not read it.

20

So I want to go off the bench, and I'll review

21 it. I'll ask counsel to remain for a couple of minutes so

22 if I have any questions, I can review it with counsel.

23

To the extent I don't have any questions, I will

24 reappear and so indicate, and you'll be on your way. So

25 thank you, Counsel.

(Proceedings adjourned.)

OWEN WICKER, RPR OFFICiAL COURT REPORTER

 
 Case 2:10-cv-02262-DRH-ARL Document 40 Filed 09/29/11 Page 1 of 15 PageID #: 216

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------X

CENTRO DE LA COMUNIDAD HISPANA DE :

LOCUST VALLEY; and THE WORKPLACE :

PROJECT,

:

:

Plaintiffs,

:

:

-versus-

:

:

TOWN OF OYSTER BAY; JOHN

:

VENDITTO, Town Supervisor of the Town

:

of Oyster Bay,

:

:

Defendants.

:

--------------------------------------------------------------X

AMENDED COMPLAINT
10 Civ. 2262 (DRH/ARL)

PRELIMINARY STATEMENT 1. This is a civil rights action about the ability of predominantly Latino, immigrant day laborers to exercise their right to solicit work on the streets and sidewalks of their towns and villages without fear of being targeted because of their race and national origin. Plaintiffs represent residents of the Town of Oyster Bay who for years have successfully obtained temporary jobs by standing on local street corners and soliciting work from homeowners, contractors and other employers who pick them up and take them to job sites. These residents’ ability to seek work has been significantly curtailed by the recent passage of Chapter 205.32 of the Code of the Town of Oyster Bay (the “Ordinance”), which unlawfully prohibits speech related to employment, fails to provide adequate notice of what it prohibits, and was enacted specifically in response to and as a result of discriminatory community animus regarding this group of workers. 2. While the purported purpose of the Ordinance is to address traffic and pedestrian safety, it does nothing to accomplish that goal. Instead, it sweeps in a wide

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variety of speech that has no adverse impact on traffic and pedestrian safety, fails to regulate speech that is indistinguishable from prohibited speech except in terms of the content of its communicative message, and is superfluous because the Town of Oyster Bay and the State of New York already have a range of laws and regulations in place to ensure traffic and pedestrian safety.
3. The reason for the poor fit between the Ordinance and its purported safety purpose is that, upon information and belief, such concerns did not motivate its passage. Rather, upon information and belief, the Ordinance was passed to prevent a group of predominantly Latino, immigrant day laborers from soliciting work in Oyster Bay so as to drive them out of their communities and out of the sight of residents who wish they were not there.
4. In pursuit of this true goal, the Ordinance reaches so far as to prohibit individuals and groups from engaging in general speech and advocacy intended to promote the security of employment. In addition, the text of the Ordinance fails to define key terms, thereby failing to give either law enforcement personnel or persons who might be subject to the ordinance sufficient guidance as to what conduct is and is not prohibited by the Ordinance, and further chilling protected speech.
5. Since the passage of the Ordinance, the day laborers that Plaintiffs represent have had great difficulty obtaining work. The Town has clearly signaled its intent to enforce the Ordinance by, among other things, posting warning signs, stationing law enforcement officials in areas where the day laborers have traditionally sought work, and threatening day laborers and their prospective employers. As a result, an entire community has lost its ability to earn a living wage.
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6. The Ordinance thus violates the free speech, due process, and equal protection rights of the laborers that Plaintiffs represent as well as the expressive rights of the Plaintiff organizations who seek to advocate their support for such laborers, and in so doing, abridges rights under the First and Fourteenth Amendments of the U.S. Constitution. The laborers and the Plaintiffs would like to be able to exercise their right to solicit work and advocate for employment rights without fear of penalty and thus Plaintiffs ask the Court to declare the Ordinance unconstitutional and bar its enforcement.
JURISDICTION AND VENUE 7. This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3–4). 8. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that Plaintiffs’ claims arise in the Eastern District of New York.
PARTIES 9. Plaintiff CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY (“Centro”) is an unincorporated membership organization located in Locust Valley, New York. Its membership consists primarily of day laborers and their families who live and work in the Town of Oyster Bay and in particular in Locust Valley. The mission of Centro is to promote the right to work with dignity, respect and justice for the Locust Valley community. In particular, Centro’s mission is to provide educational courses aimed at enhancing day laborers’ professional and language skills and thus their ability obtain work, to operate as a gathering place for day laborers to exchange ideas and come together as a community, and to engage in community political advocacy intended to secure employment and the employment-related rights of day laborers.
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10. Plaintiff THE WORKPLACE PROJECT is an incorporated membership organization located in Hempstead, New York. Its membership is made up in part of Latino immigrant workers who live in Nassau County, Long Island and in particular in the Town of Oyster Bay. Its members finance the Workplace Project’s activities, and elect and serve as its leadership. The mission of the Workplace Project is to end the exploitation of Latino immigrant workers on Long Island and achieve socioeconomic justice for its members in the communities in which they live. One of its core projects is a day labor organizing project, through which members push for government policies that respect the rights of day laborers to seek work in peace. The Workplace Project also engages in political advocacy that is intended to secure employment and the employmentrelated rights of day laborers.
11. Defendant TOWN OF OYSTER BAY is located in Nassau County in New York State.
12. Defendant JOHN VENDITTO is the Town Supervisor of the Town of Oyster Bay.
FACTS The Town of Oyster Bay 13. The Town of Oyster Bay, in Nassau County on Long Island, has a population of about 300,000 people and consists of 18 hamlets and 18 villages. 14. Based on 2000 census numbers, the Town is more than 90% white, 5% Hispanic or Latino, 4% Asian, and less than 1% African American. 15. Oyster Bay’s Latino and Hispanic community has consistently grown over the last several years, raising tensions between the newcomers and those whose families
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arrived before. Indeed, the Latino/Hispanic population almost doubled during the period 1990-2000; in 1990, the Town’s population was only 3% Hispanic.
16. One of the Town’s hamlets is Locust Valley. Based on 2000 census numbers, Locust Valley has a population of 3,521. Its population is overwhelmingly white, with 15% identifying as Hispanic or Latino.
17. Farmingdale is a village within the Town of Oyster Bay. Based on 2000 census numbers, Farmingdale has a population of 8,399. Nearly 90% of the population is white, with 12.6% identifying as Hispanic or Latino.
The Day Laborers in Oyster Bay 18. Day laborers have been gathering daily on the streets and sidewalks of Oyster Bay, in particular in Locust Valley and Farmingdale, for almost two decades in order to find the day work they rely upon to make a living. 19. The work the day laborers obtain, which consists mainly of short-term manual labor and construction work, constitutes their primary means of income. 20. The workers typically earn between $75-$125 per day for 8-12 hours of work. 21. In recent years, day laborers, especially in Farmingdale and Locust Valley, have often been subjected to harassment and intimidation by neighbors, government officials and law enforcement when they gather to seek work. The History of Anti-Latino and Anti-Immigrant Sentiment on Long Island 22. As the population of Latino immigrants has grown in recent years, Latino day laborers and their supporters throughout Long Island have increasingly been subjected to discrimination, harassment, intimidation and violence.
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23. For example, the area has seen the emergence of anti-immigrant groups that encourage stereotyping and hatred toward Latinos and inflame community tensions. These groups have specifically targeted day laborers; for example, in contributing to the rejection of a proposed government-sponsored day laborer hiring center in Farmingdale.
24. Day laborers and other immigrants in Long Island have been the victim of hate crimes. In a 2006 survey by Hofstra University’s Center for the Study of Labor & Democracy, over 43% of Long Island’s day laborers reported being targeted for slurs based on their nationality, while more than one-quarter reported having been threatened while looking for work. A similar percentage reported having been physically assaulted while looking for work, a rate that is 109 times the national average.
25. In 2003, the house of Latino immigrants in Farmingville was fire-bombed. Three years earlier in the same town, two Mexican day laborers were brutally beaten after being lured out of their home by the promise of work. And when Farmingdale residents attempted to create a hiring site for day laborers, news reports indicated that someone left a .50-caliber anti-aircraft shell and carved a depiction of a gun into a wooden picnic table at the proposed location.
26. Most recently, in 2008, Ecuadorean immigrant Marcello Lucero was stabbed to death on Long Island by seven teens who were specifically trolling for a Hispanic victim, a local practice one witness in the case described as “beaner hopping.” In reference to this practice, the district attorney prosecuting the case stated, “We know for sure that there are more victims out there.”
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The Introduction of the Ordinance 27. At a March 31, 2009, Town Board meeting, several Oyster Bay residents complained about the “invasion of day laborers,” accused them of urinating and defecating in public, and called the laborers “unsafe and unsightly.” One resident stated that he felt like he did not “belong” in the neighborhood anymore. 28. Discussing this issue at that same meeting, Town Supervisor John Venditto described his background as the son of an Italian immigrant who “had to follow certain rules,” in contrast to the different sort of immigrants who started arriving “in the 1970’s.” 29. Following that meeting, the Town Board proposed an ordinance (hereinafter, “the Ordinance”) intended to prohibit the solicitation of labor from the town’s streets and sidewalks. 30. The Ordinance prohibits any person standing on a public street from stopping or attempting to stop a passing car for employment-related purposes. It also forbids drivers from stopping their cars for the same purposes. 31. The Ordinance defines “soliciting employment” to include a wide variety of speech, including “any request, offer, enticement or action” that seeks or offers work or “that seeks to . . . secure employment.” In so doing, it prohibits general advocacy designed to secure employment for workers. 32. The Ordinance also specifies particular prohibited methods of speech, including “waving arms, making hand signals, shouting . . . , jumping up and down, waving signs . . . standing in the [street], or entering the [street].”
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The Purpose of the Ordinance 33. The expressed legislative intent of the Ordinance is “to protect the health, safety and welfare of motorists and pedestrians using public rights-of-way within the Town of Oyster Bay, and persons standing in close proximity to said public rights-ofway, from the dangers of obstruction, distraction and delays of traffic caused by the solicitation of employment by pedestrians from or directed to operators or occupants of motor vehicles . . . .” 34. Despite the Ordinance’s professed focus on traffic concerns, Town Supervisor Venditto has stated in reference to the Ordinance that “My predisposition is for these people to get on the highway to citizenship; in the meantime, the ordinance is a short-term solution.” He has further explained that the purpose of the Ordinance is “to help with the plight of the day laborer. . . . We’re only asking that [the day laborers] assimilate.” 35. On May 26, 2009, the Town held a public hearing on the proposed ordinance. 36. Residents who spoke in favor of the Ordinance expressed their discomfort at having unfamiliar residents in their midst. One resident explained that “people feel uncomfortable about having groups of men who they don’t know, who they don’t recognize,” and whom they don’t perceive as their neighbors standing on the streets. 37. Later acknowledging this resident, Mr. Venditto affirmed that “people are frightened, people are afraid.” 38. Residents also expressed fear for their safety due to the presence of immigrant day laborers in their midst. One resident stated: “I just want to be safe
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walking to the deli and not be surrounded by mobs of people.” Another said that she wanted to live in a “safe neighborhood.” A third resident stated that he does not want to feel intimidated driving out of his neighborhood due to the presence of day laborers on the corner.
39. Residents at the meeting also described the day laborers in derogatory terms, characterizing them as “unsightly” and stating that their presence on the street corner “doesn’t look appropriate.” One resident stated that “Someone driving through your Town and sees this, like, gee, why would I want to come to Locust Valley[?]”
40. Many residents linked their support of the Ordinance directly to their feelings about immigration policy and undocumented workers. One resident explained: “[M]y point being that my grandparents . . . came here legally. That’s the issue that I have. I don’t have any problem with the people looking for work, but I do have a problem with them looking for work in my neighborhood.”
41. Another resident explained: “My father came straight from Spain, but . . . he went to school, learned the language . . . . Don’t stand on a street corner. What will you learn there?”
42. Yet another resident praised the Town Board’s introduction of the Ordinance for trying to “straighten out what might be the failed federal policies that may have contributed to this problem.” In response, Mr. Venditto asked, “That may have?” Clarifying, the resident explained, “Well, I’m being kind.”
43. In addition to the residents, government officials who spoke at the public hearing expressly linked their support of the Ordinance to their opposition to illegal immigration.
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44. For example, Mr. Venditto stated: “For the last 40 years, our government who we count on to protect us has turned its back on us . . .” and “If they can’t go on a pathway to citizenship, then they can’t stay in this country.” He admonished day laborers that “you gotta [sic] work towards blending into the society . . . . When you blend in to society nobody is going to be afraid of you anymore.”
45. At the public hearing, none of the statements made by members of the public or Town Board members indicated that a single traffic accident had occurred as a result of the day laborers’ soliciting work.
46. Furthermore, the Town Code, the New York State Vehicle and Traffic Law, and the New York State Penal Code already contain numerous provisions enabling the town to protect traffic and pedestrian safety, punish littering, control noise levels, prevent disorderly conduct, and regulate solicitation in streets.
47. The Town had no basis for concluding that the Ordinance was necessary to address traffic or pedestrian safety concerns.
48. The Town Board did not gather or examine any statistics as part of its consideration of the Ordinance.
49. The legislative record of the Ordinance presents no evidence or factual support, whether statistical or anecdotal, for the claim that there have been traffic problems presented by the day laborers’ solicitation of work.
50. The legislative record of the Ordinance presents no evidence or factual support, whether statistical or anecdotal, for the claim that existing laws are insufficient to protect traffic and pedestrian safety.
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51. Upon information and belief, no traffic accident has ever been caused in Oyster Bay as a result of the day laborers’ solicitation of work.
52. On September 29, 2009, the Town Board enacted the Ordinance by a unanimous vote of 7-0.
The Consequences of the Ordinance 53. Since the passage of the Ordinance, the Town has stationed law enforcement officers in areas where day laborers traditionally gather. 54. In areas where day laborers often gather, the Town posted signs warning about the new Ordinance, signaling its intent to enforce the law. 55. Upon information and belief, Town officials have reached out to persons affected by the Ordinance, including employers who commonly employ day laborers, to warn them about enforcement of the Ordinance. 56. As a result of the Ordinance’s passage, the presence of law enforcement, and the other signals the Town has made of its intent to enforce the Ordinance, day laborers and their potential employers fear being penalized under the Ordinance. 57. Because of the Ordinance, many of the day laborers in Oyster Bay, including members of the Plaintiff organizations, have not been able to obtain work. 58. Some day laborers, including members of the Plaintiff organizations, have been afraid to return to the public areas from which they solicited work in the past. 59. Of the day laborers who have continued to attempt to solicit work, many have been unable to find work because their prospective hirers have been intimidated by the law to avoid hiring the day laborers and because they themselves have been intimidated by the law to avoid soliciting jobs.
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60. In addition to loss of wages the day laborers have also been subjected to harassment by law enforcement and government officials.
61. Officers have approached the day laborers, questioned them about why they are standing on the street corner, photographed them, and threatened to ticket them if they return.
62. A Town agent driving a blue truck with the Town seal on its side has driven by one of the hiring sites frequently and intimidated and shouted at the day laborers, telling them to leave the area.
63. Some of the day laborers have experienced passersby yelling racial epithets at them, yelling at them to leave the area, photographing them in an intimidating manner, and throwing things at them, like soda cans and cups of ice, as they drive by in vehicles.
64. Because of the broad scope and vague terms of the Ordinance, Plaintiffs fear that some of the advocacy work in which their members regularly engage may be considered unlawful under the Ordinance by law enforcement officers.
65. The Ordinance offers no guidance to persons such as Plaintiffs, their members, and other day laborers as to whether such advocacy work could be construed as an “attempt to stop” a vehicle for the purpose of “securing employment.”
66. Because the Ordinance offers no guidance to law enforcement officers as to what it prohibits, Plaintiffs fear that those of their members who are or appear to be Latino or of Central or South American origin will be subject to arrest merely because they are standing on public sidewalks in Oyster Bay.
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67. As a result, Plaintiffs fear that their members who advise day laborers of their rights while they stand on the sidewalks in Oyster Bay will be reluctant to do so because they fear being arrested under the Ordinance.
FIRST CAUSE OF ACTION (First Amendment)
68. Defendants’ actions violate the rights of Plaintiffs and their members under the First Amendment, as incorporated by the Fourteenth Amendment, of the U.S. Constitution and secured by 42 U.S.C. §1983.
SECOND CAUSE OF ACTION (First Amendment Vagueness) 69. The ordinance is unconstitutionally vague in violation of the First Amendment, as incorporated by the Fourteenth Amendment, of the U.S. Constitution and secured by 42 U.S.C. §1983, because its terms do not distinguish between those who engage in the prohibited activity of soliciting employment and those who seek to exercise their right to counsel day laborers. THIRD CAUSE OF ACTION
(Equal Protection)
70. Defendants’ actions violate the rights of Plaintiffs and their members to equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution and secured by 42 U.S.C. §1983.
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FOURTH CAUSE OF ACTION (Due Process/Vagueness)
71. The ordinance is unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment of the U.S. Constitution and secured by 42 U.S.C. §1983, because (1) it fails to give law enforcement guidance as to which persons standing on the sidewalk are and are not engaged in prohibited activity and (2) because it fails to apprise ordinary persons of what activity is and is not prohibited.
WHEREFORE, the plaintiffs request that this Court: (1) Declare Chapter 205.32 of the Code of the Town of Oyster Bay unconstitutional because it violates the First Amendment, as incorporated by the Fourteenth Amendment, and the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution; (2) Enter a preliminary injunction that enjoins defendants from enforcing Chapter 205.32; (3) Enter a permanent injunction that enjoins defendants from enforcing Chapter 205.32 of the Code of the Town of Oyster Bay in perpetuity; (4) Award the Plaintiffs attorneys’ fees and costs pursuant to 42 U.S.C. §1988; and (5) Grant any other relief the Court deems appropriate.
Respectfully submitted,
__/Corey Stoughton___________ COREY STOUGHTON (CS-101) ARTHUR EISENBERG (AE-2012) ADRIANA PINON (AP-0798) New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300
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Dated: September 28, 2011 New York, NY

ALAN LEVINE (AL-5297) CHRISTINA ITURRALDE (CI-6051) LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 (212) 219-3360
LEE GELERNT (LG-8511) American Civil Liberties Union 125 Broad St., 17th Floor New York, NY 10004 (212) 549-2500
Counsel for Plaintiffs

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 Case 2:10-cv-02262-DRH-ARL Document 60 Filed 03/30/12 Page 1 of 7 PageID #: 805

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------X CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY and THE WORKPLACE PROJECT,

-against-

Plaintiffs,

ORDER CV 10-2262 (DRH)(ARL)

TOWN OF OYSTER BAY and JOHN VENDITTO, Town Supervisor of the Town of Oyster Bay,

Defendants. -------------------------------------------------------------X LINDSAY, Magistrate Judge:

Before the court is the plaintiffs’ motion for a protective order seeking (1) to affirm their

entitlement to withhold documents and/or make redactions to documents identified in their

December 7, 2011 privilege log that are responsive to the defendants’ document requests 10 and

23; (2) to strike the defendants’ interrogatories 1-3, 5 and 7-12 and documents requests 3-7, 19,

22, 29 and 33-37, which demand identifying information of the plaintiffs’ members and/or

specific day laborers known to the plaintiffs; and (3) to prohibit the defendants from seeking

discovery regarding the personal identifying information or immigration status of the individual day laborers known to the plaintiffs.1 For the reasons set forth below, the motion is granted to

the extent that the defendants seek discovery regarding the personal identifying information of

the individual day laborers known to the plaintiffs.

BACKGROUND

The plaintiffs, two organizations that advocate on behalf of immigrant workers and day

1To the extent plaintiffs seek to protect against disclosure of immigration status, a review of the interrogatories and document requests fails to reflect any request for such information and as such the court need not presently address this issue.

Case 2:10-cv-02262-DRH-ARL Document 60 Filed 03/30/12 Page 2 of 7 PageID #: 806
laborers, commenced this lawsuit on May 17, 2010, alleging that the Town of Oyster Bay Ordinance prohibiting day laborers, standing near a public right-of-way, from stopping or attempting to stop vehicles to solicit work, and drivers from picking up such laborers, violated their constitutional rights to free speech and equal protection of the laws. The plaintiffs simultaneously moved for a temporary restraining order and a preliminary injunction on free speech grounds. The following day, the district court entered a TRO based on the limited information before it.
Thereafter, the court scheduled the preliminary injunction hearing, but before the hearing took place, the defendants asked the court to bypass the hearing and convert the TRO into an appealable preliminary injunction. On consent, the court entered the preliminary injunction as stipulated by the parties. The Town then appealed to the Second Circuit. Although the Second Circuit affirmed the district court’s decision, the Second Circuit emphasized that the district court retained the power to reconsider its order granting the preliminary injunction or to leave the preliminary injunction in place and proceed to trial.
Upon receipt of the Second Circuit’s decision, the parties agreed that the most efficient course of action was to leave the preliminary injunction in effect and to proceed to a determination of the merits. Accordingly, the stay of discovery was lifted and a scheduling order was entered by the undersigned on August 29, 2011. On October 12, 2011, the Town served the plaintiffs with the discovery demands now at issue.
DECISION The plaintiffs contend that the above enumerated discovery requests run afoul of their members’ First Amendment privilege and/or interest in privacy and that the risks of nondisclosure outweighs the defendants’ need for the information. In NAACP v. Alabama ex rel.
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Case 2:10-cv-02262-DRH-ARL Document 60 Filed 03/30/12 Page 3 of 7 PageID #: 807
Patterson, the Supreme Court determined that the First Amendment and the Due Process Clause protects against the disclosure of membership information “where such disclosure would ‘abridge the right of [an organization’s] rank-and-file members to engage in lawful association in support of their common beliefs.’” Schiller v. City of New York, 2006 U.S. Dist LEXIS 88854 *10 (S.D.N.Y. Dec. 7, 2006)(citing NAACP, 357 U.S. 449 (1958)). The Supreme Court noted that “state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” Id. “Accordingly, when an organization resisting disclosure of the identities of its members makes a prima facie showing that disclosure would infringe upon its First Amendment rights, the burden shifts to the party seeking disclosure to show a compelling need for the information.” Id. (citing New York State National Organization for Women v. Terry, 886 F.2d 1339, 1355 (2d Cir. 1989)).
In order to make a prima facie showing, the resisting party “must articulate some resulting encroachment on [its] liberties,” but need not “make a showing of harm or other coercion.” Terry, 886 F. 2d at 1355. Specifically, the resisting party must produce “‘specific evidence of past or present harassment of members due to their associational ties, . . . harassment directed against the organization itself, [or a] pattern of threats or specific manifestations of public hostility.” Schiller, 2006 U.S. Dist LEXIS at *12-13.
Here, the plaintiffs rely on the declarations of Luz Torres (“Torres’) and Omar Perez (“Perez”). Torres is the Chairman of Centro La Comunidad Hispana de Locust Valley and Perez is the Executive Director of The Workplace Project. Both Torres and Perez state that they are afraid that disclosing information about their membership or activities would deter people from becoming members and expose their organizations and members to retaliation and harassment. Yet, neither affidavit describes any specific past or present harassment of a member because of
3

Case 2:10-cv-02262-DRH-ARL Document 60 Filed 03/30/12 Page 4 of 7 PageID #: 808
their associational ties. Neither affidavit cites any evidence in support of the claims that disclosure would lead to reprisals, or that individuals have either left, or not joined their organizations, when identities were disclosed in the past. While the plaintiffs’ burden may be light it is not enough to simply state a fear that bad things may happen. In fact, the record reveals that Centro has freely disclosed its group’s activities, as well as the identities of its staff members, including teachers who assist it in the implementation of programs, in their funding requests to the town. Such disclosures are hardly consistent with Centro’s claim that public disclosure of their activities or members would harm the association. Moreover, although Torres and Perez declare that member day laborers have been harassed by government officials and law enforcement officers it is clear from their statements, and the record before this court, that such alleged harassment occurs when the laborers publicly gather to seek work having nothing to do with any membership. Accordingly, the plaintiffs have not provided enough evidence to shift the burden to the Town to show a compelling need for the information. Id.
However, after thoroughly reviewing the record, the undersigned finds that the plaintiffs are, nonetheless, entitled to a protective order regarding their membership information. Although the discovery requests at issue are drafted broadly, seeking, among other things, meeting notes, minutes and agendas, and draft grant proposals, the Town has indicated, during the course of the parties’ discussion and in their papers, that the purpose of the discovery demands is to identify the individual day laborers themselves. The Town has argued, in this regard, that the personal testimony of the day laborers is central to its defenses that “a) the commercial speech at issue in this case is not entitled to any First Amendment protection because it is intrinsically related to the unlawful conduct of the day laborers themselves, and b) that the Ordinance is narrowly tailored to address the real world dangerous conditions created by the personal conduct of the day
4

Case 2:10-cv-02262-DRH-ARL Document 60 Filed 03/30/12 Page 5 of 7 PageID #: 809
laborers as they congregate on the street and sidewalks of the Town.” Defs. Mem. at 2. This
argument is unavailing.
The Town argues, in the first instance, that the information being sought is centrally
relevant to its defense that the commercial solicitation speech at issue is not entitled to First
Amendment protection because it relates to unlawful activities such as side-stepping of tax,
employment, workers’ compensation, labor and immigration laws. See Central Hudson Gas &
Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). However,
Judge Hurley has already indicated that these type of unlawful activities do not render the
transaction unlawful for the purposes of the Central Hudson/Fox test. Specifically, Judge Hurley
stated:
During argument yesterday, there was a discussion about whether the day laborers, who are at least in part the target of this ordinance, are seeking lawful employment. It may be that some of the day laborers are illegally in the country. So does that somehow tinge the transaction with unlawfulness, which would indicate that the speech involved here is not protected under the Constitution? . . .
It was my impression - - and I so conclude having read some Law Review articles on the subject and some of the cases which, while not directly on point, are partially instructive - - that lawful means that the speech and the transaction that is occurring is either lawful or unlawful. . . .
The fact that some of the day laborers here may be illegally in the country - - and, of course, presumably some are not - - and the fact that to the extent the transaction occurs on a street corner and, accordingly, labor law requirements, may not be satisfied, I don’t think renders the transaction unlawful for the purposes of the Central Hudson/Fox test. I don’t believe that is what is meant.
5/20/10 Transcript at 65-66. Although Judge Hurley reached his conclusion in the context of a
temporary restraining order, the Town recognized the legal import of the ruling during oral
5

Case 2:10-cv-02262-DRH-ARL Document 60 Filed 03/30/12 Page 6 of 7 PageID #: 810
argument before the Second Circuit:
MR. SINNREICH: . . . the court made legal rulings on the first and fourth prong of Central Hudson that made it impossible for me to win at a preliminary injunction level. . .
THE COURT: Mr. Sinnreich, what if at a factual hearing, you had been - - let’s just imagine this - - able to show, that in fact, all of the laborers who potentially are the subject of this ordinance were engage in some form of unlawful conduct .
MR. SINNREICH: Judge Hurley has already ruled that even if that were the case, it doesn’t matter because that’s not what the first prong of Central Hudson means, and unless this court agrees with me and corrects Judge Hurley on that interpretation, it would not have changed this ruling.
4/26/11 Transcript at 17-18. Indeed, the Second Circuit highlighted the Town’s concern in its
decision noting
. . . a conclusion that the district court interpreted the ‘illegal activity’ exception too narrowly, as the Town argues, would not defeat the plaintiff’s motion for a preliminary injunction. We would still have to remand for the very hearing that the Town sought to avoid, a hearing to determine, preliminarily, whether and to what degree the barred speech is ‘related to illegal activity.
Second Circuit Mandate issued on 5/17/2011 at 5. Given this history, the undersigned will not
consider the Town’s argument concerning the relevance of the information to its First
Amendment defense absent some ruling by Judge Hurley.
Moreover, the court is not persuaded by the Town’s argument that the personal testimony
of the day laborers is central to its defenses that the Ordinance is narrowly tailored to address the
real world dangerous conditions created by the day laborers as they congregate on the street and
sidewalks of the Town. Information in support of what the Town believed was the problem, as
well as the Town’s efforts to contain the problem, which would support their narrow tailoring
defense lies with the Town officials that studied the issue. Given that Town sources would have
6

Case 2:10-cv-02262-DRH-ARL Document 60 Filed 03/30/12 Page 7 of 7 PageID #: 811

the information needed to develop the second defense, the Town’s request for identifying

information of day laborers has little, if any, connection to this defense, and is therefore denied at

this time as unduly burdensome.

Accordingly, the plaintiffs’ motion for a protective order is granted. The plaintiffs are,

however, directed to produce any relevant documents with redactions consistent with this order.

Dated: Central Islip, New York March 30, 2012

SO ORDERED:
__________ _________/s/______________ ARLENE ROSARIO LINDSAY United States Magistrate Judge

7

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------X CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY and THE WORKPLACE PROJECT,

- against -

Plaintiffs,

MEMORANDUM AND ORDER 10 CV 2262 (DRH) (ARL)

TOWN OF OYSTER BAY; JOHN VENDITTO, Town Supervisor of the Town of Oyster Bay,

Defendants. ------------------------------------------------------------------X APPEARANCES:

LATINO JUSTICE PRLDEF Attorneys for Plaintiffs 99 Hudson Street, 14th Floor New York, NY 10013 BY: Alan Levine, Esq.
Elizabeth Joynes, Esq. Laura Huizar, Esq.

NEW YORK CIVIL LIBERTIES UNION Attorneys for Plaintiffs 125 Broad Street, 19th Floor New York, NY 10004 BY: Corey Stoughton, Esq.
Art Eisenberg, Esq. Erin B. Harrist, Esq.

AMERICAN CIVIL LIBERTIES UNION Attorneys for Plaintiffs 125 Broad Street, 17th Floor New York, NY 10004 BY: Lee Gelernt, Esq.

SINREICH KOSAKOFF & MESSINA LLP Attorneys for Defendants 267 Carleton Avenue, Suite 301 Central Islip, NY 11722 BY: Jonathan Halsby Sinnreich, Esq.
Timothy F. Hill, Esq.
1

GOLDBERG SEGALLA LLP Attorney For Defendant Town of Oyster Bay 200 Old Country Road, Suite 210 Mineola, NY 11501 BY: Christopher Kendric, Esq.
HURLEY, Senior District Judge:
On May 17, 2010, plaintiffs Centro de la Comunidad Hispana de Locust Valley (“Centro”) and The Workplace Project, two organizations that advocate on behalf of immigrant workers and day laborers commenced this action alleging that the Town of Oyster Bay (“The Town”) and its Town Supervisor John Venditto violated their free speech, due process, and equal protection rights through adoption of a town ordinance (“the Ordinance”) prohibiting day laborers from stopping or attempting to stop vehicles to solicit work. Plaintiff Centro is an unincorporated membership organization primarily consisting of day laborers and their families who live and work in the Town of Oyster Bay, particularly Locust Valley, while The Workplace Project is an incorporated membership organization made up of Latino immigrant workers who live in Nassau County.
On September 29, 2011, plaintiffs filed an Amended Complaint, the operative pleading in this action, bringing the following claims: (1) violation of the First Amendment, as incorporated by the Fourteenth Amendment of the U.S. Constitution and secured by 42 U.S.C. § 1983; (2) the ordinance is unconstitutionally vague in violation of the First Amendment, as incorporated by the Fourteenth Amendment of the U.S. Constitution and secured by 42 U.S.C. § 1983; (3) violation of equal protection under the Fourteenth Amendment of the U.S. Constitution and secured by 42 U.S.C. § 1983; (4) the ordinance is unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment of the U.S. Constitution and secured by 42 U.S.C. § 1983.
2

On May 20, 2010, the Court issued a temporary restraining order (“TRO”) enjoining enforcement of the Ordinance. Upon consent of the parties, the Court converted the TRO into a Preliminary Injunction on June 1, 2010. Thereafter, the defendants appealed the preliminary injunction to the Second Circuit, and the Second Circuit affirmed this Court’s decision but emphasized that this Court retained the power to reconsider the preliminary injunction or to leave it in place. After receiving the Second Circuit’s ruling, however, the parties agreed to leave the preliminary injunction in place and proceed to trial.
Presently before the Court are two motions and one appeal. First, defendants move pursuant to Federal Rule of Civil Procedure 56 for partial summary judgment dismissing the claims of plaintiff Centro on the grounds that Centro lacks standing. Second, plaintiffs move pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss defendants’ counterclaims for lack of subject matter jurisdiction. Third, defendants ask that this Court overrule Magistrate Judge Lindsay’s decision to issue a protective order regarding defendants’ discovery requests. For the reasons set forth below, defendants’ motion for partial summary judgment is denied, plaintiffs’ motion to dismiss is granted, and Judge Lindsay’s decision to issue a protective order is affirmed.
BACKGROUND1 The following material facts are drawn from the parties’ Local Civil Rule 56.1 Statements and evidentiary submissions. Plaintiff Centro is an unincorporated organization formed on March 22, 2010. (Defs.’ 56.1 Stmt. ¶¶ 1, 2). Centro was formed to ensure the right to dignified work and the right to work
1 While the facts presented in this Section are for purposes of the defendants’ motion for summary judgment, there is a great deal of overlap with those facts relevant to the other motions at issue here. To the extent that additional facts are relied on in connection with these other motions, those facts will be addressed infra.
3

with respect and justice as well as in response to the Town’s intention to adopt the Ordinance. (Pls.’ 56.1 Stmt. ¶ 18). In furtherance of this mission, Centro runs educational programs for day laborers including ESL (English as a Second Language) classes, safety seminars, and labor rights workshops, and its members also visit sites in Locust Valley where day laborers solicit employment in order to discuss any problems the day laborers might be having and provide laborers with information and available resources. (Id. ¶¶ 27-28). Luz Torres is the Chairperson of Centro and participates in these initiatives. (Decl. Of Alan Levine in Supp. Of Pls.’ Mem. in Opp’n to Summ. J., Ex. B, Decl. of Luz Torres ¶¶ 1, 6 (“Torres Decl. I”)).
Centro includes as members of its organization anyone that ever attended a meeting subsequent to its formation and does not require any application or other criteria for membership. (Defs.’ 56.1 Stmt. ¶ 4). Centro does not maintain any bank accounts and does not receive any funding. (Id. ¶ 6). Centro does, however, hold bimonthly general membership meetings and retains notes and attendance records from these meetings (Torres Decl. I ¶¶ 4, 8). Centro’s members also elect a Steering Committee that meets monthly to discuss activities, plan general meetings, and make executive decisions. (Id. ¶ 3). At Centro’s first meeting on March 22, 2010 more than forty people attended and voted on the organization’s name, elected a steering committee, and drafted Centro’s mission statement. (Pls.’ 56.1 Stmt. ¶¶ 4, 5)
The Town Board enacted the Ordinance, Chapter 205-32 of the Code of the Town of Oyster Bay, on September 29, 2009. The Ordinance provides as follows:
It shall be unlawful for any pers on standing withi n or adjacent to any public ri ght-of-way within the Town of Oyster Bay to stop or attempt to stop any m otor vehicle utilizing said public right-of-way for the purpose of soliciti ng employment of any kind from the occupants of said motor vehicle. Chapt. 205-32(C).
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“Public right-of-way” is defined as “[a]ll of the areas dedicated to public use for public street
purposes and shall include roadways, parkways, highways, streets, medians, sidewalks, curbs,
slopes and areas of land between the sidewalk and the curb which are also known as utility strips,
except for lawful public parking areas.” Chapt. 205-32(B). According to the Ordinance, “solicit”
or “solicitation” means:
Any request, offer, enticem ent, or action which a nnounces the availability for or of employment, or a request, of fer, enticement or action which seeks to offer or secure em ployment. Exam ples of behavior which constitute solicitation of employment include but are not lim ited to waving arm s, making hand signa ls, shouting to someone in a vehicle, jum ping up and down, waving s igns soliciting employment pointed at persons in vehicles, standing in the public right-of-way while facing vehi cles in the roadway, or entering the roadway portion of the public right-of-way for purpose of seeking em ployment. A solic itation shall be deem ed complete when made whether or not an employment relationship is created, a transaction is completed or an exchange of money or property takes place.
Chapt. 205-32(F)(1).
The Ordinance specifically excludes solicitation of taxicabs, limousine services, public
transportation, towing operations, and ambulances. Chapt. 205-32(E)(1). The penalty for
violation of the law is a fine of not more than $250 for each offense. Chapt. 205-32(F).
DISCUSSION
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate
where admissible evidence in the form of affidavits, deposition transcripts, or other
documentation demonstrates the absence of a genuine issue of material fact and one party’s
entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712,
716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; 5

“[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant’s favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a “scintilla of evidence,” Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or “some metaphysical doubt as to the material facts,” Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, on conclusory statements, or on “mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citations omitted). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
The district court, in considering a summary judgment motion, must also be mindful of the underlying burdens of proof because “the evidentiary burdens that the respective parties will
6

bear at trial guide district courts in their determination of summary judgment motions.” Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, “the moving party’s burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the” nonmovant’s claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to present sufficient evidence in support of his claim, the burden shifts to the non-movant to offer “persuasive evidence that his claim is not ‘implausible.’” Id. at 211 (citing Matsushita, 475 U.S. at 587). II. Standing
In order to satisfy the case or controversy requirement of Article III of the Constitution, a plaintiff must establish standing. See U.S. CONST. art. III, § 2, cl. 1. Standing requires a plaintiff to “allege personal injury traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). In addition, the injury must be concrete and particularized, not merely conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The standing requirement limits the power of the judiciary to hear only cases where real injuries are likely to be redressed by the court’s relief, that is, cases where the party has alleged a personal stake in the outcome of the controversy to ensure that the dispute will be presented in an adversary context “in a form historically viewed as capable of judicial resolution.” See id. at 559-60; Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).
An organization can obtain standing in two ways. First, an organization may “have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth v. Seldin, 422 U.S. 490, 511, 95 S.
7

Ct. 2190, 45 L. Ed. 2d 343 (1975). Under this theory, “the organization is just another person albeit a legal person - seeking to vindicate a right.” N. Y. Civ. Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294-95 (2d Cir. 2012) (finding that the organization had standing to “vindicate its own rights as an organization with goals and projects of its own”). As a result, “[l]ike the individual plaintiff, an organization must show actual or threatened injury in fact that is ‘fairly traceable to the alleged action and likely to be redressed by a favorable court decision.’” Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904 (2d Cir. 1993) (internal citation omitted). Second, an organization may sue on behalf of its members by demonstrating that “its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action.” Warth, 422 U.S. at 511.
The defendants argue that Centro does not have standing in either of these two ways, particularly because it has not suffered any injury as a result of the Ordinance. (Mem. in Supp. of Summ. J. at 2, 3). As a result, the defendants claim that there is no genuine dispute as to any material fact and that they are therefore entitled to judgment as a matter of law. Centro, however, claims that it has organizational standing to bring this suit, and this Court agrees.
A. Centro Has Organizational Standing The Court concludes that Centro has standing to bring this action in its own right to seek judicial relief because the Town’s Ordinance imposes a threat of injury to Centro’s organizational activities and goals. The Second Circuit has recognized that when analyzing whether an organization has standing to sue in its own right “only a ‘perceptible impairment’ of an organization’s activities is necessary for there to be an ‘injury in fact.’” Nnebe v. Daus, 644 F.3d 147, 157 (2d Cir. 2011) (quoting Ragin, 6 F.3d at 905 (2d Cir. 1993) (citing Havens Realty Corp.
8

v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982))).2 In addition, in New
York Civil Liberties Union v. New York City Transit Authority, the Second Circuit recognized that
an organization had standing to sue in its own right as an organization with “goals and projects of
its own.” 684 F.3d at 295 (finding that NYCLU had a “cognizable interest” in open access to
hearings before the Transit Authority “as a matter of professional responsibility to clients” and
that denying the NYCLU access to these hearings had “impeded, and will continue to impede, the
organization’s ability to carry out this aforementioned responsibility”).
Centro has established the “perceptible impairment” to its activities required to constitute
standing in its own right. Centro’s goals and projects include meeting with day laborers at the
street corners where they gather in order to provide “educational outreach, counsel day laborers
about their right to solicit employment, and provide them with information about available
resources.” (Torres Decl. I ¶ 6). Further, it is clear from Ms. Torres’s declaration that the
language of the Ordinance prohibiting solicitation through “standing in the public right-of-way
while facing vehicles in the roadway” has caused members of Centro to be concerned that they
“could be penalized for engaging in advocacy activities at the corners and speaking with the day
laborers at the corners about workers’ rights.” (Id. ¶ 12; Decl. Of Timothy F. Hill, Ex. C, Dep. of
Luz. Torres at 269 (“Torres Dep.”)). Ms. Torres has felt “comfortable continuing to counsel and
communicate with day laborer members of Centro at the street corners [only] because the
Ordinance has been enjoined.” (Torres. Decl. ¶ 11). Ms. Torres’s concerns seem to be validated
by the testimony of Frank Cardone, the Town Public Safety Officer most regularly assigned to
2 The Court recognizes that this proposition originated in cases where plaintiff organizations challenged violations of the Fair Housing Act, and the challenged action caused plaintiff organizations to divert resources from other activities to respond to the alleged violations. See e.g., Ragin, 6 F.3d at 905. In New York Civil Liberties Union v. New York City Transit Authority, however, the Second Circuit, cites the proposition in laying out the general test for the injury in fact required for an organization to achieve standing in its own right, and the Court applies that standard here. 684 F.3d 286, 294 (2d Cir. 2012).
9

monitor the day laborers. As Mr. Cardone admits, it is difficult to distinguish someone standing on the sidewalk soliciting employment from someone gathered to provide information to day laborers. (Decl. Of Alan Levine in Supp. of Pls.’ Mem. in Opp’n To Summ. J., Ex. K, Dep. of Frank Cardone (“Cardone Dep.”) at 137). On the basis of this testimony, it is perceptible that were the Ordinance not enjoined it would prevent Centro from engaging in its street corner counseling, thereby impairing its advocacy activities.
Furthermore, this impairment is to a “cognizable interest,” as the counseling that Centro provides to day laborers gathered on the public sidewalks is an integral part of its stated mission “to promote day laborers’ right to work with dignity, respect, and justice.” (Torres Decl. I ¶ 2, 6). In recognizing this interest, the Court joins with the Ninth Circuit in Comite de Jornaleros de Redondo Beach v. Redondo Beach. There the court found that plaintiff organizations who faced a similar anti-solicitation ordinance to that which plaintiffs face here had standing in their own right. 657 F.3d 936, 943 (9th Cir. 2011). In Redondo, plaintiffs, a pair of day laborer organizations, challenged a Redondo Beach anti-solicitation ordinance that barred individuals from standing on the street or highway and soliciting employment. Id. at 940. The court found it crucial to its analysis that the ordinance frustrated the organizations’ mission to strengthen and expand the work of day laborer organizing groups by “discourag[ing] both employees and employers from participating in hiring transactions.” Id. at 943. Like the ordinance in Redondo, enforcement of the Town of Oyster Bay’s Ordinance frustrates Centro’s mission to “promote day laborers’ right to work with dignity, respect and justice.” (Torres Decl. I ¶ 2). Here, that mission is frustrated because the Ordinance both discourages members from providing day laborers assistance at street corners as well as discourages day laborers, including members of Centro,
10

“from bothering[ing] to solicit work in the streets of Locust Valley or anywhere else in Oyster Bay. (Torres Dep. at 270).
Finally, Ms. Torres’s statement in her deposition that the Town has not interfered with Centro’s activities since the enactment of the Ordinance does not preclude standing. (Id. at 243, 276). As plaintiff correctly notes, the Town could not have interfered with Centro’s activities once the Ordinance was enjoined on May 20, 2010, a mere two months after Centro’s formation. Moreover, as already discussed above, Centro has presented sufficient evidence demonstrating that the Ordinance poses a “threatened injury in fact” to its advocacy efforts. Ragin, 6 F.3d at 904.
B. Representational Standing Both the defendants and Centro concur that this court is bound by precedent set in Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973) and recently upheld in this circuit prohibiting plaintiffs from bringing § 1983 claims based on representational standing. See Nnebe, 644 F.3d at 156; Kryas Joel Alliance v. Vil. of Kiryas Joel, 495 F. App’x 183, 189 (2d Cir. 2012). Still, the Court need not even reach this question because as set out above Centro has achieved organizational standing in its own right. C. Legal Capacity Defendants’ argument that Centro lacks legal capacity to sue is unconvincing. Legal capacity is governed by Federal Rule of Civil Procedure 17(b). According to Rule 17(b)(3), an organization’s capacity to sue is governed by the law of the state in which the action is brought, except that “a partnership or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under
11

the United States Constitution or laws.” Here, regardless of state law, Centro, an unincorporated association, has legal capacity to bring suit because all of its claims allege violations of the United States Constitution.
Further, Centro is more than a mere “phantom of an organization” as defendants claim (Defs.’ Mem. in Supp. of Summ. J. at 7). It is clear from the record that even though Centro does not have formal membership policies, it is still comprised of individuals present at its bimonthly meetings. (Torres Decl I ¶ 4). In addition, Centro keeps record of these members, including names and addresses, and some of these members even participate in Centro’s elected steering committee. (Id. ¶ 3; Torres Dep. at 150). Centro does not deny that it was formed in part in response to the Ordinance at issue, but that fact does not diminish its status as an organization.
D. Conclusion The defendants have failed to establish that plaintiff Centro lacks standing to bring this suit. Accordingly, their motion for summary judgment is denied. III. Motion to Dismiss Defendants’ Counterclaims On October 19, 2011, the defendants issued their answer to the plaintiffs’ amended complaint. The defendants’ answer sought declaratory judgment on the following four counterclaims: (1) The Ordinance is a lawful time, place, or manner restriction and does not violate the First Amendment to the United States Constitution; (2) The speech in question constitutes unlawful speech that is not entitled to any constitutional protection, and therefore the Ordinance does not violate the First Amendment; (3) The speech in question constitutes commercial speech, but the Ordinance advances a substantial government interest, and
12

accordingly does not violate the First Amendment; (4) The Ordinance is not unconstitutionally vague and does not violate the First or Fourteenth Amendments.
The defendants’ answer also raised the following four affirmative defenses: (1) The Ordinance constitutes a reasonable time, place, and manner restriction; (2) Any speech abridged by the Ordinance constitutes commercial speech related to illegal conduct and is not entitled to Constitutional Protection; (3) The Ordinance constitutes lawful restriction of commercial speech.
A. Standard “The plaintiffs move to dismiss the defendants’ counterclaims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because they claim that the court in its discretion should not address these claims under the Declaratory Judgment Act, 28 U.S.C. § 2201.” (Pls.’ Mem. in Supp. of Mot. to Dismiss at 12). Upon consideration of a motion to dismiss for lack of subject matter jurisdiction, it is the claimant who bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). B. The Declaratory Judgment Act The Declaratory Judgment Act states that “in a case of actual controversy within its jurisdiction...any court...may declare the rights and other legal relations of any interested party.” 28. U.S.C. § 2201 (emphasis added). The act “confers federal courts with the discretion to exercise or decline subject-matter jurisdiction” over a party’s request for a declaration of its rights. Arista Records LLC v. Usenet.com, Inc., 2008 WL 4974823, at *2 (S.D.N.Y. Nov. 24, 2008). According to the Supreme Court, this discretion is “unique and substantial.” Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). In fact, the Second Circuit has found that “[c]ourts have consistently interpreted this permissive language as
13

a broad grant of discretion to district courts to refuse to exercise judgment over a declaratory action that they would otherwise be empowered to hear.” Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003). The Second Circuit has also held that a relevant consideration in determining whether to exercise judgment is “whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved.” Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir. 2005); Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180, 187 (2d Cir. 2010).
C. Defendants’ Counterclaims Should Be Dismissed Courts have held that “when a counterclaim is merely the ‘mirror image’ of an opposing party’s claim and the counterclaim serves no independent purpose, the counterclaim may be dismissed.” Worldwide Home Products, Inc. v. Bed Bath and Beyond, Inc., 2013 WL 247839, *2 (S.D.N.Y. Jan. 22, 2013); see Arista Records, 2008 WL 4974823, at *3. “In determining whether a counterclaim is merely a mirror image of a claim, the court must consider whether a case or controversy would still exist in connection with the counterclaim if the court entered a judgment dismissing the opponent’s claim.” Worldwide Home Products, 2013 WL 247839, at *2. The court may dismiss a defendant’s counterclaim where it is merely a repackaging of its defenses and mirrors the plaintiff’s claims. See id. at *3. The Court finds that the declaratory relief requested by the defendants would not serve a useful purpose for the following reasons. First, the defendants’ first three counterclaims are nothing more than its first three affirmative defenses repackaged, and all four counterclaims are mirror images of the plaintiffs’ claims. If the Court were to dismiss the plaintiffs’ constitutional claims, no case or controversy would remain that could be addressed by the plaintiffs. The
14

plaintiffs cannot provide any redress to the Town who is simply a municipality seeking a declaratory judgment that the Ordinance is constitutional.
Second, the Court finds unconvincing the defendants argument that the overlapping issues raised in plaintiffs’ claims and defendants’ counterclaims will not be reached if the plaintiffs’ claims are dismissed on other grounds, in particular for lack of standing. (Defs.’ Mem. in Opp’n to Mot. to Dismiss at 5-6) As discussed in Section II above, the plaintiffs’ claims survive the challenge to standing that the defendants raised, rendering this argument moot.
Finally, the Court does not find helpful defendants’ suggestion that the Court determine this motion at the time of trial, nor does it find persuasive the defendants’ point that inclusion of the counterclaims will not prejudice the plaintiffs. (Defs’ Mem. in Opp’n to Mot. to Dismiss at 78). At this time, the Court does not see any benefit to delaying its ruling until a later date. Moreover, the fact that defendants’ counterclaims would not prejudice the plaintiff is no justification for allowing them when they do not serve a useful purpose.
Given the Court’s broad discretion to refuse to exercise judgment over declaratory actions, and for the reasons enumerated above, the defendants’ counterclaims are hereby dismissed with prejudice. IV. Appeal of Magistrate Decision to Grant Plaintiffs a Protective Order
On October 12, 2011, the defendants served the plaintiffs with various discovery demands now at issue. These demands requested information from the plaintiffs regarding the identities of the specific members of the plaintiff organizations as well as day laborers known to them.3 The
3 Specifically, the plaintiffs sought a protective order entitling them to withhold documents and make redactions to documents responsive to Document Requests 3-7, 10, 19, 22, 23, 29, and 33-37 and Interrogatories 1-3, 5, and 7-12. (Aff. of Timothy Hill, Ex. 2, Appx. to Pls.’ Mot. for Protective Order). Each of these categories requests specific identifying information, for example, names and addresses, of the members of Centro, the Workplace
15

plaintiffs objected to these demands claiming that their interest in privacy outweighed the defendants’ need for or interest in the requested information. (Aff. of Timothy Hill, Ex. 2). Magistrate Judge Lindsay issued a protective order prohibiting discovery into the identities of the members and individual day laborers known to the plaintiff organizations. This Court affirms Magistrate Judge Lindsay’s order.
A. Standard of Review This Court reviews Magistrate Judge’s decisions regarding non-dispositive pretrial matters under a “clearly erroneous or contrary to law” standard. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a). Discovery matters generally are considered non-dispositive of litigation. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). An order is “clearly erroneous” only if a reviewing court, considering the entirety of the evidence, “ is left with the definite and firm conviction that a mistake has been committed”; an order is “contrary to law” when it “fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Equal Employment Opportunity Comm. v. First Wireless Group, Inc., 225 F.R.D. 404, 405 (E.D.N.Y. 2004) (quoting Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001)). This standard is “highly deferential,” “imposes a heavy burden on the objecting party,” and “only permits reversal where the magistrate judge abused his discretion.” Mitchell v. Century 21 Rustic Realty, 233 F. Supp. 2d 418, 430 (E.D.N.Y. 2002). B. Protective Order The Supreme Court has held that compelled disclosure of affiliation with groups engaged in advocacy may constitute a restraint on freedom of association. See NAACP v. Alabama, 357 U.S. 449, 460, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). New York State National Organization Project, or day laborers known to plaintiffs generally in Oyster Bay.
16

for Women v. Terry states that in considering whether to compel disclosure, the relevant inquiry is whether the party seeking to limit disclosure has made a prima facie showing that articulates “some resulting encroachment on their liberties,” shifting the burden to the other side “to demonstrate the necessary compelling interest in having discovery.” 886 F.2d 1339, 1355 (2d. Cir. 1989). It is important for courts to be “mindful of the crucial place speech and associational rights occupy under our constitution,” and that “in making out a prima facie case of harm the burden is light.” Id.; Schiller v. The City of N. Y., 2006 WL 3592547, *6 (S.D.N.Y. Dec. 7, 2006). (“As noted above, organizations resisting discovery on freedom of association grounds bear a minimal burden of proof.”). When evaluating infringement of First Amendment rights, “[g]iven the great importance of these rights, it is preferable to weigh whatever claims of chilling effect are made against the need for disclosure.” Snedigar v. Hodderson, 786 P.2d 781, 785 (Wash. 1990). In doing so, the court is also to consider common sense. See Local 1814, Int’l Long-Shoremen’s Assoc., AFL-CIO v. Waterfront Comm. of N. Y. Harbor, 667 F.2d 267, 271 (2d Cir. 1981).
While in some cases plaintiffs have met their burden by showing evidence of actual past harm, the Second Circuit has found that “a factual record of past harassment is not the only situation in which courts have upheld a First Amendment right.” Id. at 271. In fact, “the evidence offered need show only a reasonable probability that the compelled disclosure” will lead to “threats, harassment, or reprisals.” Buckley v. Valeo, 424 U.S. 1, 74, 98 S. Ct. 612, 46 L. Ed. 2d 659 (1976). For example, the concern that some of those considering whether to join or contribute to an organization “would be discouraged from doing so out of fear of retaliation” is “a
17

likely infringement on First Amendment rights.” United States v. Citizens State Bank, 612 F.2d 1091, 1093 (8th Cir. 1980); see also Terry, 886 F.2d at 1355.
Magistrate Judge Lindsay found that even though the plaintiffs did not make out a prima facie showing of harm, they were entitled to a protective order because the defendants could not show any need for the discovery. The Court finds that Magistrate Judge Lindsay reached the proper conclusion, although I disagree with her conclusion as to the harm required to establish a prima facie case under Terry. The Court finds that the plaintiffs did meet their light burden in making out a prima facie case, thereby shifting the burden to the defendants to show a compelling need for the discovery. The Court agrees with Judge Lindsay that the defendants did not meet this burden.
The Court finds that here the plaintiffs met the light burden required in making out a prima facie case that disclosure of the names of members and day laborers known to them would infringe upon the plaintiffs’ associational rights. Ms. Torres explains that some of Centro’s work “involves challenging the actions and decisions of the Town” and is “controversial and unpopular with local residents and governments.” (Aff. Of Timothy Hill, Ex. 2, Pls.’ Mot. for Protective Order, Decl. Of Luz Torres ¶¶ 6-7 (“Torres Decl. II”)). She is afraid that revealing the identities of the members and people associated with Centro would open the members up to harassment by the Town and other members of the community, chill open communication between the members, and deter people from becoming or remaining members. (Id. ¶¶ 10-12). Similarly, Angel Perez, the Executive Director of the Workplace Project, states that disclosing the identities of the Workplace Project would result in an “irreparable violation of trust” that has been built between members and people that interact with the Workplace Project as well as destroy the organization’s
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sought after “safe space” where members can share experiences without retaliation.4 (Aff. Of Timothy Hill, Ex. 2, Pls.’ Mot. for Protective Order, Decl. of Angel Perez ¶¶ 1, 14-17 (“Perez Decl. ”)). These declarations constitute a prima facie case because they demonstrate a likelihood that people would be deterred from remaining in or joining the plaintiff organizations out of a fear of retaliation, and as a result inhibit plaintiffs’ right to associate. See Citizens, 612 F.2d at 1093.
Further, the evidence in the record demonstrating that the Town has shown hostility toward day laborers and Latino immigrants gives rise to a reasonable probability that the disclosure in question would subject Centro, who advocates on behalf of Latino day laborers, to threats, harassment, or reprisals. Mr. Perez discusses the general anti-Latino sentiment that day laborers face, explaining, “I am personally aware of and have witnessed extreme, public antiLatino sentiment by both residents as well as local and state government officials on Long Island.” (Perez Decl. ¶ 11). As Ms. Torres explains, this sentiment reaches the day laborers, including members of Centro, who “have long complained to me about harassment and intimidation by neighbors, government officials, and law enforcement officers.” (Torres Decl. II ¶ 5). In addition, they “have been viewed with suspicion and hostility by the Town government” such that “disclosure of members’ names is likely to subject them to adverse social, political and economic consequences.” (Id. ¶ 15.). Mr. Perez echoes the same concerns. (Perez Decl. ¶ 10 (“Many of the day laborers who we work with are afraid to speak out in public about the harassment and threats they have encountered because they fear retaliation from law enforcement and other government officials.”)). In addition, articles surrounding debate over the Ordinance suggest that residents of Oyster Bay do not look fondly on the day laborers. (Aff. of Timothy
4 Even though the defendants challenge standing only as to Centro, the Protective Order issued by Judge Lindsay related to discovery sought from both Centro and the Workplace Project. Thus, both plaintiffs must meet the prima facie burden described in Terry.
19

Hill, Ex. 2, Pls.’ Mot. for Protective Order, Ex. C). As a result, both the law and common sense
demonstrate that the plaintiffs have made a prima facie showing that there is a reasonable
probability that compelled disclosure would lead to threats or harassment.
Having made a prima facie showing, the burden now shifts to the defendants to show a
compelling need for the discovery. Here, the Court agrees with Judge Lindsay’s opinion that the
defendants have shown no such need. In seeking to overturn that order, defendants frame the
issue thusly:
The sole issue presented for determ ination is whether the Town is entitled to discovery of the personal identif ying information of the members of the pl aintiff organizations and other day laborers known to them who have solicited employment on the streets of the Town, so that the testim ony of the se essential witnesses can be procured in support of the Town’s defense[s] of this action.
(Defs.’ Mem. in Obj. to J. Lindsay’s Order at 1 (“Defs,’ Mem. in Obj.”)).
The defenses referenced in the preceding quote are identified as “a) the commercial
speech at issue in this case is not entitled to any First Amendment protection because it is
intrinsically related to the unlawful conduct of the day laborers themselves, and b) that the
Ordinance is narrowly tailored to address the real world dangerous conditions created by the
personal conduct of the day laborers as they congregate on the streets and sidewalks of the
Town.”5 (Defs,’ Mem. in Obj. at 2-3).
With respect to the defense predicated on the purported “unlawful conduct of the day
laborers themselves,” that subject was discussed briefly at the time the temporary restraining
5 Parenthetically the Ordinance’s reach is not limited to those who “congregate on the streets and sidewalks of the Town,” Defs.’ Mem. in Obj. at 2, but, under the terms of the Ordinance, extends to any individuals seeking employment positioned on property “adjacent to” the Town’s streets and sidewalks. See Chapter 205-32(c) of the Code of the Town of Oyster Bay (describing prohibited conduct) and Chapter 205-32(b) (defining the term “Public right-ofway”).
20

order was issued, as was the Supreme Court decision in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). In Central Hudson, the Supreme Court explained that the “government may ban forms of commercial speech...related to illegal activity.” Id. at 563-64. However, even though it is undisputed that “this Court’s preliminary TRO rulings have not foreclosed the Town’s illegality defense,” Defs.’ Mem. in Obj. at 22, the subject needs to be readdressed at this juncture given (a) that the instant appeal focuses on Judge Lindsay’s reference to those rulings, and (b) the identity of the day laborers is said by defendants to be critical to their illegality defense. The critical issue then, in reviewing the challenged protective order vis-a-vis the illegality defense, is whether the solicitations banned by the Oyster Bay Ordinance constitute speech “relative to illegal activity” as the term is used in Central Hudson as defendants maintain. If so, the discovery sought would be germane and the challenged order contrary to law. However, neither is the case.
Defendants furnished a transcript of the oral argument before the Second Circuit concerning this Court’s issuance of the preliminary injunction as part of their present motion papers. During the appellate argument, defendants posited that “the situation in Pittsburgh Press [Company v. the Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973)], is really conceptually very analogous” to the present case. (Affirm. Of Timothy Hill in Supp. of Defs.’ Mem. in Obj., Ex. 3, Tr. of Second Circuit argument held on April 26, 2011 at 9). In Pittsburgh Press, the Supreme Court held that a municipal ordinance prohibiting newspapers from publishing gender designated “help-wanted” advertising columns passed constitutional muster, i.e., did not violate the publisher’s rights under the First Amendment. The following excerpt from that opinion is instructive:
21

Discrimination in employment is not only com mercial activity, it is illegal commercial activity under the Ordinance. We have no doubt that a newspaper constitutionally could be forbidden to publi sh a want ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indicated by placement under columns caption ‘Narcotics for Sale’ and ‘Prostitutes Wanted’ rather than stated within the f our corners of the advertisement.
The illegality in this case m ay be less overt, but we see no difference in the principle here. Sex discrim ination in non-exempt employment has been declared illegal under 8(a) of the Ordinance, a provision not challenged here.
Id. at 388-89.
Pittsburgh Press does not aid defendants. The pivotal distinction between the scenario in
that case and the issue at hand, is that in Pittsburgh Press the illegality was embodied as part and
parcel of the prohibited speech. Which is to say, the gender-based placement of the
advertisements for non-exempt jobs was the speech for Central Hudson purposes. As such, the
advertisements, like the marketing efforts of prostitutes and drug dealers, were to use defendants’
term, “intrinsic” to their non-protected utterances. In contrast, the speech banned under the
Oyster Bay Ordinance targets efforts to solicit employment. That some of those involved in that
activity may endeavor to “sidestep[]...tax, employment, workers’ compensation, labor and
immigration laws,” Defs.’ Mem. in Obj. at 15, does not render the speech itself unlawful. See
Valle Del Sol, Inc. v. Whiting, 709 F.3d 808, 821 (9th Cir. 2013) (“Arizona argues that the day
labor provisions are permissible because they regulate speech only when associated with the
unlawful activity of blocking or impeding traffic. Arizona’s proposed rule would be a novel
extension of Central Hudson’s legality requirement, which is traditionally focused on the content
of affected speech - i.e., whether the speech proposes an illegal transaction - instead of whether
the speech is associated with unlawful activity.”).
22

In sum, Pittsburgh Press does not advance defendants’ position; moreover, absent from
their present submissions are any cites to authority supportive of the proposition that, in assessing
whether a commercial communication is constitutionally protected, it is appropriate to go behind
the speech in an effort to discover if the persons communicating - or the recipients of the
communications - are likely to satisfy any concomitant legal requirements, though not “intrinsic”
to the solicitation, may, or may not thereafter arise. Such latter considerations are better left to
the Internal Revenue Service, Homeland Security and like agencies, rather than inserted into
constitutional jurisdiction via “a novel extension of Central Hudson’s legality requirement.”
Valle Del Sol, Inc., 709 F.3d at 821.
Moreover, Judge Lindsay did not err in considering this Court’s ruling during the hearing
regarding the temporary restraining order. At that hearing, this Court considered the illegality of
day laborer transactions and concluded:
The fact that some of the day laborers here may be illegally in the country - - and, of course, presumably some are not - - and the fact that to the extent the transaction occurs on a street corner and, accordingly, labor law requirements, may not be satisfied, I don’t think renders the transaction unlawful for the purposes of the Central Hudson/Fox test. I don’t believe that is what is meant.
5/20/10 Tr. at 65-66. Even though defendants assert that this Court’s rulings during the TRO
stage of this proceedings are not binding, Magistrate Judge Lindsay did not commit clear error in
considering this Court’s ruling and agreeing with its reasoning.
Nor did Judge Lindsay misinterpret any of the Second Circuit’s comments during oral
argument on the TRO determination regarding the lack of factual record on the issue of illegal activity.6 The Second Circuit’s opinion does not mandate the development of a factual record. It
6As discussed supra, after entering a TRO, the Court scheduled a preliminary injunction hearing, but before the hearing the defendants asked the court to convert the TRO into an
23

left it up to this Court to determine whether to keep the preliminary injunction in place or to hold
a preliminary injunction hearing, and the parties, following remand, agreed to leave the
preliminary injunction in place and proceed to a trial on the merits. Further, any reliance on the
Second Circuit’s comments on the lack of a factual record at the preliminary injunction stage,
does not provide justification to develop the facts at the discovery phase when a balancing of the
interests weighs in favor of non-disclosure.
Defendants’ second basis for seeking to overturn the protective order shielding the
identity of plaintiffs’ membership and other day laborers known to have solicited employment at
the locations covered by the Ordinance is that such information is said to be indispensable to
establishing that the “Ordinance is tailored to address the real world dangerous conditions created
by the personal conduct of the day laborers as they congregate on the street and sidewalks of the
Town.” (Defs.’ Mem. in Obj. at 3). That argument - given the chilling effect that such disclosure
is likely to produce as discussed supra is unpersuasive. The Town, through its employees who
monitored the situation leading to the passage of the Ordinance, surely is in a position to provide
more than adequate evidence to articulate the Town’s defense (See e.g., Cardone Dep.).7
appealable preliminary injunction. Therefore, there was no opportunity to develop a factual record as to the issue of illegal speech.
7 The defendants also argue that the discovery is relevant to other issues in the case, particularly, the issue of whether or not plaintiffs can establish standing. As is set forth in Part II of this opinion, the Court does not find it necessary to obtain the names and other identifying information of the members of Centro and the Workplace Project in order to conclude that the plaintiffs have established standing on behalf of the organization itself. See NYCLU v. New York City Transit Authority, 684 F.3d 286, 295 (2d Cir. 2012) (holding that since NYCLU “did not sue on behalf of injured members, it need not identify any that have standing”).
Further, plaintiffs have assured defendants that they do not intend to offer proof or advance any claim at trial regarding the impact of the Ordinance on individual day laborers. (See Pls.’ Mem. in Opp. to Defs.’ Mem. in Obj. at 19), thereby eliminating any need for the discovery on that basis.
24

Finally, the Court finds no error in Judge Lindsay’s decision not to address any possibility
that a confidentiality agreement could cure the disclosure issues at hand. While the defendants
offer that the information sought would not be disclosed to any law enforcement, government
agency, third-party, or the public, the agreement does nothing to assuage the plaintiffs’ fears
about harassment from the Town, the very entity to whom the plaintiffs’ members wish to remain
anonymous.
It is clear from Judge Lindsay’s opinion that the invasion of privacy that would result from the discovery outweighs any need the defendants have for the discovery.8 Therefore, the
Court concludes that Magistrate Judge Lindsay did not commit clear error or issue a decision
contrary to law in deciding to issue a protective order to the plaintiffs.
CONCLUSION
For the reasons set forth above, the defendants’ motion for partial summary judgment is
denied. The plaintiffs’ motion to dismiss defendants’ counterclaims is granted. Magistrate Judge
Lindsay’s decision to issue a protective order to plaintiffs is affirmed. This action is respectfully
8 Though Judge Lindsay does not specifically discuss them, the Court notes that in cases involving plaintiffs whom defendants suspect to be undocumented aliens, courts often issue protective orders to protect plaintiffs from intimidation or harassment and the chilling effect that discovery of immigration status could have on potential plaintiffs, often referred to as an in terrorem effect. See Equal Employment Opportunity Commission, 225 F.R.D. at 406 (finding that discovery of immigration status would constitute unacceptable burden on public interest due to a chilling effect); Trejos v. Edita’s Bar and Restaurant, Inc., 2009 WL 749891, *2, (E.D.N.Y. Mar. 17, 2009) (precluding discovery regarding green cards or working papers because the in terrorem effect outweighed the need for disclosure). Though the discovery at issue here is not simply the immigration status of the plaintiffs’ members, but their identities in general, those rulings imply that the same in terrorem effect could be applied here, where immigration status easily could be obtained from the requested information.
25

referred to Magistrate Judge Lindsay for all remaining pretrial supervision.9 This includes plaintiffs’ motion to quash third party subpoenas which is currently pending.

Dated: Central Islip, New York June 18, 2013

SO ORDERED.
/s/ Denis R. Hurley Unites States District Judge

9 Plaintiffs’ request for a pre-motion conference regarding its anticipated motion to compel the deposition of PSO Cocchi (Docket Nos. 87,88) and defendants’ request for a premotion conference regarding an anticipated motion for a protective order striking the deposition of PSO Cocchi (Docket No. 91) are denied without prejudice and with the right to renew before Magistrate Judge Lindsay.
26

 
 Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 1 of 17

U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:10−cv−02262−DRH−ARL

MAGAPP

Centro De La Comunidad Hispana De Locust Valley et al v. Town of Oyster Bay et al Assigned to: Judge Denis R. Hurley Referred to: Magistrate Judge Arlene R. Lindsay Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/18/2010 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Centro De La Comunidad Hispana De Locust Valley

represented by Adriana Cecilia Pinon New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 212−607−3300 Fax: 212−607−3329 Email: apinon@nyclu.org TERMINATED: 10/10/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Levine 99 Hudson Street 14th Floor New York, NY 10013 212−739−7506 Email: alevine@latinojustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Eisenberg New York Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 212−344−3005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Iturralde LatinoJustice PRLDEF 99 Hudson Street 14th Fl New York, NY 10013 212−219−3360 Fax: 212−431−4276 Email: citurralde@latinojustice.org TERMINATED: 12/01/2011 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corey Stoughton New York Civil Liberties Union 125 Broad Street New York, NY 10004 212−344−3005 ext. 266 Fax: 212−344−3318 Email: cstoughton@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 2 of 17

Plaintiff The Workplace Project

Lee Gelernt American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad Street 17th Floor New York, NY 10004 (212) 549−2660 Email: lgelernt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Joynes Latino Justice PDLEF 99 Hudson Street, 14th Floor New York, NY 10013 212−219−3360 Fax: 212−431−4276 Email: ejoynes@latinojustice.org ATTORNEY TO BE NOTICED
Erin B. Harrist New York Civil Liberties Union 125 Broad St 19th Floor New York, NY 10004 212−607−3300 Fax: 212−607−3318 Email: eharrist@nyclu.org ATTORNEY TO BE NOTICED
Laura Huizar Latino Justice 99 Hudson Street, 14th Floor New York, NY 10013 212−739−7576 Fax: 212−431−4276 Email: lhuizar@latinojustice.org ATTORNEY TO BE NOTICED
represented by Adriana Cecilia Pinon (See above for address) TERMINATED: 10/10/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Levine 99 Hudson Street 14th Floor New York, NY 10013 212−739−7506 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/01/2011

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 3 of 17
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Joynes (See above for address) ATTORNEY TO BE NOTICED
Erin B. Harrist (See above for address) ATTORNEY TO BE NOTICED
Laura Huizar (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Town of Oyster Bay
Defendant John Venditto Town Supervisor of the Town of Oyster Bay

represented by Christopher Kendric Goldberg Segalla LLP 100 Garden City Plaza, Suite 225 Garden City, NY 11530−3203 516−281−9800 Fax: 516−281−9816 Email: ckendric@goldbergsegalla.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Halsby Sinnreich Sinnreich Kosakoff &Messina LLP 267 Carleton Avenue Suite 301 Central Islip, NY 11722 631−650−1200 Fax: 631−650−1207 Email: jsinnreich@skmlaw.net ATTORNEY TO BE NOTICED
Timothy F. Hill Sinnreich &Kosakoff LLP 267 Carleton Avenue Central Islip, NY 11722 631−650−1200 Fax: 631−650−1207 Email: thill@skmlaw.net ATTORNEY TO BE NOTICED
represented by Jonathan Halsby Sinnreich (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 4 of 17

Timothy F. Hill (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
John Venditto Town Supervisor of the Town of Oyster Bay TERMINATED: 06/18/2013

represented by Jonathan Halsby Sinnreich (See above for address) ATTORNEY TO BE NOTICED
Timothy F. Hill (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
Town of Oyster Bay TERMINATED: 06/18/2013

represented by Christopher Kendric (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Halsby Sinnreich (See above for address) ATTORNEY TO BE NOTICED

Timothy F. Hill (See above for address) ATTORNEY TO BE NOTICED

V.
Counter Defendant
Centro De La Comunidad Hispana De Locust Valley TERMINATED: 06/18/2013

represented by Adriana Cecilia Pinon (See above for address) TERMINATED: 10/10/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/01/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 5 of 17

Erin B. Harrist (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
The Workplace Project TERMINATED: 06/18/2013

represented by Adriana Cecilia Pinon (See above for address) TERMINATED: 10/10/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Iturralde (See above for address) TERMINATED: 12/01/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Corey Stoughton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Harrist (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
John Venditto Town Supervisor of the Town of Oyster Bay TERMINATED: 06/18/2013

represented by Jonathan Halsby Sinnreich (See above for address) ATTORNEY TO BE NOTICED
Timothy F. Hill (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
Town of Oyster Bay TERMINATED: 06/18/2013

represented by Christopher Kendric (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Halsby Sinnreich (See above for address) ATTORNEY TO BE NOTICED

Timothy F. Hill (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 6 of 17

V. Counter Defendant Centro De La Comunidad Hispana De Locust Valley TERMINATED: 06/18/2013
Counter Defendant The Workplace Project TERMINATED: 06/18/2013

represented by Adriana Cecilia Pinon (See above for address) TERMINATED: 10/10/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/01/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin B. Harrist (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Cecilia Pinon (See above for address) TERMINATED: 10/10/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address)

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 7 of 17
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin B. Harrist (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/18/2010
05/18/2010
05/18/2010 05/18/2010
05/18/2010
05/18/2010 05/18/2010 05/19/2010 05/19/2010
05/20/2010 05/20/2010 05/20/2010 05/20/2010
05/20/2010
05/20/2010

# Docket Text
NOTICE; pursuant to the instructions of Judge Wexler's chambers, this case has been randomly reassigned. Judge Wexler no longer assigned to case. Case assigned to Judge Hurley. (McMahon, Carol) (Entered: 05/18/2010)
1 COMPLAINT against Town of Oyster Bay, John Venditto Disclosure Statement on Civil Cover Sheet completed −No,, filed by The Workplace Project, Centro De La Comunidad Hispana De Locust Valley. (Attachments: # 1 Civil Cover Sheet) (Ryan, Mary) (Entered: 05/18/2010)
2 AFFIRMATION of attorney Corey Stoughton re 1 Complaint (Ryan, Mary) (Entered: 05/18/2010)
3 Proposed Order to Show Cause and Temporary Restraining order. (Attachments: # 1 Declaration fo Nadia Marin, # 2 Declaration of Luz Torres) (Ryan, Mary) (Entered: 05/18/2010)
4 MEMORANDUM in Support re 3 Proposed Order to Show Cause and Temporary Restraining Order. filed by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Ryan, Mary) (Entered: 05/18/2010)
Summons Issued as to Town of Oyster Bay, John Venditto. (Ryan, Mary) (Entered: 05/18/2010)
FILING FEE: $ 350, receipt number 3279 (Ryan, Mary) (Entered: 05/18/2010)
Case Ineligible for Arbitration (Bollbach, Jean) (Entered: 05/19/2010)
5 Minute Entry for proceedings held before Senior Judge Denis R. Hurley:Show Cause Hearing held on 5/19/2010 (Court Reporter Owen Wicker.) (Best, Patricia) (Entered: 05/19/2010)
6 Letter Brief re: Membership Standing by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (Stoughton, Corey) (Entered: 05/20/2010)
7 NOTICE of Appearance by Timothy F. Hill on behalf of Town of Oyster Bay, John Venditto (aty to be noticed) (Hill, Timothy) (Entered: 05/20/2010)
8 NOTICE by Town of Oyster Bay, John Venditto in response to Judge's request for position on standing issue (Hill, Timothy) (Entered: 05/20/2010)
ORDER : Defendants are directed to file with the Clerk of Court (via ECF) the memorandum that was provided to the Court and opposing counsel at yesterday's hearing. Ordered by Senior Judge Denis R. Hurley on 5/20/2010. (Gapinski, Michele) (Entered: 05/20/2010)
9 MEMORANDUM in Opposition to Plaintiff's application for a Temporary Restraining Order filed by Town of Oyster Bay, John Venditto. (Hill, Timothy) (Entered: 05/20/2010)
10 ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING ORDER; That the above named Defts show before this Court, at Room 930, United States Courthouse, 100 Federal Plaza, Central Islip, NY 11722−443, on May 28, 2010, at 2 p.m., why an order should not be issued purs. to Rule 65(b) of the F.R.C.P. granting a preliminary injunction staying enforcement of Chapter 205.32 of the

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 8 of 17

05/20/2010 05/21/2010 05/21/2010 05/24/2010 05/25/2010 05/25/2010 05/25/2010
05/25/2010
05/26/2010 05/26/2010

Code of the Town of Oyster Bay; that from this date until the hearing on Pltffs' motion for preliminary injunction, enforcement of Chapter 205.32 of the Code of the Town of Oyster Bay is hereby enjoined purs. to the Court's authority to issue a temporary restraining order; and that a copy of this order, together with the papers upon which it is granted, be served upon counsel for the Defts on or before May 20, 2010, at 5:00 p.m. a that such service be deemed good and sufficient. ( Ordered by Senior Judge Denis R. Hurley on 5/20/2010.) (Fagan, Linda) (Entered: 05/20/2010)
11 Minute Entry for proceedings held before Senior Judge Denis R. Hurley:Show Cause Hearing held on 5/20/2010. The Court grants plaintiff's application for a TRO. Preliminary Injunction hearing set for Friday, May 28, 2010 at 2:00 pm (Court Reporter Owen Wicker.) (Best, Patricia) (Entered: 05/20/2010)
12 MOTION for Leave to Appear Pro Hac Vice Pro Hac Vice Filing fee $ 25, receipt number 0207−4163662. by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Proposed Order) (Gelernt, Lee) (Entered: 05/21/2010)
13 CERTIFICATE OF SERVICE by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project re 12 MOTION for Leave to Appear Pro Hac Vice Pro Hac Vice Filing fee $ 25, receipt number 0207−4163662. (Gelernt, Lee) (Entered: 05/21/2010)
ORDER denying 12 : Attorneys admitted in New York State must seek to be admitted to practice in the Eastern District of New York rather than seeking to be admitted pro hac vice. Ordered by Magistrate Judge Arlene R. Lindsay on 5/24/2010. c/ecf (Miller, Dina) (Entered: 05/24/2010)
14 Letter Application to Adjourn Conference Preliminary Injunction Hearing by Town of Oyster Bay, John Venditto. (Hill, Timothy) Modified on 5/26/2010 (Fagan, Linda). (Entered: 05/25/2010)
15 Letter Application to Adjourn Conference Preliminary Injunction Hearing (Correcting Letter Erroneously Filed Under Docket No. 14) by Town of Oyster Bay, John Venditto. (Hill, Timothy) Modified on 5/26/2010 (Fagan, Linda). (Entered: 05/25/2010)
ORDER re 15 Letter Application to Adjourn Conference Preliminary Injunction Hearing (Correcting Letter Erroneously Filed Under Docket No. 14) filed by Town of Oyster Bay, John Venditto: Plaintiffs shall serve and file a response to Defendants' request before the close of business on Wednesday, May 26, 2010. Ordered by Senior Judge Denis R. Hurley on 5/25/2010. (Gapinski, Michele) Modified on 5/26/2010 (Fagan, Linda). (Entered: 05/25/2010)
Motions terminated, docketed incorrectly: 15 Letter MOTION to Adjourn Conference Preliminary Injunction Hearing (Correcting Letter Erroneously Filed Under Docket No. 14) filed by Town of Oyster Bay, John Venditto, 14 Letter MOTION to Adjourn Conference Preliminary Injunction Hearing filed by Town of Oyster Bay, John Venditto. (The documents should have been filed as LETTER applications, and the Court has and will address the documents as such. All corrections have been made.) (Fagan, Linda) (Entered: 05/26/2010)
16 Letter in Response to Defendants' Letter Application Seeking Adjournment of Preliminary Injunction Hearing by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (Stoughton, Corey) (Entered: 05/26/2010)
ORDER re 15 Letter Application to Adjourn filed by Town of Oyster Bay, John Venditto, 16 Letter filed by The Workplace Project, Centro De La Comunidad Hispana De Locust Valley : The hearing scheduled for May 28, 2010 is hereby canceled. Plaintiffs shall file a proposed preliminary injunction order consistent with the Court's May 20, 2010 bench decision and the referenced letters by counsel before the close of business on Thursday, May 27, 2010. Defendants shall have until the close of business on Friday, May 28, 2010 to file objections, if any, to the proposed order. The temporary restraining order issued on May 20, 2010 shall remain in effect pending the Court's entry of a preliminary injunction order. Ordered by Senior Judge Denis R. Hurley on 5/26/2010. (Gapinski, Michele)

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 9 of 17

05/27/2010 05/27/2010 06/01/2010
06/10/2010 06/11/2010 06/11/2010 06/11/2010 06/14/2010
06/14/2010 06/14/2010 06/15/2010 06/15/2010 06/21/2010 06/21/2010

Modified on 5/27/2010 (Fagan, Linda). (Entered: 05/26/2010)
17 Letter Pursuant to the Court's May 26 Order by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (Attachments: # 1 Proposed Order Granting Preliminary Injunction) (Stoughton, Corey) (Entered: 05/27/2010)
18 Letter Pursuant to Court's May 26, 2010 Order advising of no objection to Plaintiffs' proposed order by Town of Oyster Bay, John Venditto (Hill, Timothy) (Entered: 05/27/2010)
19 ORDER GRANTING PRELIMINARY INJUNCTION; For the reasons set forth on the record by the Court on May, 20, 2010, a copy of the transcript of which is attached and incorporated herein, IT IS HEREBY ORDERED that Defts Town of Oyster Bay and John Venditto, together with their subdivisions and representatives are hereby preliminary enjoined from enforcing Chapter 205.32 of the Code of the Town of Oyster Bay, pending final resolution of the merits of Pltffs' First Amendment claims. ( Ordered by Senior Judge Denis R. Hurley on 6/1/2010.) (Attachments: # 1 Transcript of Proceedings, dated May 20, 2010) (Fagan, Linda) (Entered: 06/01/2010)
20 Letter Jointly with Plaintiffs by Town of Oyster Bay, John Venditto, REPORT of Rule 26(f) Planning Meeting (Sinnreich, Jonathan) (Entered: 06/10/2010)
21 Letter MOTION for Extension of Time to File Answer on consent by Town of Oyster Bay, John Venditto. (Attachments: # 1 Exhibit) (Hill, Timothy) (Entered: 06/11/2010)
ORDER granting 21 : The defendants' time to respond to the complaint is extended to 6/22/2010. Ordered by Magistrate Judge Arlene R. Lindsay on 6/11/2010. c/ecf (Miller, Dina) (Entered: 06/11/2010)
22 Letter MOTION to Stay Discovery by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Stoughton, Corey) (Entered: 06/11/2010)
ORDER re 20 22 : The plaintiffs' motion for a stay of discovery is granted. The parties are directed to notify the court immediately upon receipt of a decision from the Second Circuit. Ordered by Magistrate Judge Arlene R. Lindsay on 6/14/2010. c/ecf (Miller, Dina) (Entered: 06/14/2010)
23 Letter requesting conference call with Court and all counsel by Town of Oyster Bay, John Venditto (Sinnreich, Jonathan) (Entered: 06/14/2010)
24 RESPONSE in Opposition re 22 Letter MOTION to Stay Discovery filed by Town of Oyster Bay, John Venditto. (Sinnreich, Jonathan) (Entered: 06/14/2010)
25 NOTICE of Appearance by Christopher Kendric on behalf of Town of Oyster Bay (aty to be noticed) (Kendric, Christopher) (Entered: 06/15/2010)
26 ORDER re 23 and 24 : See attached order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 6/15/2010. c/ecf (Miller, Dina) (Entered: 06/15/2010)
27 NOTICE OF APPEAL as to 19 Preliminary Injunction,, by Town of Oyster Bay, John Venditto. Filing fee $ 455, rec. no.NYEC003585. (Romano, Daniel) (Entered: 06/21/2010)
Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 24 Response in Opposition to Motion, 17 Letter, 4 Memorandum in Support, 15 Motion to Adjourn Conference, 14 Motion to Adjourn Conference, 27 Notice of Appeal, 1 Complaint, 21 Motion for Extension of Time to File Answer, 9 Memorandum in Opposition, 26 Order, 25 Notice of Appearance, 11 Show Cause Hearing, 3 Unsigned Order to Show Cause, 16 Letter, 23 Letter, 8 Notice(Other), 18 Letter, 5 Show Cause Hearing, 13 Certificate of Service, 19 Preliminary Injunction,, 6 Letter, 20 Letter, Report of Rule 26(f) Planning Meeting, 12 Motion for Leave to Appear Pro Hac Vice, 22 Motion to Stay, 2 Affidavit, 10 Order to Show Cause,,, 7 Notice of Appearance (Romano, Daniel) (Entered: 06/21/2010)

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 10 of 17

06/22/2010 07/08/2010 07/12/2010 05/13/2011 05/17/2011 05/17/2011
05/17/2011
05/18/2011 06/03/2011
07/29/2011
08/11/2011 08/12/2011 08/25/2011 08/26/2011
08/29/2011

28 ANSWER to 1 Complaint, COUNTERCLAIM against Centro De La Comunidad Hispana De Locust Valley, The Workplace Project by John Venditto, Town of Oyster Bay. (Hill, Timothy) (Entered: 06/22/2010)
29 NOTICE of Change of New Firm Contact Information by Christopher Kendric (Kendric, Christopher) (Entered: 07/08/2010)
30 ANSWER to 28 Answer to Complaint, Counterclaim by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Stoughton, Corey) (Entered: 07/12/2010)
31 NOTICE by Town of Oyster Bay, John Venditto of Second Circuit decision (Hill, Timothy) (Entered: 05/13/2011)
32 Letter MOTION for Discovery to resume (lift stay) upon remand from Second Circuit and for conference regarding same by Town of Oyster Bay, John Venditto. (Hill, Timothy) (Entered: 05/17/2011)
33 MANDATE of USCA as to 27 Notice of Appeal filed by Town of Oyster Bay, John Venditto: UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the ruling of the district court is AFFIRMED. For the reasons outlined in this mandate, we AFFIRM the district courts order and REMAND forfurther proceedings. USCA # 10−2505. (Russo, Eric) (Entered: 05/17/2011)
SCHEDULING ORDER: Plaintiffs shall respond to defendants' May 17, 2011 letter 32 by 5:00 p.m. on Thursday, May 19, 2011. The response should include plaintiffs' position, if any, on whether motion practice would be appropriate at this stage. Ordered by Senior Judge Denis R. Hurley on 5/17/2011. (Malley, Sean) (Entered: 05/17/2011)
34 Letter to Court by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (Iturralde, Christina) (Entered: 05/18/2011)
ORDER granting 32 Motion for Discovery. In light of the Second Circuit's recent decision in this case (docket no. 33 ), and the parties' subsequent letters to the Court (docket nos. 32 , 34 ), the Court hereby lifts the stay of discovery in this case and refers the matter to Magistrate Judge Lindsay for supervision of discovery and other pretrial matters. Ordered by Senior Judge Denis R. Hurley on 6/3/2011. (Malley, Sean) (Entered: 06/03/2011)
35 Initial Conference ORDER: If counsel cannot agree to the proposed schedule or minor modifications thereof, as attached, they are directed to appear before the undersigned in Courtroom 810, United States Federal Courthouse, Central Islip, New York at the date and time provided in the initial conference order. See attachments for details. Ordered by Magistrate Judge Arlene R. Lindsay on 7/29/2011. (Attachments: # 1 Proposed Order) (Imrie, Robert) (Entered: 07/29/2011)
36 Letter Requesting Adjournment of Initial Conference by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (Stoughton, Corey) (Entered: 08/11/2011)
ORDER re 36 : The initial conference scheduled for August 17, 2011 is adjourned to September 14, 2011 at 2:00 p.m. Ordered by Magistrate Judge Arlene R. Lindsay on 8/12/2011. c/ecf (Miller, Dina) (Entered: 08/12/2011)
37 REPORT of Rule 26(f) Planning Meeting (Hill, Timothy) (Entered: 08/25/2011)
ORDER re 37 : The parties have advised the court that they agree to the dates set forth in the proposed scheduling order. Accordingly, the initial conference scheduled for September 14, 2011 at 2:00 p.m. is canceled. The scheduling order will be entered by the court. Ordered by Magistrate Judge Arlene R. Lindsay on 8/26/2011. c/ecf (Johnston, Linda) (Entered: 08/26/2011)
38 SCHEDULING ORDER: Final Pretrial Conference set for 3/19/2012 02:00 PM before Magistrate Judge Arlene R. Lindsay.Ordered by Magistrate Judge Arlene R. Lindsay on 8/29/2011. (Imrie, Robert) (Entered: 08/29/2011)

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 11 of 17

09/28/2011 09/29/2011
09/29/2011 10/19/2011 11/10/2011 11/21/2011 11/22/2011
11/30/2011 12/01/2011 01/20/2012 01/23/2012 01/27/2012 01/30/2012

39 MOTION to Amend/Correct/Supplement Complaint by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Affidavit in Support of Motion to File Amended Complaint, # 2 Exhibit Exhibit 1 (Amended Complaint), # 3 Exhibit Exhibit 2 (Written Consent to File Amended Complaint)) (Stoughton, Corey) (Entered: 09/28/2011)
ORDER granting 39 Motion to Amend/Correct/Supplement the Complaint as stipulated by the parties (see docket no. 39 ) pursuant to Fed. R. Civ. P. 15(a)(2). Plaintiffs' counsel is directed to electronically file the Amended Complaint as a new docket item. Defendants shall respond to the amended pleading within 14 days of such filing. See Fed. R. Civ. P. 15(a)(3). Ordered by Senior Judge Denis R. Hurley on 9/29/2011. (Malley, Sean) (Entered: 09/29/2011)
40 AMENDED COMPLAINT against Town of Oyster Bay, John Venditto, filed by The Workplace Project, Centro De La Comunidad Hispana De Locust Valley. (Stoughton, Corey) (Entered: 09/29/2011)
41 ANSWER to 40 Amended Complaint , COUNTERCLAIM against All Plaintiffs by All Defendants. (Hill, Timothy) (Entered: 10/19/2011)
42 Letter MOTION for pre motion conference re motion to dismiss counterclaims by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Stoughton, Corey) (Entered: 11/10/2011)
43 RESPONSE to Motion re 42 Letter MOTION for pre motion conference re motion to dismiss counterclaims filed by Town of Oyster Bay, John Venditto. (Sinnreich, Jonathan) (Entered: 11/21/2011)
ORDER re 42 Motion for Pre Motion Conference : The Court is in receipt of plaintiffs' request for a premotion conference, as well as defendants' response. The Court hereby waives its premotion conference requirement and grants plaintiffs leave to move against defendants' counterclaims according to the following schedule: plaintiffs shall serve (but not file) their motion by December 20, 2011; defendants shall serve (but not file) their opposition by January 20, 2012; and plaintiffs shall serve their reply, if any, and electronically file the fully briefed motion (including defendants' opposition papers) by February 3, 2012, with courtesy copies of all documents to Chambers. No papers are to be filed until the motion is fully briefed. See Individual Rule 3F. Ordered by Senior Judge Denis R. Hurley on 11/22/2011. (Malley, Sean) (Entered: 11/22/2011)
44 MOTION to Withdraw as Attorney by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Affidavit of Christina Iturralde, # 2 Certificate of Service by Christina Iturralde) (Iturralde, Christina) (Entered: 11/30/2011)
ORDER granting 44 : Motion to Withdraw as Attorney. Attorney Christina Iturralde terminated. Ordered by Magistrate Judge Arlene R. Lindsay on 12/1/2011. c/ecf (Miller, Dina) (Entered: 12/01/2011)
45 Letter MOTION for Extension of Time to File Response/Reply to Motion to Dimiss counterclaims, on consent, by Town of Oyster Bay, John Venditto. (Hill, Timothy) (Entered: 01/20/2012)
ORDER granting 45 Motion for Extension of Time to File Response/Reply. The Court hereby adopts the proposed alternate motion schedule set forth in the parties' joint 1/20/12 letter request. Ordered by Senior Judge Denis R. Hurley on 01/23/12. (Malley, Sean) (Entered: 01/23/2012)
46 Letter MOTION for pre motion conference on discovery disputes by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Stoughton, Corey) (Entered: 01/27/2012)
ORDER re 46 : The court has reviewed the letter and finds that a pre−motion conference is not necessary. The court will treat the plaintiffs' January 27, 2012 letter as a letter application for a protective order. The defendants may respond pursuant to Local Rule 37.3. Ordered by Magistrate Judge Arlene R. Lindsay on 1/30/2012. c/ecf (Miller, Dina) (Entered: 01/30/2012)

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 12 of 17

02/01/2012 02/03/2012 02/06/2012 02/06/2012 02/13/2012 02/17/2012
02/27/2012 02/27/2012 02/27/2012 02/28/2012 03/02/2012
03/09/2012
03/09/2012
03/09/2012 03/09/2012

47 RESPONSE in Opposition re 46 Letter MOTION for pre motion conference on discovery disputes (as converted to motion for protective order) filed by Town of Oyster Bay, John Venditto. (Attachments: # 1 Exhibit Interrogatory Responses, # 2 Exhibit Document Responses) (Hill, Timothy) (Entered: 02/01/2012)
48 MOTION for Discovery by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Levine, Alan) (Entered: 02/03/2012)
49 RESPONSE in Opposition re 48 MOTION for Discovery filed by All Defendants. (Sinnreich, Jonathan) (Entered: 02/06/2012)
50 NOTICE of Appearance by Elizabeth Joynes on behalf of All Plaintiffs (aty to be noticed) (Joynes, Elizabeth) (Entered: 02/06/2012)
51 ORDER re 46 and 48 : See attached order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 2/13/2012. c/ecf (Miller, Dina) (Entered: 02/13/2012)
52 Fully Briefed MOTION to Dismiss for Lack of Jurisdiction Defendants' Counterclaims by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. Responses due by 2/17/2012 (Attachments: # 1 Memorandum in Support of Motion to Dismiss Counterclaims, # 2 Memorandum in Opposition to Plaintiffs' Motion to Dismiss Counterclaims, # 3 Memorandum in Support of Plaintiffs' Motion to Dismiss Counterclaims (Reply)) (Stoughton, Corey) Modified on 6/18/2013 (Mahon, Cinthia). (Entered: 02/17/2012)
53 Letter MOTION for Extension of Time to File Response/Reply to plaintiffs' motion for a protective order by Town of Oyster Bay, John Venditto. (Hill, Timothy) (Entered: 02/27/2012)
54 REPLY in Support re 53 Letter MOTION for Extension of Time to File Response/Reply to plaintiffs' motion for a protective order noting plaintiffs' consent filed by All Defendants. (Hill, Timothy) (Entered: 02/27/2012)
55 REPLY in Support of Plaintiffs' Motion for Protective Order filed by All Plaintiffs. (Joynes, Elizabeth) (Entered: 02/27/2012)
ORDER granting 53 : The defendants may respond to the motion for a protective order by March 2, 2012. The plaintiffs may serve a reply and file the fully briefed motion by March 9, 2012. Ordered by Magistrate Judge Arlene R. Lindsay on 2/28/2012. c/ecf (Miller, Dina) (Entered: 02/28/2012)
56 RESPONSE in Opposition re 48 MOTION for Discovery and requesting oral argument filed by All Defendants. (Attachments: # 1 Memorandum in Opposition, # 2 Declaration Sinnreich, # 3 Exhibit Sinnreich A, # 4 Exhibit Sinnreich B, # 5 Exhibit Sinnreich C, # 6 Exhibit Sinnreich D, # 7 Declaration Fitzgerald, # 8 Exhibit Fitzgerald A, # 9 Exhibit Fitzgerald B) (Hill, Timothy) (Entered: 03/02/2012)
57 Fully Briefed MOTION for Protective Order by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion for a Protective Order, # 2 Memorandum in Support Stoughton, # 3 Affidavit Torres, # 4 Affidavit Perez) (Joynes, Elizabeth) (Entered: 03/09/2012)
58 MEMORANDUM in Opposition re: MOTION for Protective Order by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Affidavit in Opposition Sinnreich, # 2 Exhibit Sinnreich Exhibit A, # 3 Exhibit Sinnreich Exhibit B, # 4 Exhibit Sinnreich Exhibit C, # 5 Exhibit Sinnreich Exhibit D, # 6 Affidavit Fitzgerald, # 7 Exhibit Fitzgerald Exhibit A, # 8 Exhibit Fitzgerald Exhibit B) (Joynes, Elizabeth) Modified on 3/12/2012 (Fagan, Linda). (Entered: 03/09/2012)
59 REPLY MEMORANDUM in further support re: MOTION for Protective Order by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Joynes, Elizabeth) Modified on 3/12/2012 (Fagan, Linda). (Entered: 03/09/2012)
Motions terminated, docketed incorrectly: 58 Fully Briefed MOTION for Protective Order filed by The Workplace Project, Centro De La Comunidad Hispana De Locust Valley. ( The document should have been filed as a

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 13 of 17

03/09/2012
03/13/2012 03/30/2012 04/03/2012 04/04/2012 04/13/2012
04/18/2012 04/23/2012 07/23/2012 07/25/2012 07/30/2012 07/31/2012 08/01/2012 08/06/2012 08/15/2012

MEMORANDUM in OPPOSITION, and the court will address the document as such. All corrections have been made.) (Fagan, Linda) (Entered: 03/12/2012)
Motions terminated, docketed incorrectly: 59 Fully Briefed MOTION for Protective Order filed by The Workplace Project, Centro De La Comunidad Hispana De Locust Valley. ( The document should have been filed as a REPLY in SUPPORT, and the Court will address the document as such. All corrections have been made.) (Fagan, Linda) (Entered: 03/12/2012)
ORDER. The final conference scheduled for March 19, 2012 is adjourned without date. The court will reschedule the final conference after it considers the motion for a protective order. Ordered by Magistrate Judge Arlene R. Lindsay on 3/13/2012. c/ecf (Miller, Dina) (Entered: 03/13/2012)
60 ORDER granting 57 : See attached order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 3/30/2012. c/ecf (Miller, Dina) (Entered: 03/30/2012)
61 Letter MOTION for Extension of Time to File objections to Mag. Judge Lindsay's Order dated 3/30/12 by Town of Oyster Bay, John Venditto(Town Supervisor of the Town of Oyster Bay). (Sinnreich, Jonathan) (Entered: 04/03/2012)
ORDER granting 61 Motion for Extension of Time to File. Ordered by Senior Judge Denis R. Hurley on 4/4/2012. (Malley, Sean) (Entered: 04/04/2012)
62 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Town of Oyster Bay, John Venditto re 60 Order on Motion for Protective Order (Attachments: # 1 Memorandum in Support, # 2 Affidavit in Support, # 3 Exhibit 1 (Order), # 4 Exhibit 2 (Plaintiffs' moving papers), # 5 Errata 3 (Defendants' Opposition)) (Hill, Timothy) (Entered: 04/13/2012)
63 MEMORANDUM in Opposition re 62 Appeal of Magistrate Judge Decision to District Court, and in Support of Protective Order filed by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Affidavit) (Stoughton, Corey) (Entered: 04/18/2012)
64 REPLY in Support re 62 Appeal of Magistrate Judge Decision to District Court, filed by All Defendants. (Hill, Timothy) (Entered: 04/23/2012)
65 Letter MOTION for pre motion conference regarding motion to quash Defendants' third party subpoenas by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Stoughton, Corey) (Entered: 07/23/2012)
66 RESPONSE in Opposition re 65 Letter MOTION for pre motion conference regarding motion to quash Defendants' third party subpoenas filed by All Defendants. (Hill, Timothy) (Entered: 07/25/2012)
67 ORDER denying 65 : See attached order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 7/30/2012. c/ecf (Miller, Dina) (Entered: 07/30/2012)
68 Letter MOTION for pre motion conference re 67 Order on Motion for Pre Motion Conference, 66 Response in Opposition to Motion to Quash Non Party Subpoenas by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Stoughton, Corey) (Entered: 07/31/2012)
69 RESPONSE in Opposition re 68 Letter MOTION for pre motion conference re 67 Order on Motion for Pre Motion Conference, 66 Response in Opposition to Motion to Quash Non Party Subpoenas filed by All Defendants. (Hill, Timothy) (Entered: 08/01/2012)
70 Letter MOTION for pre motion conference by Town of Oyster Bay, John Venditto(Town Supervisor of the Town of Oyster Bay). (Sinnreich, Jonathan) (Entered: 08/06/2012)
ORDER: Before the Court are two premotion conference requests, one from each party. Plaintiff seeks to move to quash defendants' third−party subpoenas (see docket no. 68 ), while defendants seek to move for summary judgment, (see docket no. 70 .) The Court hereby waives its premotion conference requirement as to both motions, grants the parties leave to file their respective motions and sets the following briefing schedule. The parties shall serve (but not file) their respective

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 14 of 17

08/16/2012 08/16/2012 09/06/2012
09/25/2012 09/26/2012 10/09/2012 10/10/2012 10/18/2012
10/19/2012 10/19/2012 10/19/2012
10/19/2012

motions on each other by September 7, 2012. Both parties shall then serve (but not file) their respective oppositions by September 21, 2012; and by September 28, 2012, both parties shall serve their replies, if any, and electronically file their own fully briefed motions (including the opposing party's response brief) and provide courtesy copies of all papers to Chambers. No motion may be filed until fully briefed. Ordered by Judge Denis R. Hurley on 8/15/2012. (Malley, Sean) (Entered: 08/15/2012)
71 Joint MOTION for Extension of Time to File , more accurately to serve, motion for partial summary judgment (defendants) and motion to quash subpoena (plaintiffs) by Town of Oyster Bay. (Hill, Timothy) (Entered: 08/16/2012)
ORDER granting the 71 Joint Motion for Extension of Time, and adopting the proposed, revised briefing schedule set forth therein. Ordered by Judge Denis R. Hurley on 8/16/2012. (Malley, Sean) (Entered: 08/16/2012)
ORDER re 52 Motion to Dismiss for Lack of Jurisdiction: As the issues presented herein are sufficiently intertwined with the pending appeal of Magistrate Judge Lindsay's decision (see docket nos. 60 , 62 ) and the parties' anticipated cross motions to quash and for summary judgement (due to be filed on 10/12/12), the instant motion will be addressed simultaneously with these referenced matters. No further action by the parties regarding this particular motion is required at this time. Ordered by Judge Denis R. Hurley on 9/6/2012. (Malley, Sean) (Entered: 09/06/2012)
72 MOTION for Extension of Time to File Response/Reply by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Joynes, Elizabeth) (Entered: 09/25/2012)
ORDER granting 72 Motion for Extension of Time, and adopting the proposed, revised briefing schedule set forth therein. Ordered by Judge Denis R. Hurley on 9/26/2012. (Spatola, Richard) (Entered: 09/26/2012)
73 MOTION to Withdraw as Attorney by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Pinon, Adriana) (Entered: 10/09/2012)
ORDER granting 73 Motion to Withdraw as Attorney. Attorney Adriana Cecilia Pinon terminated. Ordered by Magistrate Judge Arlene R. Lindsay on 10/10/2012. c/ecf (Imrie, Robert) (Entered: 10/10/2012)
74 Fully Briefed MOTION to Quash Third Party Subpoenas by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Memorandum in Support of Motion to Quash Subpoenas, # 2 Affidavit in Support of Corey Stoughton in Support of Motion to Quash Supoenas, # 3 Exhibit A to Stoughton Affirmation, # 4 Exhibit B to Stoughton Affirmation, # 5 Affidavit of Service on Defendants, # 6 Memorandum in Opposition to Plaintiffs' Motion to Quash, # 7 Affidavit in Opposition of Jonathan Sinnreich, # 8 Memorandum in Support in Reply to Defendants' Opposition) (Stoughton, Corey) (Entered: 10/18/2012)
75 Letter MOTION for Leave to Electronically File Document under Seal by Town of Oyster Bay, John Venditto(Town Supervisor of the Town of Oyster Bay). (Hill, Timothy) (Entered: 10/19/2012)
76 MOTION for pre motion conference by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Levine, Alan) (Entered: 10/19/2012)
ORDER denying 75 : The parties' application is denied without prejudice and with the right to renew. A motion for leave to e−file a sealed document must include the proposed documents to be filed under seal as attachments. In addition, any renewed application should (1) contain a citation to the applicable confidentiality agreement, (2) set forth the parties' position as to how the presumption of public access to judicial documents is overcome in this case, and (3) include citations to case law or other legal authority that supports the parties' position. Ordered by Judge Denis R. Hurley on 10/19/2012. (Monaco, Laura) (Entered: 10/19/2012)
77 MOTION for Partial Summary Judgment by Town of Oyster Bay, John Venditto. (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit, # 4

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 15 of 17

10/19/2012 10/19/2012 10/19/2012 10/22/2012
10/22/2012 10/24/2012 10/25/2012 11/05/2012 12/19/2012 01/18/2013 01/23/2013 01/24/2013 01/24/2013 01/25/2013 01/25/2013 05/17/2013

Exhibit, # 5 Exhibit) (Hill, Timothy) (Entered: 10/19/2012)
78 RULE 56.1 STATEMENT re 77 MOTION for Partial Summary Judgment filed by All Defendants. (Hill, Timothy) (Entered: 10/19/2012)
79 RESPONSE in Opposition re 77 MOTION for Partial Summary Judgment Memorandum of Law filed by All Plaintiffs. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Rule 56.1 Statement) (Hill, Timothy) (Entered: 10/19/2012)
80 REPLY in Support re 77 MOTION for Partial Summary Judgment filed by All Defendants. (Attachments: # 1 Appendix) (Hill, Timothy) (Entered: 10/19/2012)
81 NOTICE by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project re 74 Fully Briefed MOTION to Quash Third Party Subpoenas of Supplemental Filing of Inadvertently Omitted Exhibits (Attachments: # 1 Exhibit A to Sinnreich Affirmation in Opposition to Motion to Quash, # 2 Exhibit B to Sinnreich Affirmation in Opposition to Motion to Quash, # 3 Exhibit C to Sinnreich Affirmation in Opposition to Motion to Quash, # 4 Exhibit D to Sinnreich Affirmation in Opposition to Motion to Quash, # 5 Exhibit E to Sinnreich Affirmation in Opposition to Motion to Quash) (Stoughton, Corey) (Entered: 10/22/2012)
82 MOTION for Leave to Electronically File Document under Seal by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Memorandum in Support, # 2 Declaration of E. Joynes, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C) (Joynes, Elizabeth) (Entered: 10/22/2012)
83 RESPONSE in Opposition re 76 MOTION for pre motion conference filed by All Defendants. (Hill, Timothy) (Entered: 10/24/2012)
84 MOTION for pre motion conference re 76 MOTION for pre motion conference by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Levine, Alan) (Entered: 10/25/2012)
85 REPLY in Opposition re 84 MOTION for pre motion conference re 76 MOTION for pre motion conference , 76 MOTION for pre motion conference filed by All Defendants. (Hill, Timothy) (Entered: 11/05/2012)
86 NOTICE of Appearance by Erin B. Harrist on behalf of Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (aty to be noticed) (Harrist, Erin) (Entered: 12/19/2012)
87 DEPOSITION by Centro De La Comunidad Hispana De Locust Valley. (Levine, Alan) (Entered: 01/18/2013)
88 MOTION for pre motion conference re 87 Deposition of PSO Cocchi by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Attachments: # 1 Corrected Letter) (Joynes, Elizabeth) (Entered: 01/23/2013)
89 Letter MOTION for pre motion conference by Town of Oyster Bay, John Venditto(Town Supervisor of the Town of Oyster Bay). (Sinnreich, Jonathan) (Entered: 01/24/2013)
90 RESPONSE in Opposition re 88 MOTION for pre motion conference re 87 Deposition of PSO Cocchi filed by All Defendants. (Sinnreich, Jonathan) (Entered: 01/24/2013)
ORDER re 89 : The request for a pre−motion conference for the purpose of seeking leave to file a motion for a protective order should be redirected to Judge Hurley. Ordered by Magistrate Judge Arlene R. Lindsay on 1/25/2013. c/ecf (Miller, Dina) (Entered: 01/25/2013)
91 Letter MOTION for pre motion conference by Town of Oyster Bay, John Venditto(Town Supervisor of the Town of Oyster Bay). (Sinnreich, Jonathan) (Entered: 01/25/2013)
92 NOTICE of Appearance by Laura Huizar on behalf of All Plaintiffs (aty to be noticed) (Huizar, Laura) (Entered: 05/17/2013)

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 16 of 17

06/18/2013
06/18/2013
08/05/2013 08/14/2013 08/21/2013 08/22/2013 08/22/2013 09/03/2013 09/09/2013 09/17/2013 09/18/2013 09/24/2013 09/25/2013

93 MEMORANDUM AND ORDER granting 82 Motion for Leave to Electronically File Document under Seal. For the reasons set forth in the attached Order, plaintiffs' motion to file documents under seal is granted. Documents that have been filed under seal shall remain under seal. Ordered by Judge Denis R. Hurley on 6/18/2013. (Kaley, Regina) Modified on 6/25/2013 (Fagan, Linda). (Main Document 93 replaced on 6/25/2013) (Fagan, Linda). (Entered: 06/18/2013)
94 MEMORANDUM AND ORDER granting 52 Motion to Dismiss for Lack of Jurisdiction; denying 77 Motion for Partial Summary Judgment; affirming 62 Judge Lindsay's order; denying 88 Motion for Pre Motion Conference; denying 91 Motion for Pre Motion Conference. This action is respectfully referred to Magistrate Judge Lindsay for all remaining pretrial supervision. This includes plaintiffs' motion to quash third party subpoenas which is currently pending. Ordered by Judge Denis R. Hurley on 6/18/2013. (Kaley, Regina) (Entered: 06/18/2013)
95 Letter requesting a status conference regarding discovery by Town of Oyster Bay, John Venditto (Hill, Timothy) (Entered: 08/05/2013)
96 ORDER granting 74 : See attached order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 8/14/2013. c/ecf (Miller, Dina) (Entered: 08/14/2013)
97 Letter MOTION for Extension of Time to File Joint Status Letter indicating remaining discovery by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Huizar, Laura) (Entered: 08/21/2013)
ORDER re 97 : the time to submit the joint status letter is extended to September 17, 2013. Ordered by Magistrate Judge Arlene R. Lindsay on 8/22/2013. c/ecf (Imrie, Robert) (Entered: 08/22/2013)
98 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Town of Oyster Bay, John Venditto re 96 Order on Motion to Quash (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Hill, Timothy) (Entered: 08/22/2013)
99 MEMORANDUM in Opposition to Defendants' Objections to Magistrate Judge's Order Quashing Subpoenas filed by All Plaintiffs. (Stoughton, Corey) (Entered: 09/03/2013)
100 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Town of Oyster Bay, John Venditto re 99 Memorandum in Opposition (Hill, Timothy) (Entered: 09/09/2013)
101 Letter MOTION for Extension of Time to File Joint Status Letter indicating remaining discovery by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Levine, Alan) (Entered: 09/17/2013)
ORDER re 101 : The application is granted. The parties shall submit a joint status letter on or before September 24, 2013. Ordered by Magistrate Judge Arlene R. Lindsay on 9/18/2013. c/ecf (Imrie, Robert) (Entered: 09/18/2013)
102 Letter Jointly with Defendants regarding discovery by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (Levine, Alan) (Entered: 09/24/2013)
ORDER re 102 : The parties' request to set a deadline for the conclusion of discovery sixty days after resolution of the disputes outlined in the letter is denied. However, the court will provide the parties sixty days from the date of this order to complete discovery. Accordingly, all discovery, inclusive of expert discovery, is to be completed by November 25, 2013. Any party planning on making a dispositive motion shall take the first step in the motion process by December 9, 2013. A final conference will be held on December 19, 2013 at 2:00 p.m. The parties are directed to electronically file a proposed joint pretrial order prior to the final conference. No further adjournments will be granted. The parties' request for a conference is denied at this time. Ordered by Magistrate Judge Arlene R. Lindsay on 9/25/2013. c/ecf (Miller, Dina) (Entered: 09/25/2013)

Case: 2:10-cv-02262-DRH-ARL As of: 02/11/2014 11:55 PM EST 17 of 17

09/26/2013
10/21/2013 12/06/2013 12/09/2013 12/09/2013 12/16/2013 01/16/2014
01/16/2014 01/17/2014

ORDER re 76 Motion for Pre Motion Conference; 84 Motion for Pre Motion Conference. Plaintiffs' request for a premotion conference on their motion for a permanent injunction is denied with the right to renew at the close of discovery. The Court hereby waives its pre−motion conference requirement regarding plaintiffs' motion to amend and sets the following briefing schedule: Plaintiffs shall serve (but not file) motion papers on or before October 25, 2013; Defendants shall serve (but not file) opposition papers on or before November 22, 2013; Plaintiffs shall serve and file all papers with the Court, including a courtesy copy for Chambers, on or before December 6, 2013. Plaintiffs' motion to amend is respectfully referred to Magistrate Judge Lindsay. It is further Ordered that the scope of the foregoing reference shall be deemed to encompass such additional authority as reasonable or necessary to perform the foregoing duties and as is not inconsistent with the Constitution or the laws of the United States. Ordered by Judge Denis R. Hurley on 9/26/2013. (Kaley, Regina) (Entered: 09/26/2013)
103 Letter Re: Motion to Amend by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project (Levine, Alan) (Entered: 10/21/2013)
104 Letter MOTION for Extension of Time to File Joint Pretrial Order noting Defendants' consent by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Huizar, Laura) (Entered: 12/06/2013)
ORDER re 104 : The December 19, 2013, conference is adjourned to January 21, 2014 at 2:00 p.m. The parties are to electronically file a joint proposed pretrial order in compliance with the district judge's individual rules, signed by counsel for each party, prior to the conference. Ordered by Magistrate Judge Arlene R. Lindsay on 12/9/2013. c/ecf (Imrie, Robert) (Entered: 12/09/2013)
105 Letter MOTION for pre motion conference on requesting leave to file motion for summary judgment by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Levine, Alan) (Entered: 12/09/2013)
106 Letter response to pre−motion letter by Town of Oyster Bay, John Venditto(Town Supervisor of the Town of Oyster Bay) (Sinnreich, Jonathan) (Entered: 12/16/2013)
107 ORDER reversing 96 ; denying 105 Motion for Pre Motion Conference. For the reasons set forth in the attached Order, Magistrate Judge Lindsay's decision to grant plaintiffs' motion to quash defendants' third party subpoenas is reversed. This action is respectfully referred to Magistrate Judge Lindsay for all remaining pre−trial supervision. Also before the Court is plaintiffs' request for a pre−motion conference on its anticipated motion for summary judgment seeking a permanent injunction of the Ordinance at issue. Plaintiffs' request is denied with the right to renew at the close of discovery. Ordered by Judge Denis R. Hurley on 1/16/2014. (Kaley, Regina) (Entered: 01/16/2014)
108 Joint MOTION for Extension of Time to File Joint Pre−Trial Order by Centro De La Comunidad Hispana De Locust Valley, The Workplace Project. (Levine, Alan) (Entered: 01/16/2014)
ORDER re 108 : The scheduling order is modified as follows: All discovery, inclusive of expert discovery, to be concluded by April 18, 2014. Any party planning on making a dispositive motion must take the first step in the motion process by May 9, 2014. The January 21, 2014 final conference is adjourned to May 29, 2014 at 2:30 p.m. The parties are to electronically file a joint proposed pretrial order in compliance with the district judge's individual rules, signed by counsel for each party, prior to the conference. Ordered by Magistrate Judge Arlene R. Lindsay on 1/17/2014. c/ecf (Imrie, Robert) (Entered: 01/17/2014)