Case 1:16-cv-03455-GBD Document 1 Filed 05/10/16 Page 1 of 37

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CHRISTOPHER TROWBRIDGE, MICHAEL TORRES, RONNIE PAGAN, and JUAN ORTIZ, individually and on behalf of a class of all others similarly situated;
Plaintiffs,
– against –
ANDREW CUOMO, in his official capacity as the Governor of the State of New York; JANET DIFIORE, in her official capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System; and LAWRENCE MARKS, in his official capacity as Chief Administrative Judge of the Unified Court System;
Defendants.

Civil Action No. _1_6_c_v_3_455 COMPLAINT [CLASS ACTION]

PRELIMINARY STATEMENT 1. Justice delayed is justice denied. The constitutional right to a trial—a speedy and public trial—is the foundation of our adversarial criminal justice system. The right to challenge the state’s evidence and confront witnesses in a meaningful and timely manner gives legal and moral legitimacy to the system as a whole. For people accused of misdemeanors in the Bronx, however, this right is illusory.1 Years of persistent delays in processing misdemeanor cases, court congestion, and case backlogs (collectively, “Court Delay”) in the New York City Criminal Court, Bronx County (“Bronx Criminal Court”) have fatally undermined the right to trial and the
1 For the purposes of this Complaint, the use of the term “misdemeanors” is intended to include all misdemeanors as well as non-criminal violations and infractions.
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right to a speedy trial for the tens of thousands of people charged with low-level offenses in the Bronx. The system more closely resembles punishment than due process.
2. Each day, hundreds of people arrive at Bronx Criminal Court to wait for their day in court. Appearances are not scheduled for a particular hour or window of time, so everyone has to arrive at the beginning of the day. Arrest warrants may be issued for latecomers. People sit in packed courtrooms for hours—sometimes all day—waiting for their cases to be called. They take the entire day off of work; they miss school and doctors’ appointments; they rely on neighbors to watch their kids. When their case is finally called and they stand before a judge, the appearance usually lasts less than a few minutes, and the case is perfunctorily adjourned for another date.
3. Adjournment after adjournment, people wait for hours to see a judge only to be told to come back yet another day. The months often turn into years. People’s lives are put on hold as their fate hangs in the balance. The process can feel interminable.
4. For Sarah Bello, it took 1,166 days and 33 court dates—30 of which were scheduled trial dates—before the charges against her were adjourned in contemplation of dismissal.2 For Joseph Bermudez, it took 1,258 days and 38 court dates before he could get his day in court, have a trial, and be acquitted. At least 16 times, both sides were ready for trial, but there were no misdemeanor trial courtrooms (“Trial Parts”) available. John Carridice waited 1,009 days and had 20 court dates before he finally got a trial and was acquitted. Though their cases were ultimately resolved in their favor, the damage inflicted by Court Delay—jobs and opportunities lost, lives disrupted, and relationships strained—had already been done.
2 Ms. Bello’s name has been changed for the purposes of this complaint in order to protect her privacy as a victim of domestic violence.
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5. These experiences are commonplace in Bronx Criminal Court. At the beginning of 2016, there were 2,378 misdemeanor cases that had been pending for over 365 days, and 538 cases that had been pending for over two years.3 In 2014, it took twice as long to resolve an average misdemeanor case in Bronx Criminal Court’s All Purpose Parts (“AP Parts”)—the highvolume courtrooms that handle pre-trial misdemeanor matters—as contemplated by the New York State Unified Court System (the “New York Courts”) guidelines.
6. There are hundreds of misdemeanor cases scheduled for trial each week in which both sides are ready to proceed. But trials scarcely happen. The Trial Parts often sit locked and empty. In 2015, there were over 45,000 misdemeanor arraignments in the Bronx, but only 98 misdemeanor trials. In an average week in Bronx Criminal Court, more than 800 new misdemeanor cases enter the system, but fewer than two are resolved by trial.
7. The few people who manage to exercise their right to trial in misdemeanor cases wait on average 642 days for a non-jury bench trial and an astonishing 827 days for a jury trial. For many, the wait is far longer.
8. New York’s speedy trial statute requires prosecutors to be ready for trial within 90 days of arraignment for class A misdemeanors, 60 days for class B misdemeanors, and 30 days for non-criminal violations. Time waiting for trial is not counted against these statutory limits, however, if it is attributable to Court Delay, such as when there are no Trial Parts 3 Unless otherwise noted, the statistics cited in this Complaint are drawn from: Criminal Court of City of N.Y., N.Y. State Unified Court Sys., Bronx County Misdemeanor Activity Report: Full Year 2015 (2015); Criminal Court of City of N.Y., Annual Report: 2014 (2015), available at https://www.nycourts.gov/COURTS/nyc/criminal/cc_annl_rpt_2014.pdf; N.Y. State Unified Court Sys., The Bronx Criminal Division: Merger After Five Years (2009) [hereinafter “Merger Report”], available at https://www.nycourts.gov/publications/pdfs/BronxReport11-09.pdf; and Press Release, N.Y. State Unified Court Sys., State Court System Reports Dramatic Cut in Felony Case Inventory, Announces Plan to Slash the Borough’s Misdemeanor Backlog and Names New Bronx Appointment (Dec. 11, 2013) [hereinafter “Dec. 2013 Press Release”], available at http://www.nycourts.gov/press/pdfs/pr13_14a.pdf.
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available or when congested court calendars require extended adjournments between scheduled court dates. As a result, New York’s statutory speedy trial law is a functionally meaningless tool to ensure compliance with constitutional speedy trial mandates.
9. Court Delay corrupts every stage of a criminal case. From the inception of their cases at arraignment—confronted with the reality of Court Delay, and with little hope for a timely trial—many people charged with misdemeanors in the Bronx plead guilty in order to stem the ongoing costs associated with returning to court for months on end. They have no meaningful or timely opportunity to test the state’s evidence against them at trial or to vindicate other important constitutional rights, such as the right against unreasonable search and seizure, in pretrial evidentiary hearings. The inordinate delays, combined with the lack of trial capacity, make trials—and certainly speedy trials—functionally unattainable in Bronx Criminal Court.
10. Bronx Criminal Court is an outlier. Manhattan does not have these delays. Brooklyn does not have these delays. Queens does not have these delays. Staten Island does not have these delays. Only the Bronx, the poorest county in New York State, and the borough with the highest percentage of residents who are people of color, experiences such severe Court Delay. Indeed, in Bronx Criminal Court, people of color make up 95% of all misdemeanor arraignments, compared to approximately 85% in Manhattan, Brooklyn, and Queens, and 56% in Staten Island.4
11. And despite having fewer misdemeanor case filings than either Brooklyn or Manhattan, Bronx Criminal Court has consistently had more misdemeanors pending over one year than all of the other boroughs combined.
4 N.Y. State Div. of Criminal Justice Servs., New York City: Misdemeanor Arraignments in Criminal Court (Apr. 21, 2016) (electronic spreadsheet).
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12. Systemic Court Delay not only undermines the legal and moral legitimacy of the criminal justice system, but it also acts as a significant obstacle to economic opportunity and social stability for people accused of misdemeanors in the Bronx, their families, and their communities. Thousands of people accused of misdemeanors in the Bronx must endure significant burdens and costs as a result of their unnecessarily prolonged prosecutions, in the form of missed work, lost wages, school absences, rescheduled medical appointments, childcare emergencies, strained professional and familial relationships, and psychological stress.
13. Court Delay in Bronx Criminal Court also negatively affects every institutional stakeholder in the Bronx criminal justice system—prosecutors, the defense bar, and local city government alike. The Bronx District Attorney has lamented the drain on already scarce resources caused by Court Delay, and the New York City Mayor’s Office of Criminal Justice has identified Court Delay in Bronx Criminal Court as a serious problem. Court Delay serves no one’s interests.
14. In April 2013, former New York State Chief Judge Jonathan Lippman called Court Delay in the Bronx “intolerable” and “entirely unacceptable.”5 It is also unconstitutional.
15. Plaintiffs Christopher Trowbridge, Michael Torres, Ronnie Pagan, and Juan Ortiz (collectively, the “Named Plaintiffs”) bring this civil rights lawsuit on behalf of themselves and those similarly situated to remedy the violation of their rights secured by 42 U.S.C. § 1983 and the Sixth and Fourteenth Amendments to the United States Constitution.
5 William Glaberson, Faltering Courts, Mired in Delay, N.Y. Times, Apr. 13, 2013, http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-indelays.html.
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JURISDICTION AND VENUE 16. This action is authorized by 42 U.S.C. § 1983. Subject matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343(a)(3) and (4) because this action seeks redress for violations of Plaintiffs’ rights under the Sixth and Fourteenth Amendments to the United States Constitution. 17. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper. Rule 65 of the Federal Rules of Civil Procedure authorizes injunctive relief. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988. 18. Venue is proper in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1391(b), because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the Southern District of New York.
PARTIES 19. The Plaintiff Class consists of all persons who will be prosecuted in Bronx Criminal Court with a misdemeanor or lesser offense as the top charge. 20. Plaintiffs Trowbridge, Torres, and Ortiz are all residents of the Bronx. Plaintiff Pagan is a resident of Manhattan. 21. Defendant Andrew Cuomo is the Governor of the State of New York (the “Governor”) and, as such, is the chief law enforcement officer of New York State. In that capacity, he is responsible for enforcing the Sixth and Fourteenth Amendments to the United States Constitution and state law as they apply to the provision of judicial resources. The Governor is sued in his official capacity.
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22. Defendant Janet DiFiore is the Chief Judge of the New York State Court of Appeals, Chief Judicial Officer of the New York Courts, and Chair of the Administrative Board of the New York Courts (the “Chief Judge”), with offices at 25 Beaver Street, New York, New York. The Chief Judge is responsible for the establishment and enforcement of the administrative polices of the New York Courts, including Bronx Criminal Court, and for the courts’ compliance with law. The Chief Judge is sued in her official capacity.
23. Defendant Lawrence Marks is Chief Administrator and Chief Administrative Judge of the New York Courts (the “Chief Administrative Judge”), with offices at 25 Beaver Street, New York, New York. The Chief Administrator is responsible, on behalf of the Chief Judge, for supervising the administration and operation of the New York Courts. The Chief Administrative Judge is sued in his official capacity.6
CLASS ALLEGATIONS 24. The Plaintiff Class consists of all persons who will be prosecuted in Bronx Criminal Court with a misdemeanor or lesser offense as the top charge. 25. This action is properly maintainable as a class action because all four requirements of Rule 23(a) of the Federal Rules of Civil Procedure are satisfied: 26. Numerosity: The members of the class are sufficiently numerous that joinder of all members is impracticable. In 2015, there were 45,929 people arraigned on misdemeanor charges 6 The Chief Judge is required by § 249 of the New York Judiciary Law to establish a system of “internal control” for the New York Courts, defined as “a process that integrates the activities, plans . . . systems, resources and efforts . . . and that is designed to provide reasonable assurance that the organization will achieve its objectives and mission. The objectives of an internal control system include . . . promoting the effectiveness and efficiency of operations.” The Chief Judge, in turn, delegates much of his or her authority to the Chief Administrative Judge, who is responsible for the administration and operation of the New York Court System. N.Y. Jud. Law § 212. The Chief Administrative Judge has supervisory authority over all of the New York Court System’s administrative activities, including the temporary reassignment of judges and the formation of the courts. 22 N.Y. Comp. Codes R. & Regs. § 80.1.
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in the Bronx. At the end of 2015, there were 12,445 misdemeanor cases pending in Bronx Criminal Court. Joinder is also impracticable because many potential members of the class are not aware that their rights will be violated and that they have the right to seek redress in court. Further, putative class members are unknown and, therefore, cannot practically be joined. There is no appropriate avenue for the protection of these potential class members’ rights other than a class action.
27. Commonality: There are questions of law and fact common to the class. These common questions include, but are not limited to: (a) whether there is a policy, practice, and/or custom of unlawful Court Delay in Bronx Criminal Court; (b) whether unlawful Court Delay in Bronx Criminal Court deprives people accused of misdemeanors and/or lesser offenses in the Bronx of their right to due process under the Fourteenth Amendment to the United States Constitution; (c) whether unlawful Court Delay in Bronx Criminal Court deprives people accused of misdemeanors in the Bronx of their right to a trial or right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution; and (d) whether the Chief Judge, Chief Administrative Judge, and the Governor (collectively “Defendants”) have encouraged, sanctioned, and/or failed to rectify the widespread policy, practice, and/or custom of unlawful Court Delay in Bronx Criminal Court, and whether such acts and/or omissions have caused the constitutional violations.
28. Typicality: The claims alleged by the Named Plaintiffs are typical of the class they seek to represent, as they all allege violations of due process and the right to a speedy trial related to the policy, practice, and/or custom of unlawful Court Delay in Bronx Criminal Court. The legal theories under which the Named Plaintiffs seek declaratory and injunctive relief are the
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same or similar to those on which all members of the class will rely, and the harms suffered by the Named Plaintiffs are typical of the harms suffered by all members of the class.
29. Adequacy of Representation: The Named Plaintiffs are adequate class representatives. They are extremely likely to be arrested, charged, and prosecuted for misdemeanors or lesser offenses in Bronx Criminal Court and will suffer harm from the unlawful denial of due process and the right to a speedy trial caused by Court Delay. The Named Plaintiffs will fairly and adequately protect the interests of the other class members. Plaintiffs’ counsel includes attorneys from The Bronx Defenders, Emery Celli Brinckerhoff & Abady LLP, and Morrison & Foerster LLP—all of whom are experienced in federal class action litigation, including constitutional and civil rights litigation, and have the resources necessary to pursue this litigation.
30. This action is properly maintainable as a class action under Rule 23(b)(1)(a) of the Federal Rules of Civil Procedure because prosecuting separate actions by or against individual class members would create a risk of adjudications with respect to individual class members that would be inconsistent or varying and, thus, establish incompatible standards of conduct for the parties opposing the class.
31. This action is also properly maintainable as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure because Defendants have acted and/or refused to act on grounds generally applicable to the class, thereby rendering final relief appropriate with respect to the Named Plaintiffs and the class as a whole. The class members are entitled to relief to end Defendants’ policy, practice, and/or custom of unconstitutional Court Delay in Bronx Criminal Court.
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FACTS I. The Life Cycle of a Typical Misdemeanor Case in the Bronx
32. All misdemeanor prosecutions begin with an arraignment in one of Bronx Criminal Court’s arraignment courtrooms. At the arraignment, defense counsel is assigned and a judge makes a bail determination. The District Attorney also may make a plea bargain offer. Many people opt to resolve their cases at arraignment through a negotiated disposition.
33. Cases that are not resolved at arraignment, however, are adjourned to an AP Part for corroboration of the misdemeanor complaint (“conversion”), for motion practice, or for trial in those cases where the complaint has been converted and motion practice is waived.7 Motion practice in misdemeanor cases is largely a rote, pro forma exercise; hearings to determine the constitutionality of searches, seizures, and identification procedures are granted as a matter of course. The hearings themselves, however, are not conducted until much later, if ever.
34. Once motion practice is completed, the case is scheduled for “hearings and trial” (“Trial Date”). On Trial Dates, the judge asks if the parties are ready for trial. If either side is not ready, the judge adjourns the case and sets another Trial Date, usually four to six weeks in the future. If both sides are ready, the judge ascertains whether any Trial Parts are available. When there are no Trial Parts available, as is most often the case, the parties are told, “There are no parts,” and the case is adjourned.
35. Even in the rare instance when a Trial Part is available and a case is sent out for trial, a trial typically will not commence. A case sent to a Trial Part may be further postponed for myriad reasons. For example, given the small percentage of trial-ready cases that are sent out to trial and the lack of predictability, key prosecution witnesses—often, police officers— 7 Cases may also be adjourned to a small number of specialized parts, such as the Domestic Violence Misdemeanor Part.
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frequently are not available. When prosecution witnesses fail to appear, cases are adjourned for yet another Trial Date, and fully staffed Trial Parts sit idle.
36. A judge may excuse a person charged with a misdemeanor from personally appearing in court or make his or her appearance contingent on the prosecutor’s trial readiness and the availability of a Trial Part. As a general rule, however, a person is required to appear in court on each and every court date, no matter how old the case is, no matter how reliably the person has shown up for court in the past, and regardless of the fact that no law mandates a personal appearance at every court date.
37. For every court date they must attend, for whatever purpose, people are told to be in the courtroom at 9:30 a.m., though there may be more than 100 cases on the calendar in any given courtroom. Consequently, a person accused of a misdemeanor frequently arrives at court at 9:00 a.m. and has to wait, sometimes until 4:30 p.m., for his or her perfunctory court appearance. II. Individual Examples of Court Delay
38. The experiences of Sarah Bello, Joseph Bermudez, and John Carridice are emblematic of the problem of Court Delay in Bronx Criminal Court. Their experiences are the norm for people accused of misdemeanors in the Bronx, not the exception. Sarah Bello
39. Sarah Bello is a 40-year-old single mother of four, originally from Ghana. 40. Ms. Bello came to the United States in 2003. All four of her children are United States citizens. In 2008, Ms. Bello married a United States citizen. Once they were married, however, Ms. Bello’s husband became abusive and the two later divorced.
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41. Ms. Bello subsequently filed a petition pursuant to the Violence Against Women Act (VAWA) with the United States Citizenship and Immigration Services, seeking eligibility for legal permanent status as a victim of domestic violence. Ms. Bello’s VAWA petition was granted, and on August 23, 2011, she applied for legal permanent residency in the United States. An interview was scheduled with immigration officials for September 16, 2013 in order to determine Ms. Bello’s final eligibility for adjustment of status.
42. On September 9, 2012, Ms. Bello had a dispute with an acquaintance over payment for a used car. She was arrested and prosecuted for misdemeanor assault in Bronx Criminal Court. Ms. Bello—who has no criminal record—adamantly denied the charges.
43. Ms. Bello had 33 court dates, including 30 scheduled Trial Dates, before she ultimately accepted an adjournment in contemplation of dismissal, a disposition requiring no admission of guilt and resulting in a full dismissal of the charges, on November 19, 2015—1,166 days after her initial arraignment.
44. On nine scheduled Trial Dates, both parties were prepared to go to trial, but there were no Trial Parts available.
45. On 12 scheduled Trial Dates, the prosecution stated not ready for trial and requested adjournments.
46. Due to Court Delay, Ms. Bello’s misdemeanor case was still pending at the time of her immigration interview on September 13, 2013, more than a year after her initial arraignment. The Adjustment Officer held Ms. Bello’s application for legal permanent residency in abeyance pending the outcome of her criminal case in Bronx Criminal Court.
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47. On July 7, 2015, Ms. Bello’s application was denied because her case in the Bronx was still pending, and she was unable to provide immigration officials with proof of a final disposition.
48. Court Delay also threatened Ms. Bello’s livelihood and her ability to provide for her children. For many years, Ms. Bello has worked as a home health aide, a position that requires her to be licensed with the state of New Jersey. In September 2013, Ms. Bello learned that the New Jersey Board of Nursing could not process her application to renew her employment license because of her open criminal case in the Bronx. Because she was unable to provide a final disposition showing that the case had been resolved, Ms. Bello was suspended from her job working as a home health aide with a senior-care organization. Ms. Bello was out of work for a number of months. Once the case was resolved, she was able to get her license reinstated. Joseph Bermudez
49. Joseph Bermudez is a 36-year-old Latino man, a married father of one, and a lifelong resident of the Bronx. He works as a warehouse manager at an appliance company.
50. On July 7, 2012, Mr. Bermudez was involved in a traffic accident and taken to a police precinct, where he agreed to take a blood alcohol test. Even though his blood alcohol level was below the legal limit, he was arrested for drunk driving. He was arraigned in Bronx Criminal Court on July 8, 2012.
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51. Mr. Bermudez had 38 scheduled court dates, including 28 Trial Dates, before his case was sent out to trial in December 2015—1,255 days after his initial arraignment.8 He was acquitted of all charges.
52. On at least 16 Trial Dates, both parties were ready to proceed to trial, but there were no Trial Parts available.
53. On five Trial Dates, the prosecution stated not ready for trial and requested adjournments.
54. Mr. Bermudez repeatedly rejected non-criminal, non-incarceratory plea offers and requested a trial.
55. Mr. Bermudez was ultimately acquitted after a trial that took three days. John Carridice
56. John Carridice is a 38-year-old father of four who resides in the Bronx. He has an associate’s degree and is working toward a bachelor’s degree in social work and psychology, with the aim of becoming a children’s therapist.
57. On September 7, 2012, Mr. Carridice saw two young men about to fight on the street and intervened to separate the men. Mr. Carridice was trying to deescalate the situation when police officers arrived and placed Mr. Carridice in handcuffs. After spending two days in jail, Mr. Carridice was arraigned in Bronx Criminal Court on September 9, 2012 and charged with resisting arrest, unlawful assembly, disorderly conduct, and harassment, all misdemeanors or non-criminal violations.
8 While Mr. Bermudez’s driver license was not suspended during the pendency of his case, many people charged with drunk driving in the Bronx lose their privilege to drive for the entirety of their pending misdemeanor case. As a result, in the Bronx, people often lose their driving privileges for two or three years waiting for a trial, despite the fact that the maximum license suspension allowed after a misdemeanor conviction is one year.
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58. There were 20 scheduled court dates in Mr. Carridice’s case, including 19 Trial Dates, before Mr. Carridice’s case was sent out to trial in June 2015—1,003 days after his arraignment. He was ultimately acquitted of all charges on June 15, 2015.
59. On ten Trial Dates, both parties were ready to proceed to trial, but there were no Trial Parts available.
60. On six Trial Dates, the prosecution stated not ready for trial and requested adjournments.
61. Mr. Carridice worked for a children’s aid organization and, as a result of the pending case, was given limited hours at work and was prevented from working around children. He was also denied other full-time jobs because of the open misdemeanor case.
62. Mr. Carridice was also pursuing an associate’s degree in psychology from Bronx Community College. The Court Delay in his case severely disrupted Mr. Carridice’s studies. On one occasion, Mr. Carridice was forced to take an important midterm exam two weeks early in order to accommodate a scheduled Trial Date. As a result, Mr. Carridice did not have as much time as he needed to study, his performance on the exam suffered, and his GPA fell below the cutoff for an important scholarship. On the Trial Date that caused the disruption, the case was perfunctorily adjourned for another date. III. The Named Plaintiffs Michael Torres
63. Plaintiff Michael Torres is a 43-year-old Latino man who lives in the Bronx with his wife and two stepdaughters. For the past nine years, Mr. Torres has worked in the construction industry in multiple capacities. He currently works as a glazier, installing windows and aluminum panels on high-rise buildings being constructed across New York City.
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64. On September 26, 2011, Mr. Torres was on his way to a job interview when two police officers stopped and searched him without justification or consent. A small amount of marijuana was recovered from inside a sweatshirt he was carrying. After spending a full night in police custody, Mr. Torres was arraigned in Bronx Criminal Court on September 27, 2011 and charged with misdemeanor possession of marijuana.
65. In all, there were 14 scheduled court dates in Mr. Torres’ case, including ten Trial Dates.
66. On seven of the scheduled Trial Dates, the prosecution stated not ready for trial and requested adjournments.
67. On October 9, 2013—743 days after Mr. Torres’ arraignment—counsel for Mr. Torres filed a motion to dismiss on statutory speedy trial grounds. The motion was denied on November 22, 2013. Mr. Torres could not appeal that ruling because his case was ultimately dismissed and there were no grounds for an interlocutory appeal.
68. At a pretrial hearing on February 20, 2014—877 days after his initial arraignment—the police officer who had arrested Mr. Torres testified that he had no independent recollection of the circumstances leading up to Mr. Torres’ arrest, and the case was dismissed.
69. Mr. Torres was required to be in court on each and every one of his 14 court dates. He sometimes waited as long as six hours before his case was perfunctorily adjourned. During periods of time when Mr. Torres was employed, he was forced to take an entire day off work, losing pay and frustrating his supervisor.
70. In 2013, Mr. Torres was let go from a job because of the number of days he had been forced to take off to appear in court.
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71. The denial of Mr. Torres’s rights to due process and a speedy trial took a serious emotional, mental, and financial toll on Mr. Torres and his family. In addition to the lost wages and employment, Mr. Torres continued to suffer anxiety about keeping his job. The problems at work spilled over into his family life, causing significant tension between Mr. Torres and his wife.
72. Mr. Torres is likely to be arrested, prosecuted, and subjected to unconstitutional Court Delay in Bronx Criminal Court again. Mr. Torres’ job as a glazier requires Mr. Torres to use a folding knife to cut away loose sealant and ensure proper installation of large glass windows. Mr. Torres must carry his own knife to and from work on a daily basis. Although this folding knife is legal and found in home improvement and camping supply stores, police officers regularly arrest, and the Office of the District Attorney regularly prosecutes, people—primarily people of color in low-income communities like the South Bronx—for possession of such knives under the law prohibiting possession of gravity knives. This practice is well documented and widespread.9 Indeed, Mr. Torres was arrested and prosecuted under the gravity knife statute for possessing a lawful folding knife on at least one prior occasion in Bronx Criminal Court in October 2013.
73. Mr. Torres is also likely to be arrested and prosecuted for unlicensed driving as a result of a license suspension he received in Florida and the subsequent suspension of his privilege to drive in New York. Mr. Torres has been unable to travel to Florida to clear the license suspension and expects that his license will remain suspended for the foreseeable future. Despite having a suspended license for the past six years, Mr. Torres must continue to drive on
9 See Jon Campbell, How a ‘50s-Era New York Knife Law Has Landed Thousands in Jail, The Village Voice, Oct. 7, 2014, http://www.villagevoice.com/news/how-a-50s-era-new-york-knifelaw-has-landed-thousands-in-jail-6662589.
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occasion in order to get to remote job sites not served by public transportation. Mr. Torres has already been prosecuted for unlicensed driving on at least two occasions in the past. Ronnie Pagan
74. Ronnie Pagan is a 37-year-old Latino man who lives in Manhattan. 75. Mr. Pagan was unlawfully stopped and searched in a public park on the evening of February 15, 2014, and charged with misdemeanor drug possession, obstruction of governmental administration, and trespass. Mr. Pagan spent two days in jail before he was arraigned in Bronx Criminal Court on February 17, 2014. From the very beginning of his case, he was determined to seek a trial. 76. In all, Mr. Pagan’s case had 18 scheduled court dates, including 16 Trial Dates. 77. On 11 of Mr. Pagan’s Trial Dates, both parties were prepared to begin trial, but there were no Trial Parts available. 78. On three Trial Dates, the prosecution stated not ready for trial and requested adjournments. 79. On March 21, 2016, 763 days after his arraignment, Mr. Pagan was unable to deal with the stress of having an open misdemeanor case any longer; he reluctantly accepted an adjournment in contemplation of dismissal in order to bring an end to the case. 80. Mr. Pagan is likely to be arrested and prosecuted in Bronx Criminal Court again. Mr. Pagan’s girlfriend and their four children live in a New York City Housing Authority (NYCHA) apartment building in the South Bronx. Mr. Pagan lives with his mother in Manhattan, but regularly visits his girlfriend’s building in the Bronx in order to care for his children. Mr. Pagan is routinely stopped and—because his identification shows a Manhattan home address—he has on a number of occasions been arrested by police officers on suspicion of
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trespass in his girlfriend’s building. The City of New York’s trespass enforcement practices in NYCHA residences have been well documented and are currently under the review of a federal monitor. Because Mr. Pagan continues to visit his girlfriend and their children in a Bronx NYCHA residence, he will likely be arrested and subjected to unconstitutional Court Delay in Bronx Criminal Court again. Juan Ortiz
81. Mr. Ortiz is a 61-year-old Latino man who lives in the Bronx. In the early 2000’s, Mr. Ortiz was diagnosed with colon cancer, for which he underwent surgery and received nine months of chemotherapy. Mr. Ortiz’s illness and the subsequent treatment made it difficult for Mr. Ortiz to work and ultimately led to him losing his job of 12 years. The anxiety and stress Mr. Ortiz experienced due to his medical and financial condition gave rise to a number of psychiatric issues for which Mr. Ortiz sought psychiatric treatment.
82. From 2012 through 2015, Mr. Ortiz was prescribed multiple medications to treat his psychiatric condition. The medications caused Mr. Ortiz to experience episodes of severe disorientation. During these episodes, Mr. Ortiz would be gripped by a compulsion to take items from stores without paying. Between December 2012 and March 2015, Mr. Ortiz was arrested and prosecuted 14 times for the misdemeanors of petit larceny and/or possession of stolen goods in Bronx Criminal Court. He was ultimately given a jail sentence of one year and was released in September 2015.
83. Mr. Ortiz continues to struggle with the fallout from his fight with cancer and the attendant psychiatric issues. He and his care providers are still experimenting with different medications to try to identify one that mitigates his symptoms and alleviates his urge to shoplift. For the same reasons that Mr. Ortiz was arrested and prosecuted 14 times, he will likely be
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arrested and prosecuted in the Bronx again and subjected to unconstitutional Court Delay in Bronx Criminal Court. Christopher Trowbridge
84. Christopher Trowbridge is a 42-year-old African-American man who lives in the South Bronx. He has struggled with heroin addiction for the past 18 years and has spent multiple periods in detox and rehabilitation facilities.
85. Mr. Trowbridge’s struggle with addiction has also led to multiple arrests and prosecutions in Bronx Criminal Court. He has been prosecuted in Bronx Criminal Court at least six times since 2008.
86. Mr. Trowbridge continues to deal with the challenges of a long-term drug addiction. He has lived through the cycle of recovery and relapse multiple times, and will likely be arrested and prosecuted in the Bronx again and subjected to unconstitutional Court Delay in Bronx Criminal Court. IV. Systemic Violations of the Right to Trial and Speedy Trial in Bronx Criminal Court
87. The harm to the Named Plaintiffs and the putative class members directly results from a policy, pattern, and practice of excessive and unreasonable Court Delay that plagues Bronx Criminal Court; violates due process and the right to a speedy trial; and makes it virtually impossible for people accused of misdemeanor crimes in the Bronx to exercise their right to trial in a meaningful and timely manner. The Crushing Backlog of Misdemeanor Cases
88. Bronx Criminal Court has jurisdiction over all misdemeanor cases prosecuted in the Bronx. In 2014, there were 50,703 misdemeanor arraignments in Bronx Criminal Court, significantly fewer than the number of case filings in Manhattan (72,069), Brooklyn (67,343), or
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Queens (53,508). Yet, Bronx Criminal Court had 11,523 misdemeanor cases pending at the end of the year, compared to 10,596 in Brooklyn, 10,384 in Manhattan, and 8,043 in Queens.
89. In the past year, the number of misdemeanor cases pending in the Bronx has increased, even while the number of misdemeanor arraignments has decreased. In 2015, the number of misdemeanor arraignments in the Bronx fell to 45,929; by the end of the year, however, the number of pending misdemeanor cases had climbed to 12,445. Excessive and Unreasonable Systemic Delays in Processing Misdemeanor Cases
90. The Standards and Goals Guidelines for the Disposition of Criminal Cases issued by the New York Courts (“NY Court Standards”) are an administrative tool developed and disseminated by the judiciary in 2008 “to assist the courts at every level in monitoring the progress of cases through the criminal court system.”10 The NY Court Standards dictate that a misdemeanor case should reach final disposition within 90 days of arraignment.
91. The NY Court Standards are consistent with national standards. In 2011, The National Center for State Courts, the Conference of State Court Administrators, the Conference of Chief Justices, the American Bar Association House of Delegates, and the National Association for Court Management all adopted case disposition guidelines dictating that 90% of misdemeanor cases should be resolved within 90 days.11
92. In the Bronx, however, these guidelines are meaningless. At the end of 2015, the average age of misdemeanor cases pending in the Bronx was 219 days; over 64% of Bronx
10 Merger Report, supra note 3, at 31. 11 Richard Van Duizend, David C. Steelman & Lee Suskin, Nat’l Ctr. for State Courts, Model Time Standards for State Trial Courts (2011), available at http://www.ncsc.org/Services-andExperts/Technology-tools/~/media/Files/PDF/CourtMD/Model-Time-Standards-for-State-TrialCourts.ashx.
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Criminal Court’s pending cases exceeded NY Court Standards; and 19% of cases (2,378) were over 365 days old. There were 538 cases that had been pending for over two years.
93. In December 2013, the last time citywide comparative data was publicly available, the Bronx had more misdemeanors pending in excess of one year (2,106) than the four other boroughs of New York City combined—Brooklyn (657), Manhattan (594), Queens (331), and Staten Island (287). These numbers are even more telling when compared to the respective boroughs’ pending misdemeanor caseloads. In the Bronx, 14.5% of the pending cases were over a year old, compared to 4.9% in Manhattan, 5.3% in Brooklyn, and 4.1% in Queens.
94. In early 2014, the New York Courts created the Bronx Misdemeanor Standards & Goals Part (“MSG”), a specialized courtroom dedicated to processing the oldest misdemeanors in Bronx Criminal Court, presided over by the Supervising Judge of Bronx Criminal Court. By the end of 2015, there were 426 misdemeanor cases pending in MSG, with an average pending age of 827 days. That was an increase of 84 days from the previous year, when the average pending age of cases in MSG was 743 days, and an increase of 264 days from the time MSG was founded, when the average age of cases pending in MSG was 563 days. The Failure to Ensure the Right to a Trial
95. Due to the policy, pattern, and practice of systemic Court Delay, cases cannot get resolved. Delay and congestion beget more delay and congestion as the number of pending cases competing for scarce resources increases. The longer a case is pending, the more likely it is that witnesses will become unavailable. The backlog increases caseloads for defense attorneys and prosecutors alike, and it is harder for everyone to do their jobs. For prosecutors, in particular, it becomes difficult to evaluate a case and make an appropriate plea bargain offer until the threat of a trial is imminent.
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96. In 2014, the average age of cases resolved in the AP Parts was 180 days, 100% longer than the 90 days prescribed by the NY Court Standards. By contrast, the average disposition age in Brooklyn was just 19% longer than the standard (107 days); in Queens, 22% longer than the standard (110 days); and in Manhattan, 41% longer than the standard (127 days).
97. Most significantly, the few misdemeanor defendants who are able to exercise their right to trial in the Bronx must wait on average 642 days for a non-jury bench trial and 827 days for a jury trial. The wait for a jury trial in the Bronx is 99% higher than in Manhattan (414 days), 66% higher than in Brooklyn (496 days), and 48% higher than in Queens (558 days).
98. The age of cases in Bronx Criminal Court is both a symptom and a cause of the failure to ensure the right to a trial for people accused of misdemeanors in the Bronx. As a 2009 report by the New York Courts found, a court’s “capacity to dispose of its cases flows directly from its ability to provide an imminent trial.”12 In Bronx Criminal Court, there are many thousands of misdemeanor cases scheduled for trial every four-week term. In that same period, there are, on average, fewer than eight trials.
99. Having more functioning Trial Parts at any given time would help ease Court Delay. The six misdemeanor Trial Parts in Bronx Criminal Court, however, regularly sit idle— often with the doors locked—unable to conduct trials for want of judges, clerks, court officers, or court reporters. According to Bronx Criminal Court’s own records, in 2015 the Trial Parts had judges assigned to them only 69% of the time (excluding court holidays).13
100. This figure, however, dramatically overstates the Court’s actual, current trial capacity. A significant percentage of the time that judges are assigned to Trial Parts, the courtrooms are actually closed. Even when Trial Parts are technically open, there is frequently 12 Merger Report, supra note 3, at 20. 13 Bronx Criminal Court, Schedules of Judges Assignments: Terms 1-13 (2015).
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no activity in the courtroom. As one reporter found, “many of the trial parts . . . were simply not open,” and “it is also unclear how it is determined when a trial part is in use: a judge told attorneys all trial parts were in use when a visit to one nearby found another judge sitting in an empty room.”14
101. In the overwhelming majority of cases scheduled for trial where both the prosecution and defense are ready to proceed, there are no Trial Parts available to conduct proceedings. Only a small percentage of cases are actually sent to Trial Parts, and an even smaller percentage actually commence proceedings. The remaining “trial-ready” cases are adjourned, only to repeat the exercise weeks or months later.
102. Most misdemeanor cases present few, if any, legal novelties or factual complexities. Often, the only witnesses are New York City police officers and the evidence consists of little more than the property, if any, recovered at the time of arrest. Trials, when they do occur, can often be conducted in a day, or even an afternoon. It is exceedingly rare that a misdemeanor trial lasts more than two or three days.
103. In 2015, however, there were only 98 misdemeanor trials in the Bronx, compared to 164 in 2014, representing an over 40% decrease year-over-year. V. New York’s Statutory Framework: For Prosecutors Only
104. The right to a speedy trial is codified in New York Criminal Procedure Law §§ 30.20 and 30.30. Section 30.20 mandates that “[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial.” In practice, the mechanism through which judges enforce the right to a speedy trial is § 30.30.
14 Catie Edmondson, Progress Elusive as Bronx DA Cruises Toward Reelection, Gotham Gazette, Aug. 11, 2015, http://www.gothamgazette.com/index.php/government/5845-progresselusive-as-bronx-da-cruises-toward-reelection.
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105. Although § 30.30 is generally referred to as New York’s “statutory speedy trial right,” it functions more as a “prosecutorial readiness rule.” This is by design.
106. Section 30.30 requires prosecutors to be ready for trial within 90 days of arraignment for A misdemeanors, 60 days for B misdemeanors, and 30 days for non-criminal violations (the “§ 30.30 Time Limits”).
107. Section 30.30 lays out clear substantive guidelines for judicial decisionmaking: §§ 30.30(1)(b)-(d) set forth the § 30.30 Time Limits; § 30.30(3) exempts certain types of cases from § 30.30 analysis; § 30.30(4) sets out time periods to be excluded from a court’s calculation of statutory speedy trial time; and § 30.30(5) creates special rules for specific circumstances (such as when felonies are reduced to misdemeanors). The remedy for a violation of § 30.30 is not discretionary: a court must dismiss a criminal case when the prosecution is not ready for trial within the § 30.30 Time Limits.
108. Section 30.30 is the product of a specific historical moment. In 1971, the Second Circuit, sitting en banc, expressed alarm that “there were 2,899 persons accused of felony in New York State who had been held in jail three months or more awaiting disposition of the charges against them,” and urged the state to “fashion a rule which will require standards of performance designed to guarantee speedy trials in state cases.” U.S. ex rel. Frizer v. McMann, 437 F.2d 1312, 1314, 1316 (2d Cir. 1971).
109. The Administrative Board, the administrative-policy arm of the New York Courts, proposed rules that would have required, among other things, dismissal of any criminal prosecution that was not brought to trial within six months.15
15 Report of the Administrative Board of the Judicial Conference of the State of New York (1972).
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110. In response to a concern that the administrative rules might cause a “legalized jailbreak,” the State District Attorneys Association proposed § 30.30, a prosecutorial readiness rule rather than a speedy trial rule.16 It was passed three days before the Administrative Board’s proposal was to become effective, preempting the proposed six-month speedy trial rule.
111. As a result, statutory speedy trial time accrues only when the prosecution is responsible for the delay in the proceedings. Section 30.30 excludes from statutory speedy trial calculations delays due to Court Delay, such as when there are no Trial Parts available or when congested court calendars require extended adjournments between scheduled trial dates.
112. It is common practice for prosecutors in Bronx Criminal Court to state “not ready” for trial and request short adjournments, often for one week. Because of pervasive Court Delay, however, cases are routinely adjourned for one to two months at a time. In such circumstances, only the requested adjournment, rather than the actual adjournment, is charged to the § 30.30 Time Limits.
113. Moreover, when both the prosecution and defense counsel state “ready” to begin trial, but there are no judges, court staff, or courtrooms available to commence trial, cases are regularly adjourned for weeks or months at a time. None of that time is charged against the § 30.30 Time Limits.
114. This dynamic results in cases stretching out long past the time contemplated by the § 30.30 Time Limits and the NY Court Standards. Cases linger on the docket for years on end, adjourned repeatedly for trial, while only a small fraction of the time is charged against the § 30.30 Time Limits. And because Trial Parts are so rarely available, prosecutors’ actual trial readiness is rarely tested.
16 Francis X. Clines, Bill Would Slow Fast-Trial Order, N.Y. Times, Feb. 7, 1972.
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115. Both supporters and opponents of § 30.30 at the time of its enactment recognized its limitations as a mechanism to ensure the right to a speedy trial. Governor Rockefeller, who supported the passage of § 30.30, acknowledged that “without substantial modernization of our court system, without efficient case processing methods, and centralized court management and the necessary resources for both the courts and the components of the criminal justice system whose activities bear importantly on court operations, [§ 30.30] will not guarantee prompt trials or provide justice in the full and true sense of the word.”17 His words have proved prophetic. Another senator admitted, “I am voting for this bill very reluctantly because it is only a stopgap measure. This is not justice. This is not the kind of administration that is going to restore the confidence of the people in the courts.”18 VI. Defendants’ Failure to Remedy Known Violations
116. Defendants in this case have long been aware of the systemic and pervasive Court Delay in Bronx Criminal Court and its effect on due process, the right to trial, and the right to a speedy trial. Yet, they have repeatedly failed to remedy the violations.
117. For example, in a 2009 public report, the New York Courts recognized the need to expand trial capacity in the Bronx, recommending, in part, an increase in trial capacity through the assignment of additional judges and court staff.19
118. From 2009 through 2015, the New York Courts absorbed nearly $400 million in increased costs, while its budget increased only $27.5 million.20 During this time, the New York
17 Governor’s Approval Memorandum at 2, Bill Jacket, L. 1972, ch. 184. 18 N.Y. Senate Debate on Assembly Bill A10687-A, at 19 (1972) (statement of Sen. Bloom). 19 The study found that “for every additional trial part added, an average of 490 additional dispositions are reached, either by trial or by plea in the trial part or by plea in a motion/conference part.” Merger Report, supra note 3, at 20. 20 See Report in Support of the Judiciary’s 2015-2016 Budget Request, N.Y.C. Bar Ass’n 1 (Feb. 2015), http://www2.nycbar.org/pdf/report/uploads/20072866-ReportinSupportoftheJudiciarys
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Courts lost 2,000 employees.21 Former Chief Judge Lippman predicted that the failure of the
budget to keep up with costs would “have a tremendous impact on the system. At a minimum, [we are] going to see delays in the administration of justice, without question.”22
119. That is exactly what has happened. As described by former Chief Administrative
Judge Gail Prudenti, “[t]he substantial reduction in our workforce has depleted back-office staff,
with resulting delays in processing court documents, frustrating the timely disposition of cases.
In many courthouses, the loss of court officers and other courtroom staff has made it increasingly
difficult to staff all court parts. Back-office employees have at times been redeployed to
courtroom duties, causing further delays in the processing of documents, or officers and
courtroom clerks are shared between courtrooms, causing delays in the opening of court parts
until the required courtroom team is assembled. Reduced staffing is causing delays in trials and in deciding motions.”23 Another former Chief Administrative Judge, Ann Pfau, had a similar
assessment: “We know [the budget cuts are] having an impact . . . People are waiting longer to get to trial, and there are fewer trials.”24 Former New York City Criminal Court Administrative
Judge Barry Kamins bemoaned that “we simply don’t physically, economically have the resources to get by.”25 Both Judge Prudenti and Defendant Chief Administrative Judge Marks,
then serving as First Deputy Chief Administrative Judge, warned that “[a]fter five years of
2015-2016BudgetRequest.pdf [hereinafter “N.Y.C. Bar 2015-2016 Report”]. 21 See id. at 2. 22 Thomas Kaplan, Chief Judge Says Deal Will Require Hundreds of Layoffs in Court System, N.Y. Times, Mar. 28, 2011, http://www.nytimes.com/2011/03/29/nyregion/29cuts.html. 23 Jonathan Lippman et al., New York State Unified Court System Budget: Fiscal Year 20142015, at iii (2013), available at https://www.nycourts.gov/admin/financialops/BGT14-15/201415-Budget.pdf. 24 John Caher & Andrew Keshner, Deep Overtime Cuts Bring Delay, Rethinking of Case Presentation, N.Y.L.J., Nov. 28, 2011. 25 Alice Brennan, Right to a Speedy Trial? This Innocent Teenager Waited 3 Years in Jail, Fusion, Apr. 28, 2014, http://fusion.net/story/5419/right-to-a-speedy-trial-this-innocent-teenagerwaited-3-years-in-jail.
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essentially flat budgets from 2009-10 to 2013-14,”26 the Judiciary would no longer be able to “meet its constitutional mission” without additional funding.27
120. In April 2013, former Chief Judge Jonathan Lippman publicly acknowledged the
“glaring problems” in the Bronx associated with Court Delay that date back “as long as [he] can remember,” referring to Court Delay in the Bronx as “intolerable” and “entirely unacceptable.”28
121. In December 2013, the New York Courts explicitly acknowledged the widespread
Court Delay in Bronx Criminal Court and listed as factors contributing to the problem “a large
misdemeanor inventory” and “insufficient trial capacity, exacerbated by a shortage of judges to consistently preside over jury trial parts.”29
122. A February 2015 report by the New York City Bar Association affirmed that the
failure to fund properly the New York City Criminal Court, of which Bronx Criminal Court is a
part, has resulted in a shortage of judicial resources across all five of New York City’s boroughs:
“In Criminal Court, too few court officers, clerical staff, and reporters results in the closure of
trial parts at the last moment. Often there are available judges who are precluded from presiding
over their parts. Such conditions cause delays in trials, including those for incarcerated individuals.”30
123. In response to these concerns, and to a request from the judiciary for a 2.7% 26 See Letter from A. Gail Prudenti to Andrew M. Cuomo (Dec. 1, 2014), in Jonathan Lipmann et al., New York State Unified Court System Budget: Fiscal Year 2015-2016 (2014), available at http://www.nycourts.gov/admin/financialops/BGT15-16/2015-16-UCS-BUDGET.pdf. 27 See Joint Legislative Hearing on the 2014-2015 Judiciary Budget: Remarks of Chief Administrative Judge A. Gail Prudenti, N.Y. State Assembly 1 (Feb. 5, 2014), http://assembly.state.ny.us/write/upload/files/testimony/20140205/20140205-PublicProtectionPrudenti.pdf; see also Report in Support of the Judiciary’s 2014-2015 Budget Request, N.Y.C. Bar Ass’n (Feb. 2014), http://www2.nycbar.org/pdf/report/uploads /2014JudiciaryBudgetJudicialAdministrationReportFINAL2.4.14.pdf. 28 Glaberson, supra note 5. 29 Dec. 2013 Press Release, supra note 3. 30 N.Y.C. Bar 2015-2016 Report, supra note 20, at 3.
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funding increase for the 2014-2015 year, the Governor touted that “[f]or the past three years my Administration and the Legislature have kept spending increases below 2 percent.” He characterized the budget request as “out of step with our fiscally responsible goal for all of New York State government,” and stated his belief that “an efficient and effective Judiciary can robustly fulfill its constitutional duties with a spending increase at or below 2 percent.” He then urged the Legislature and the New York Courts to “reduce the Judiciary budget so that it is in line with the rest of State spending.”31
124. Funding for the New York Courts has failed to keep up with case backlogs. The 2016-2017 state budget, announced by the Governor in mid-April 2016, included a funding increase of $44.4 million for the New York Courts, representing a 2.4% increase over the previous year’s budget. The new budget, however, fails to offset $19.5 million of the $27.2 million cost of mandatory raises for New York’s judges going into effect this year.
125. For over a decade, the New York Courts have repeatedly promised reforms to address Court Delay, but have failed to remedy the systemic constitutional violations. For example, in November 2004, the New York Courts merged Bronx Criminal Court with the Criminal Term of Bronx County Supreme Court (the “Merger”) in an effort to curb felony and misdemeanor case backlogs. While a 2009 report by the New York Courts found that the Merger had largely failed to achieve its overall goals, it also found that the number of misdemeanor trials jumped to nearly 350 per year and remained close to 300 through 2009.32 Despite the improvement in misdemeanor trial capacity, which the 2009 report called “the most
31 Commentary of the Governor on the Judiciary, N.Y. State Div. of Budget (2014-15), https://www.budget.ny.gov/pubs/archive/fy1415archive/eBudget1415/agencyPresentations/pdf/C ommentary.pdf. 32 Merger Report, supra note 3, at 13.
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important factor in driving the resolution of criminal cases,”33 the New York Courts abandoned the Merger in 2012. A year later, Bronx Criminal Court’s backlog of cases pending for more than a year was greater than the four other boroughs of New York City combined.
126. In 2013, the New York Courts announced a misdemeanor initiative to address the problem, including but not limited to: (a) pledging three additional judges to the Bronx “to preside exclusively over misdemeanor trials”; and (b) implementing strict case management practices, such as shorter adjournments and tighter motion schedules.34 The reforms have either not materialized or have failed to remedy the problem. Some reforms, such as a focus on shortening adjournment times, have actually had a negative impact on the system: while the average length of adjournments has decreased, the average time to disposition has increased, meaning that defendants are forced to come back to court even more frequently over longer periods of time, increasing the burden of having an open case and diverting additional judicial resources.
127. Prosecutors have also expressed concern about systemic Court Delay and its impact. Former Bronx District Attorney Robert Johnson stated, “I believe [the Bronx] ha[s] really trailed behind in [trial capacity] for the past couple of decades. We need to take a longterm look concerning additional judges, additional courtrooms, and additional staff to better handle the caseloads we are getting in.”35 Other members of the District Attorney’s office have echoed Johnson’s sentiments. One senior prosecutor asserted that “[o]ne of the primary problems we deal with is resources: judges, court rooms, court reporters, court officers that are needed . . . the more of that we have, the more efficient the system would be,” while another 33 Id. at 1. 34 Dec. 2013 Press Release, supra note 3. 35 Interview, District Attorney Rob Johnson: Justice and the Bronx, The Bronx Chronicle, Dec. 5, 2014, http://thebronxchronicle.com/2014/12/05/district-attorney-rob-johnson-justice-bronx.
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former prosecutor lamented that “[t]here were never enough courtrooms to meet the needs of having a defendant tried in a timely fashion, there is no doubt about that. So with more judges and more courtrooms, we’d be able to address the backlog of cases.”36
128. The new Bronx District Attorney, Darcel Clark, has identified Court Delay as one of the major problems facing the Bronx Criminal Court, noting, “I sat as a judge in the Bronx for 13 years, I know the delays that have hampered prosecution of cases.” Clark has called for more judges in the Bronx.37
129. Given the extensive and persistent nature of systemic Court Delay in Bronx Criminal Court, it has been the subject of widespread press coverage. In 2013, the New York Times published a four-part series exploring the culture of delay in the Bronx courts, recognizing that “[t]he [Bronx] courts are so dysfunctional that those accused of minor offenses— misdemeanors like trespassing or driving with a suspended license—have all but lost the fundamental guarantee of the American legal system: the right to a trial.”38
130. Despite extensive media coverage and their own repeated acknowledgment of the depth of the debilitating Court Delay in Bronx Criminal Court, the Defendants have consistently failed to remedy the ongoing and widespread constitutional violations. Defendants have failed to provide adequate resources, failed to allocate and manage existing resources properly, and failed to train, supervise, and monitor the staff and judges adequately to ensure compliance with constitutional mandates. 36 Catie Edmondson, Progress Elusive as Bronx DA Cruises Toward Reelection, Gotham Gazette, Aug. 11, 2015, http://www.gothamgazette.com/index.php/government/5845-progresselusive-as-bronx-da-cruises-toward-reelection. 37 Rebecca Davis O’Brien, Likely Bronx DA Has Plans, Wall St. J., Oct. 27, 2015, http://www.wsj.com/articles/likely-bronx-da-has-plans-1445994155. 38 William Glaberson, In Misdemeanor Cases, Long Waits for Elusive Trials, N.Y. Times, Apr. 30, 2013, http://www.nytimes.com/2013/05/01/nyregion/justice-denied-for-misdemeanor-casestrials-are-elusive.html.
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VII. The Human Costs of Systemic Court Delay 131. Plaintiffs face a deprivation of their right to due process under the Fourteenth
Amendment to the United States Constitution. They also face a denial of their speedy trial rights under the Sixth and Fourteenth Amendments to the United States Constitution.
132. The systemic violations of due process and the right to a speedy trial wreak havoc on the lives of people charged with misdemeanors. Beyond the physical and psychological toll exacted by seemingly interminable and disproportionate delays—which, because of court congestion and a lack of trial capacity, may go on for years—each postponement of trial brings with it the potential for another missed day of work, lost wages, school absence, rescheduled medical appointment, financial hardship, or childcare emergency. People accused of misdemeanor offenses must pay for transportation to and from court. Repeated absences from work can strain relationships with current employers, and potential future employers are less likely to hire people when a background check reveals a pending criminal case. And the longer a case lasts, the more likely it is that a person will miss court and have a warrant issued for his or her arrest.
133. For people working in the public sector or in jobs requiring state-issued licenses—such as security guards, home health aides, or cab drivers—an open case may lead to an immediate suspension without pay and, ultimately, termination.
134. These damaging effects have been exacerbated by the recent practice of requiring people to come to court more frequently over the course of their cases for perfunctory appearances. Although the average age of a misdemeanor case pending in Bronx Criminal Court between January 2014 and December 2015 did not materially change, the average adjournment—the length of time between court dates—decreased from 43 days to 36 days.
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Thus, people are being required to return to court more often without any additional prospect of receiving a trial.
135. Despite the fact that the overwhelming majority of court appearances amount to little more than calendaring exercises that are concluded in minutes, people charged with misdemeanors are often forced to spend hours or even entire days waiting for their court appearances.
136. The tremendous costs and harms associated with these violations—including lost wages and adverse effects on employment prospects—fall particularly hard on residents of the Bronx, where unemployment rates are significantly higher than in the rest of New York City.
137. Faced with the reality that trials are, for all intents and purposes, unattainable for the vast majority of people accused of misdemeanors in the Bronx, many are forced to abandon their constitutional right to a trial and resolve their cases through a negotiated disposition rather than wait for a trial that may never materialize.
CLAIMS FOR RELIEF First Claim for Relief
(Violation of Due Process under the Fourteenth Amendment) 138. Plaintiffs reallege and incorporate by reference the foregoing paragraphs. 139. Defendants, acting under the color of law, have enforced, promoted, encouraged, and sanctioned a policy, practice, and/or custom of excessive and unreasonable systemic Court Delay in Bronx Criminal Court. By permitting, tolerating, sanctioning, and causing such widespread systemic Court Delay, Defendants have deprived Named Plaintiffs, as well as the members of the class they seek to represent, of their due process right to have a trial at a meaningful time and in a meaningful manner as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
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Second Claim for Relief (Violations of the Sixth and Fourteenth Amendments) 140. Plaintiffs reallege and incorporate by reference the foregoing paragraphs. 141. Defendants, acting under the color of law, have enforced, promoted, encouraged, and sanctioned a policy, practice, and/or custom of excessive and unreasonable systemic Court Delay in Bronx Criminal Court. By permitting, tolerating, sanctioning, and causing such widespread systemic Court Delay, Defendants have deprived Named Plaintiffs, as well as the members of the class they seek to represent, of their right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983. 142. Defendants, acting under the color of law, have enforced, promoted, encouraged, and sanctioned a policy, practice, and/or custom of excessive and unreasonable systemic Court Delay in Bronx Criminal Court. By permitting, tolerating, sanctioning, and causing such widespread systemic Court Delay, Defendants have constructively deprived Named Plaintiffs, as well as the members of the class they seek to represent, of their right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983.
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Case 1:16-cv-03455-GBD Document 1 Filed 05/10/16 Page 36 of 37 REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court: 143. Certify this action as a class action on behalf of the proposed class pursuant to
Rule 23 of the Federal Rules of Civil Procedure; 144. Declare that Defendants’ acts, practices, polices, and/or omissions deprive
Plaintiffs of their rights under the Sixth and Fourteenth Amendments to the United States Constitution;
145. Provide appropriate equitable relief; 146. Award reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and 147. Grant such other and further relief as the Court may deem just and proper.
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Dated:

May 10, 2016 Bronx, New York

THE BRONX DEFENDERS
By: _______________________
Scott D. Levy Johanna B. Steinberg 360 East 161st Street Bronx, NY 10451 (718) 838-7878 scottl@bronxdefenders.org johannas@bronxdefenders.org
EMERY CELLI BRINCKERHOFF & ABADY LLP
Matthew D. Brinckerhoff Ilann M. Maazel Douglas E. Lieb 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 mbrinckerhoff@ecbalaw.com imaazel@ecbalaw.com dlieb@ecbalaw.com
MORRISON & FOERSTER LLP
Gary S. Lee Ruti Smithline Jennifer K. Brown Katie L. Viggiani James A. Newton 250 West 55th Street New York, NY 10019 (212) 468-8000 glee@mofo.com rsmithline@mofo.com jbrown@mofo.com kviggiani@mofo.com jnewton@mofo.com
Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------x CHRISTOPHER TROWBRIDGE, MICHAEL: TORRES, RONNIE PAGAN, and JUAN ORTIZ, : individually and on behalf of a class of all others : similarly situated,
Plaintiffs, -against-
ANDREW CUOMO, in his official capacity as the Governor of the State of New York, JANET : DIFIORE, in her official capacity as the Chief : Judge of the State of New York and Chief Judicial : Officer of the Unified Court System, and : LAWRENCE MARKS, in his official capacity as : Chief Administrative Judge of the Unified Court : System,
Defendants. ------------------------------------x

MEMORANDUM DECISION AND ORDER
16 Civ. 3455 (GBD)

GEORGE B. DANIELS, United States District Judge:

At stake in this action are critical constitutional guarantees of efficient speedy trial due

process that undergird the American system of criminal justice. Plaintiffs, Christopher

Trowbridge, Michael Torres, Ronnie Pagan, and Juan Ortiz (together "Plaintiffs"), on behalf of

themselves and all others who will likely be denied a speedy trial caused by delays in the New

York City Criminal Court, Bronx County ("Bronx Criminal Court"), bring this action against

Defendants, Governor Andrew Cuomo, Chief Judge Janet Difiore, and Chief Administrative

Judge Lawrence Marks (collectively "Defendants") for violations of due process, (Compl., ECF
No. 1, 'il'il 138-39), and their rights to a speedy trial, (id. 'il'il 140-42), under the federal civil rights

statute, 42 U.S.C. § 1983, and the Sixth and Fourteenth Amendments of the United States
Constitution. (Id. 'il 15.)

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This action anses out of the alleged severe and persistent delays in "processing misdemeanor cases, court congestion, and case backlogs (collectively [termed] 'Court Delay')" plaguing the Bronx Criminal Court. (Id. ~ 1.) Plaintiffs seek certification of a putative class pursuant to Rule 23 of the Federal Rules of Civil Procedure, a declaration that "Defendants' acts, practices, policies, and/or omissions deprive Plaintiffs of their rights under the Sixth and Fourteenth Amendments to the United States Constitution," appropriate equitable relief, attorneys' fees and expenses pursuant to 42 U.S.C. § 1988, as well as any other ')ust and proper" relief. (Id. ~~ 143-47.)
Defendants move to dismiss each Plaintiffs' claims pursuant to Federal Rule of Civil Procedure l 2(b)( 1) for lack of standing and under the principles of abstention. Defendants also move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Defs.' Mot. to Dismiss, ECF No. 29; Defs.' Mem. in Supp. of Mot. to Dismiss ("Mem."), ECF No. 30, at 2.) 1
Defendants' Motion to Dismiss Plaintiffs' claims for lack of standing is GRANTED without prejudice. However, this Court declines to abstain adjudication, and Defendants' Motion to Dismiss for failure to state a claim is denied. Governor Andrew Cuomo is dismissed as a defendant from this action. Plaintiffs may amend the Complaint within thirty days of this Order to include named plaintiffs who have pending delayed cases in Bronx Criminal Court, provided that amendment would not be futile.
I. BACKGROUND
The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend.
1 The motion was fully submitted following the filing of Plaintiffs Opposition brief ("Opp'n," ECF No. 33) and Defendant's Reply brief ("Reply," ECF No. 34).
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VI. It is axiomatic that the right to a speedy trial applies to the states through the Fourteenth
Amendment. In New York, the right to a speedy trial is codified at New York Criminal Procedure Law§§ 30.20 and 30.30. (Compl. ~ 104 (citing N.Y. Crim. Pro. L. §§ 30.20, 30.30).) Section 30.20 provides that "[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial." (Id.) Section 30.30 provides that a court must dismiss a criminal case if the People are not ready for trial within:
ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months [also known as a Class A misdemeanor] and none of which is a felony; 2 sixty days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months [also known as a Class B misdemeanor] and none of which is a [Class A misdemeanor]; [or,]
thirty days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime. N.Y. Crim. Pro. L. §§ 30.30(b-d); (see also Compl. ~~ 105-107). The Complaint alleges that despite such safeguards, "the few people who manage to exercise their right to trial in misdemeanor cases wait on average 642 days for a non-jury bench trial and an astonishing 827 days for a jury trial" in Bronx Criminal Court. (Compl. ~ 7.)
A. Trial Readiness in Practice On behalf of a putative class of "all persons who will be prosecuted in Bronx Criminal Court with a misdemeanor or lesser offense as the top charge," (Id.~ 24), Plaintiffs allege several structural barriers to timely misdemeanor adjudication that are unique to the Bronx Criminal Court. (See id. ~~ 10-11.) Indeed, Plaintiffs allege that even before proceeding to trial, delays are part of
2 Plaintiffs allege that the New York Courts' Standards and Goal Guidelines for the Disposition of Criminal Cases (which are on par with national standards) provide "that a misdemeanor case should reach final disposition within 90 days of arraignment." (Id.~~ 90-91.)
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the process: while hearings on the constitutionality of searches, seizures, and identification processes are routinely granted as part of criminal motion practice, "the hearings ... are not conducted until much later, if ever." (Id.~ 33.)
Upon completion of motion practice, the case is scheduled for "hearings and trial"essentially a "trial ready date." (See id. ~ 34.) If either side is not ready, the judge adjourns the case usually by four to six weeks. However, time accrues toward the speedy trial requirement only when the prosecution is not ready for trial, (id. ~ 111 ), and, according to Plaintiffs, such time is only counted in the amount requested by the prosecutor. (Id. ~ 112.) That is, if a prosecutor requests a week's adjournment, a Trial Part may not then be available, and a judge may adjourn for one to two months at a time, but only the week-long request is counted toward the statutory speedy trial calendar. (Id.)
If both the prosecutor and defendant are ready, the judge determines if a Trial Part is available. (Id.~ 34.) If no Trial Parts are available, the case is again adjourned. (Id.) Even in circumstances where a Trial Part is available, Plaintiffs allege that trial usually does not commence due to various reasons, inter alia, witness unavailability or even witnesses' failure to appear, in which case, the judge may again adjourn the trial. (Id.~ 35.)
B. Systemic Delay By the Numbers According to Plaintiffs, at the beginning of 2016, the Bronx Criminal Court had 538 misdemeanor cases that had been pending for over two years and 2,378 such cases pending for over a year-well in excess of the ninety-day standard. (See Compl. ~ 5.) Plaintiffs allege that 2015 fared no better: while the Bronx Criminal Court handled 45,000 misdemeanor arraignments, it only held ninety-eight misdemeanor trials. (Id. ~ 6.) Plaintiffs further allege that, in 2015, on average, while more than 800 new misdemeanor cases were filed
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each week, fewer than two were resolved by trial. (Id.) Plaintiffs allege that at the end of 2015, the average misdemeanor case had been pending in Bronx Criminal Court for 219 days-almost 250% longer than the timeline provided by the New York Courts standard. (Id. ~ 92.) Plaintiffs further allege that over 64% of misdemeanor cases had been pending in excess of the ninety-day standard, and 19% of cases had been pending over a year. (Id.) Such delays occurred despite the implementation of a specialized Bronx Misdemeanor Standards & Goals Part, a courtroom dedicated to processing the oldest misdemeanors, at the end of 2014. (Id.~ 94.)
In light of such delays, according to Plaintiffs, "many people charged with misdemeanors in the Bronx plead guilty in order to stem the ongoing costs associated with returning to court for months on end." (Id.~ 9.) Plaintiffs allege that such costs include job termination, "missed work, lost wages, school absences, rescheduled medical appointments, childcare emergencies, strained professional and familial relationships, and psychological stress." (Id.~~ 12, 132-33.) Plaintiffs further allege that, as a general rule, Bronx criminal defendants are "required to appear in court on each and every court date," even for perfunctory conferences, usually by 9:30 a.m., and often wait many hours because there "may be more than 100 cases on the calendar in any given courtroom." (See id.~ 37.)
Plaintiffs allege that the Manhattan, Brooklyn, Queens, and Staten Island Criminal Courts do not have similar delays, (id. ~ 10), and that in 2013, the Bronx Criminal Court backlog for cases older than a year "was greater than the four other boroughs ... combined." (Compl. ~ 125.) Plaintiffs further allege that former and current members of the Bronx District Attorney's office, including current District Attorney, Darcel Clark, the New York City Mayor's Office of Criminal Justice, as well as the state court system itself, have "recognized the need to expand trial capacity in the Bronx, recommending, in part, an increase in ... additional judges and court staff' since at
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least 2009, but that the court system's widely-recognized3 lack of funds has led to just the opposite. (Id. ~~ 11 7-19 (citing Jonathan Lippman, et al., New York State Unified Court System Budget: Fiscal Year 2014-2015, at iii (2013), available at https://www.nycourts.gov/admin/financialops/ BGT14-15/2014-15-Budget.pdf).) More specifically, Plaintiffs allege that funding has failed to increase at an appropriate rate. The costs to operate the New York Courts increased by about $400 million between 2009 and 2015 and outstripped the budget increase of only $27.5 million. (Id. (citing Report in Support of the Judiciary's 2015-2016 Budget Request, N.Y.C. Bar Ass'n 1 (Feb. 2015), http://www2.nycbar.org/pdf/report/uploads/20072866ReportinSupportoftheJudiciarys 20152016 BudgetRequest.pdf).) Former New York State Chief Judge Jonathan Lippman has characterized the situation in Bronx Criminal Court as "intolerable" and "entirely unacceptable." (See id.~~ 13-14 (citing William Glaberson, Faltering Courts, Mired in Delay, N.Y. Times, Apr. 13, 2013, http://www.nytimes.com/2013/04/14/nyregion/j ustice-denied-bronx-court-systemmired-in-delays.html) (internal quotation marks omitted); see also id. ~ 128 (internal citation omitted)).
Plaintiffs allege more specifically that depleted court officers, clerical staff, and reporters have led to a domino effect of delays ranging from processing of court documents to deciding motions to opening of Court Parts for trials, which has been "exacerbated by a shortage ofjudges to consistently preside over jury [T]rial [P]arts." (Id.~~ 119, 121-22.) According to Plaintiffs, in 2015, Trial Parts lay empty 31 % of the time. (Compl. ~ 99.) Plaintiffs further allege that not only court staff and judges, but even additional courtrooms, are needed to alleviate the dire situation. (Id.~ 127.)
3 Plaintiffs cite to public statements about the Court Delay made between 2001 and 2014 by various New York State Court personnel, including former Chief Administrative Judges Gail Prudenti and Ann Pfau, former New York Criminal Court Administrative Judge Barry Kamins, and Defendant Chief Administrative Judge Marks. (See Compl. ~ 119.)
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C. Named Plaintiffs
The named Plaintiffs are three Bronx residents (Trowbridge, Torres, and Ortiz) and one
Manhattan resident (Pagan), who allege that they "will be prosecuted in Bronx Criminal Court
with a misdemeanor or lesser offense as the top charge." (Id.~~ 19-20.) None of the four named
Plaintiffs had a current pending case before the Bronx Criminal Court at the time of filing of the Complaint or thereafter. 4 (See id.~~ 63-86.)
1. Christopher Trowbridge
Plaintiff Trowbridge alleges that he has struggled with a heroin addiction for the last
eighteen years, which has already "led to multiple arrests and [at least six] prosecutions in Bronx
Criminal Court" since 2008. (Id. ~~ 84-85.) As a "long-term drug addict," prone to relapses,
Trowbridge "will likely be arrested and prosecuted in the Bronx again," upon which he will
allegedly be subject to the unconstitutional delays in the Bronx Criminal Court. (Compl. ~ 86.)
However, Trowbridge does not allege that he has ever been subject to unreasonable Court Delay
or denied a speedy trial. (See id.~~ 84-86.)
2. Michael Torres
Plaintiff Torres alleges that his various occupations in the construction industry, which
include installing windows and doors, require him to carry a folding knife to and from work on a
4 The Complaint also alleges incidents of Court Delay that non-parties to this action have experienced due
to the unavailability of Trial Parts and/or the People stating "not ready." (See Comp!. i!il 38-62.) For
example, Plaintiffs allege that Sarah Bello, a single mother of four, was arraigned and prosecuted for a misdemeanor, and over 1, 166 days, had to appear for thirty-three conferences-thirty of which were trial
dates-before her case was adjourned in contemplation of dismissal. (See id. i!il 42-46.) Plaintiffs further
allege that because her criminal prosecution was pending, her Violence Against Women Act-based
permanent residency petition was ultimately denied. (Id. i!il 41, 47.) Joseph Bermudez's misdemeanor
prosecution allegedly lasted 1,255 days after his arraignment, and twenty-eight out of his thirty-eight
scheduled court dates were trial dates. (Id. i!il 50-52.) According to Plaintiffs, on at least sixteen of those trial dates, no Trial Parts were available, and on five trial dates, the People stated "not ready." (Id. ilil 52-
53 .) Plaintiffs allege that John Carridice, who was charged with misdemeanor and non-criminal violations for intervening in a street fight, experienced a delay of 1,003 days involving nineteen trial dates out of his
twenty scheduled court appearances. (Id. ilil 57-58.)
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daily basis. (Id. ~ 72.) Plaintiff further alleges that while his knife is legal and regularly sold by home improvement and camping retailers, "police officers regularly arrest, and the [D.A.] regularly prosecutes people-primarily people of color from low-income communities like the South Bronx-for possession of such knives," because of their purported similarity to illegal gravity knives. (Id.) Plaintiff alleges that he is likely to be prosecuted in Bronx Criminal Court also because his jobs require him to drive to sites not accessible by public transportation, and his license has been suspended in Florida for the last six years. (Id.~ 73.)
Torres alleges that he experienced the very delays detailed in the Complaint when he was prosecuted in September 2011 for a marijuana possession misdemeanor. (Compl. ~ 64.) According to Torres, of the fourteen scheduled court dates for which Torres appeared in person, ten were trial dates, and on February 20, 2014, at least 877 days after his arraignment, his case was dismissed after the arresting officer testified he had no independent recollection of Torres' arrest. (Id. ~~ 65, 68.) Torres further alleges that he has lost wages and at least one construction job throughout the more than two years his case remained pending because of the number of times he had to appear in court. 5 (Id.~~ 69, 70.)
3. Ronnie Pagan Plaintiff Pagan, a Manhattan resident with a girlfriend and children who live in the Bronx, alleges that he is routinely stopped and has been arrested by police officers on suspicion of trespassing in his girlfriend's building because his driver's license has a Manhattan address. (Id. ~ 80.) Plaintiff alleges that the City of New York has a "well-documented" anti-trespass policy for New York City Housing Authority buildings such as the one in which Pagan's girlfriend and
5 None of the Plaintiffs seek damages for alleged past injuries. (See Comp!. iii! 143-147.)
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children live, which is likely to be used against him and to result in his re-entry into the Bronx Criminal Court system with its myriad delays. (Id.)
Pagan alleges he has been subjected to unreasonable Court Delay as a result of a stop and search in February 2014, which led to his arrest, charge, and prosecution for misdemeanor drug possession, obstruction of governmental administration, and trespass. (Compl. ~ 75.) Pagan alleges that since his arraignment, he had wanted to go to trial. (Id.) Pagan further alleges that of his eighteen court dates, sixteen were trial dates, and on eleven of those trial dates both parties were ready, but no Trial Parts were available. (Id.~~ 76-77.) On three other trial dates, the People requested adjournments because they were not ready. (Id. ~ 78.) 763 days after Pagan's arraignment, on March 21, 2016, Pagan alleges that he "reluctantly accepted an adjournment in contemplation of dismissal" because of "the stress of having an open misdemeanor case." (Id. ~ 79.)
4. Juan Ortiz Plaintiff Ortiz alleges that he has a psychiatric condition brought on by the stress and anxiety of undergoing surgery and chemotherapy for colon cancer. (Id.~ 81.) According to Ortiz, his multiple medications cause episodes of "severe disorientation" in which he experiences a compulsion to shoplift. (Compl. ~ 82.) Ortiz further alleges that between December 2012 and March 2015, he was arrested and prosecuted fourteen times for petit larceny and/or possession of stolen goods. (Id.) Ortiz alleges that in one of his criminal matters, he received a one-year sentence of incarceration and was released in September 2015. (Id.) Ortiz does not allege that he was subject to unreasonable Court Delay during his prior court cases. (See id. ~~ 81-83.) Because of his ongoing psychiatric condition, Ortiz contends that he will likely be arrested and prosecuted in the Bronx where he will be subjected to Court Delay. (Id.~ 83.)
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D. Defendant-specific Allegations According to Plaintiffs, Defendant Governor Andrew Cuomo, as Governor of New York, ''the chief law enforcement officer of New York State," bears the responsibility to allocate judicial resources in a way that upholds due process and speedy trial rights under the federal Constitution and New York laws. (Id. ~ 21.) Plaintiffs allege that the Governor rejected the state judiciary's request for a 2.7% funding increase for the 2014-2015 fiscal year and urged the Legislature and the state courts to "reduce the Judiciary budget so that it is in line with the rest of [s]tate spending." (Compl. ~ 123.) While the Governor approved a 2.4% increase ($44.4 million) in spending for 2016-2017, Plaintiffs allege such an increase does little to alleviate systemic court delays because part of that increase pays for mandatory raises of state judicial salaries. (Id. ~ 124.) Defendant Janet Difiore is Chief Judge of the New York Court of Appeals, Chief Judicial Officer of the New York State Courts, and the Chair of the Administrative Board of the New York Courts. Plaintiffs allege she is responsible for the Bronx Criminal Court's compliance with the law and for the establishment and enforcement of the New York court system's administrative policies. (Id.~ 22.) Finally, Plaintiffs allege that Defendant Lawrence Marks, Chief Administrator and Chief Administrative Judge of the New York Courts, supervises the administration and operation of the state court system. (Id.~ 23.) II. MOTION TO DISMISS FOR LACK OF STANDING Defendants argue that Plaintiffs, none of whom have cases pending in Bronx Criminal Court, lack standing to bring this action because their allegations fail to show injury-in-fact. (See Mem., at 8-13.) More specifically, Defendants contend that Plaintiffs' allegations of potential delays are too speculative, and fail to allege an individual imminent threat of future harm vis a vis enforcement of a policy or practice. (Id., at 12.)
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A. Legal Standard
A motion to dismiss for lack of standing is properly brought under Federal Rule of Civil Procedure l 2(b)(1 ). 6 See All. for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 89 n.6 (2d Cir. 2006) (internal citation omitted) (holding that standing challenges are properly brought under Rule l 2(b)(1) prior to a challenge on the merits). Article III of the Constitution mandates that federal courts may only hear live "cases" and "controversies." See U.S. Const., art. III, § 2; Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (internal citation omitted). "In order to ensure that this 'bedrock' case-or-controversy requirement is met, courts require that plaintiffs establish their 'standing' as 'the proper part[ies] to bring' suit." WR. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (internal citation omitted).
B. Standing To establish Article III standing, a plaintiff must show that (1) he has suffered an actual or imminent injury-in-fact, which is concrete and particularized; (2) there is a causal connection between the injury and the defendant's actions; and (3) it is likely that a favorable decision in the case will redress his injury. See Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61 (1992). "[A] plaintiff must demonstrate standing separately for each form ofrelief sought," be it compensatory or injunctive. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185
6 With regard to standing, the Second Circuit has instructed: [w]hi le standing, which is an issue of justiciability[,] addresses the question whether a federal court may grant relief to a party in the plaintiff's position, subject matter jurisdiction addresses the question whether a federal court may grant relief to any plaintiff given the claim asserted. Thus, although both subject matter jurisdiction and standing (as well as other questions of justiciability) act to limit the power of federal courts' "jurisdiction" in the broadest sense of the term, the two must be treated distinctly.
Rent Stabilization Assoc. of the City of N. Y. v. Dinkins, 5 F.3d 591, 594 n.2 (2d Cir. 1993) (citing Flast v. Cohen, 392 U.S. 83, 98-99 ( 1968)) (emphasis in original); see also Lunney v. United States, 319 F.3d 550, 560 (2d Cir. 2003) (distinguishing between a lack of standing and a lack of subject matter jurisdiction and stating that "lack of subject matter jurisdiction means that no one can have standing").
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(2000) (internal citation omitted); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016). To establish standing to bring prospective claims for relief, a plaintiff must allege a case or controversy of"sufficient immediacy and reality." City ofL.A. v. Lyons, 461 U.S. 95, 104 (1983) (quoting Golden v. Zwick/er, 394 U.S. 103, 109 (1969) (internal quotation marks omitted)).
To establish Article III standing in a class action, "the named class plaintiffs 'must allege and show that they personally have been injured, not that the injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent."' Cent. States Se. and Sw. Areas Health and Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 199 (2d Cir. 2005) (quoting Warth v. Sedlin, 422 U.S. 490, 502 (1975) (internal citation omitted)). "[F]or every named defendant there must be at least one named plaintiff who can assert a claim directly against that defendant." NECA-IBEW Health & Welfare v. Goldman Sachs & Co., 693 F.3d 145, 159 (2nd Cir. 2012) (internal citation and quotation marks omitted); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Bowsher v. Synar, 478 U.S. 714, 721 (1986) ("It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits.")
1. Injury-in-Fact For a plaintiff to establish standing, he must sufficiently allege his own injury-in-fact. See Lujan, 504 U.S. at 560-61. A plaintiff must show that he "'has sustained or is immediately in danger of sustaining some direct injury' as the result of challenged official conduct and the injury or threat of injury must be both 'real and immediate,' not conjectural" or 'hypothetical.'" Lyons, 461 U.S. at 102 (citing cases). Plaintiffs do not dispute that none of the named Plaintiffs has a current open criminal case in Bronx Criminal Court. (Reply, at 2; See Compl. ~~ 63-86.) Indeed, Plaintiffs conceded as
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much during oral argument on this motion. (See Oral Arg. Tr. ("Tr."), at 59:2-4.) While only Plaintiffs Torres and Pagan have alleged they have suffered past injury in the form of lengthy prosecutions (respectively, 877 days from arraignment to dismissal of charges, and 763 days from arraignment to presumed dismissal of charges), the Complaint does not request relief for their past
injuries in the form of damages. See Nicosia, 834 F.3d at 239; (see Compl. iJiJ 143-147.)
Although past injuries may provide a basis for Torres' and Pagan's standing to seek money damages, they do not confer standing to seek injunctive relief unless Plaintiffs can demonstrate that they are likely to be harmed again in the future in a similar way. See Ligon v. City ofN. Y ("Ligon IF'), 925 F. Supp. 2d 478, 522 (S.D.N.Y. 2013) (quoting Floyd v. City ofN. Y, 283 F.R.D. 153, 169 (S.D.N.Y. 2012)) ("Concrete injury is a prerequisite to standing and a 'plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future."'). Accordingly, federal courts, including the Second Circuit, have recognized that the injury-in-fact requirement may be satisfied by sufficient allegations of the likelihood of future harm. See Deshawn E. by Charlotte E. v. Sajir, 156 F.3d 340, 344 (2d Cir. 1998) (citing Lyons, 461 U.S. at 105-06). Where, as here, a plaintiff seeks prospective injunctive relief, he must also demonstrate "that he is realistically threatened by a repetition of [the violation]." Lyons, 461 U.S. at 109. The Second Circuit has held that "enhanced risk" of future injury may sometimes constitute injury-in-fact, but that "such injuries are only cognizable where the plaintiff alleges actual future exposure to that increased risk." Nicosia, 834 F.3d at 239.
Plaintiffs contend that they have plausibly alleged7 a sufficient likelihood of future harm to establish standing for the named Plaintiffs because they are "regularly arrested for (low-level,
7 Plaintiffs argue that in this Circuit, "a liberal standard for assessing pleading sufficiency under [Rule 8(a)] must be applied 'with particular strictness' where 'the complaint alleges a civil rights violation."' (Opp'n
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nonviolent) unlawful conduct ... or lawful conduct regularly misperceived as unlawful." (Opp'n, at 6-7 (citing Compl. ,, 72, 73, 80, 83, 86).) Plaintiffs rely upon cases which have held that "[t]he possibility of recurring injury ceases to be speculative when actual repeated incidents are
documented." See e.g., Floyd, 283 F.R.D. at 170 (holding that where plaintiffs risk of future
injury is based on his arrest for lawful conduct, the risk of injury is not based on a string of unlikely contingencies); Deshawn E., 156 F.3d at 344-45 (finding that because of an alleged official policy, plaintiffs were likely to suffer the harm of future interrogations in violation of their right against self-incrimination and coercion and right to counsel).
More specifically, Plaintiffs allege they are persons whose behaviors or circumstances will result in a high likelihood of their arrest and prosecution in Bronx Criminal Court. (Opp'n, at 7.) For example, Plaintiff Torres alleges that his current employment necessitates that he drive despite a suspended license, for which he has been prosecuted twice in the last six years, and carry a pocket knife easily mistaken for an illegal gravity knife, for which he has been prosecuted once. (Id., at 8 (citing Compl. ,, 63, 72-73).) Similarly, Plaintiff Trowbridge's heroin addiction has allegedly led to at least six prosecutions in Bronx Criminal Court since 2008. (Id. (citing Compl. ,, 85-86).) Plaintiff Pagan's regular visits to his girlfriend and children's residence in a South Bronx NYCHA building has allegedly led to repeated arrests, exposing him to heightened risk of arrest and prosecution in Bronx Criminal Court. (Id. (citing Compl., 80).) Plaintiffs contend that Plaintiff Ortiz's medical condition also places him at heightened risk of arrest for compulsive shoplifting in the Bronx. (Id. (citing Comp., 82-83).) According to Plaintiffs, such constellations of factsfacts which make it likely that Plaintiffs will engage in facially unlawful behavior-heighten the
at 5 n.3 (citing cases).) While this Court acknowledges the Second Circuit's special attention to civil rights violations, such as those alleged here, this Court must also balance that against the Article III requirement that Plaintiffs establish standing. See WR. Huff, 549 F.3d at 106 (internal citation and quotation marks omitted).
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risk that Plaintiffs will likely be prosecuted in Bronx Criminal Court once again, where their right to a speedy trial will necessarily be violated due to the alleged Court Delay. (Opp'n, at 5; Tr., at 64:23-65:1, 14-17.) Thus, Plaintiffs argue that "[i]t is the likelihood of prosecution in the future that imbues a person with standing." (Tr., at 64: 17-18.)
Plaintiffs' theory of standing based on a likelihood of future prosecution and trial delay is more accurately understood as a heightened risk of prosecution theory of standing. "[S]uch injuries are only cognizable where the plaintiff alleges actual future exposure to that increased risk." Nicosia, 834 F.3d at 239 (internal citation omitted).
Plaintiffs contend that they are realistically threatened by re-arrest in Bronx County for misdemeanors, extremely likely to be charged and prosecuted in Bronx Criminal Court, and thus necessarily subjected to systemic Court Delay. (Opp'n at 7-9.) That argument is too attenuated to establish that these four Plaintiffs have standing. See Shain v. Ellison, 356 F.3d 211, 215-16 (2d Cir. 2004) (finding that even if plaintiff were arrested again on a misdemeanor charge, "it is entirely conjectural that he would be detained overnight and remanded [to jail]" where he would be subject to the unconstitutional strip search); (see Reply, at 2). Even if Plaintiffs might be realistically threatened with recurrence of arrest, that is wholly distinct from being charged and then prosecuted in Bronx Criminal Court, and thereafter denied a speedy trial due to the alleged unconstitutional Court Delay. See Janes v. Tri borough Bridge & Tunnel Auth., 889 F. Supp. 2d 462, 466-67 (S.D.N.Y. 2012) (finding that plaintiffs who lacked a drivers' license but might get one in the future lacked standing to challenge a differential toll under the Commerce Clause). While it is true that "the possibility of recurring injury ceases to be speculative when actual repeated incidents are documented," Ligon v. City ofN. Y. (Ligon!), 288 F.R.D. 72, 81 (S.D.N.Y. 2013), the injury here is not Plaintiffs' lawful or unlawful arrests, but rather that they will
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subsequently suffer a delayed prosecution in Bronx Criminal Court. See Aguilar v. Immigr. & Customs Enforcement Div. of the U.S. Dep't of Homeland Sec., 811 F. Supp. 2d 803, 827-28 (S.D.N.Y. 2011). Plaintiffs may not conflate the process of arrest, charging, and an alleged inevitability of delayed prosecution to create an injury-in-fact.
While not necessarily required by law, Plaintiffs also do not specify an unconstitutional statute, deliberate pattern of behavior by the named Defendants, or any other practice-whether official or unofficial-that increases their probability8 of repeated prosecution and trial delay, which if present, might take the allegations from speculative to realistic. See Davis v. City ofN. Y., 902 F. Supp. 2d 405, 444 (S.D.N.Y. 2012) (citing Lyons, 461 U.S. at 111) ("In addition, I note that defendants' policies are targeted at NYCHA residents and people present on NYCHA property; the fact that plaintiffs are members of that relatively narrow community is relevant to the standing inquiry.") (emphasis added); Aguilar, 811 F. Supp. 2d at 827 (finding realistic threat of harm where complaint alleges that "ICE agents explicitly threatened to return to two of the eight homes" searched, and that agents actually did return to one of the homes); Roe v. City ofN. Y., 151 F. Supp. 2d 495, 501, 504 (S.D.N.Y. 2001) (finding standing where plaintiffs alleged realistic threat of harm to an "identifiable class of targeted individuals" when police had an official policy and practice to stop and search persons in "allegedly known 'drug areas' without individualized reasonable suspicion); Thomas v. Cty. of L.A., 978 F.2d 504, 508 (9th Cir. 1993) (holding that "numerous instances of police misconduct have occurred in a small six by seven block area[,]" creating an identifiable class of targeted individuals with standing to sue). Indeed, Plaintiffs cannot establish
8 The lack of targeting also speaks to the potential difficulty that lies in alleging a putative class of plaintiffs eligible for prospective relief. At Oral Argument, Plaintiffs articulated a class member "who is highly likely to be prosecuted in Bronx Criminal Court and subjected to a system in which the right to a trial and the right to a speedy trial are functionally meaningless." (Tr., at 64: 14-17 .) However, the Complaint alleges that the "Plaintiff Class consists of all persons who will be prosecuted in Bronx Criminal Court with a misdemeanor or lesser offense as the top charge." (Compl. ~ 24.)
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standing (nor an identifiable class) on the basis of injuries inflicted by a chain of "unfettered choices made by independent actors not before the court," Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1150 n.5 (2013) (citing Lujan, 504 U.S. at 562), especially where Plaintiffs do not articulate an officially endorsed policy, a law, or practice, but rather, an omission-Defendants' failure to act to remedy Court Delay.
It is true that imminence "is concededly a somewhat elastic concept." Clapper, 133 S. Ct. at 1147 (internal citation and quotation marks omitted), and that as courts within this Circuit have noted, guidance from the United States Supreme Court as to "the question ... of precisely 'how imminent a threat must be in order to support standing"' under a fear-based theory, '"has been less than clear."' Tomsha v. Gen. Servs. Admin., No. 15-CV-7326, 2016 WL 3538380, at *2 (S.D.N.Y. June 21, 2016) (citing Hedges v. Obama, 724 F.3d 170, 195 (2d Cir. 2013)). However, as previously noted, where federal courts have found standing, the defendants engaged in targeted behavior that directly infringed upon plaintiffs' rights. See, e.g., Floyd, 283 F.R.D. at 169-170 (finding plaintiffs had alleged facts supporting standing where they were subjected to allegedly unconstitutional practices while engaging in legal activity); L.H. v. Schwarzenegger, No. CIV. S06-2042, 2007 WL 662463, at *6 (E.D. Cal. Feb. 28, 2007) (finding that "[p]arolees are, by definition, already subject to defendants' oversight and control ... [and therefore] far more likely to experience recurrent injuries than are plaintiffs who have attempted to challenge practices that only randomly affect members of the general public"); Deshawn E., 156 F.3d at 345 (finding standing where plaintiffs challenged an "official endorsed" interrogation policy that targeted plaintiffs).
Plaintiffs' theory of standing is closer to that rejected by the United States Supreme Court in Clapper because it "relies on a highly attenuated chain of possibilities and does not satisfy the
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requirement that threatened injury must" have at least "a substantial risk" of occurring. Clapper, 133 S. Ct. at 1148, 1150 n.5 (rejecting a theory of standing that relied on a chain of several actions of various United States government entities that might possibly lead to incidental interception of plaintiffs' emails). The Court reasoned that it has been "reluctant to endorse standing theories that require guesswork as to how independent decision[-]makers will exercise their judgment." Id. at 1150. Similarly, Plaintiffs' argument implies that the police would arrest them, and that the Bronx District Attorney would decide to charge Plaintiffs with a misdemeanor crime and prosecute them. 9 Plaintiffs' case would then be subject to the possibility of unreasonable trial delay. Thus, if Plaintiffs choose to plead guilty because speedy trials are "illusory" or de facto unavailable, that rationale is still primarily dependent on Plaintiffs' future conduct and decisions by police officers and the District Attorney's office. See id.; see also La Raza, 468 F. Supp. 2d at 443 (holding that fear or heightened risk of future contact between plaintiffs and defendants that would result in alleged injury requiring two layers of independent decision-making was "too speculative and conjectural" to supply standing for prospective relief).
Accordingly, a theory of standing to assert speedy trial violations based on Plaintiffs' likelihood of future arrest and prosecution in Bronx Criminal Court on a misdemeanor charge is overly reliant on a series of events that may or may not happen, and "such an accumulation of
9 By claiming that they have no control over the circumstances that will inevitably lead to their violations of various criminal laws, Plaintiffs attempt to nullify another layer of independent decision-making and distinguish this scenario from that of O'Shea v. Littleton, 414 U.S. 488, 497 (1974), where the Court assumed those plaintiffs would "conduct their activities within the law and so avoid prosecution ... [and] exposure to the challenged course of conduct" for which Defendants are allegedly responsible. Id. Even if it were assumed that Plaintiffs did not have control over their conduct as they did in 0 'Shea, the alleged violation of speedy trial rights by Defendants is still too attenuated to rise to a substantial likelihood of future prosecution and trial delay for the reasons already stated. See, e.g., Nat'/ Council of La Raza v. Gonzales, 468 F. Supp. 2d 429, 437-38 (E.D.N.Y. 2007) (requiring both a "tight connection between heightened risk of harm and intended goals of [an allegedly violated law]" and a "credible threat of harm").
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inferences" remains too speculative and conjectural to support an actionable speedy trial violation. See Shain, 356 F.3d at 216. 10
Defendants' Motion to Dismiss for lack of standing is GRANTED. III. ABSTENTION Defendants also request that this Court abstain from entertaining this action under the principles outlined in O'Shea v. Littleton, 414 U.S. 488 (1974). (Mem., at 13-14.) Defendants argue that principles of federalism, comity, and institutional competence are implicated such that this Court should be reluctant to grant relief that would entail heavy federal interference in the administration of the state judicial system. (See id. at 13-16 (citing Miles v. Wesley, 801 F.3d 1060, 1063 (9th Cir. 2015); O'Shea, 414 U.S. at 491-92; Davis v. Lansing, 851 F.2d 72, 76 (2d Cir. 1988))); see Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006). While district courts have discretion to decide whether to abstain to hear a case, "abstention is generally disfavored, and federal courts have a 'virtually unflagging obligation"' to exercise their existing jurisdiction, particularly when ensuring that constitutional rights are upheld. Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 100 (2d Cir. 2012) (quoting Colorado River Water Conservation Dist. v. US, 424 U.S. 800, 817 (1976)); see Coolidge v. New Hampshire, 403 U.S. 443, 454 (1971) ("It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.") (quoting Boyd v. United States, 116 U.S. 616, 635 (1886) (internal quotation marks omitted)); Bank of Hamilton v. Dudley's Lessee, 27 U.S. (2 Pet.) 492, 524 (1829) ("The judicial department of every government is the rightful expositor of its laws; and emphatically of its
10 As Plaintiffs note, Defendants "do not dispute that the injuries alleged here are fairly traceable to their conduct, or that those injuries can be redressed by a favorable ruling" (the second and third requirements of standing); only the "injury-in-fact" element is contested. See Lujan, 504 U.S. 560-61; (Opp'n, at 5).
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supreme law.")). Indeed, "[this] complaint plainly sets forth a case arising under the Constitution." Baker v. Carr, 369 U.S. 186, 200 (1962). That federal courts decide whether there is a deprivation of federal constitutional rights is ''the very reason they exist." Goldstein v. Pataki, 488 F. Supp. 2d 254, 278 (E.D.N.Y. 2007), aff'd, 516 F.3d 50 (2d Cir. 2008).
The speedy trial right alleged is as plainly federal in origin and nature as those vindicated in Brown v. Board ofEducation, 347 U.S. 483 (1954). Nor is the federal right in any way entangled in a skein of state law that must be untangled before the federal case can proceed. For [Plaintiffs] assert that [Defendants] have been and are depriving them of rights protected by the Fourteenth Amendment. It is immaterial whether [Defendants'] conduct is legal or illegal as a matter of state law ... Such claims are entitled to be adjudicated in the federal courts. McNeese v. Bd. of Ed. for Cmty. Unit Sch. Dist. 187, Cahokia, Ill., 373 U.S. 668, 674 (1963) (citing, inter alia, Monroe v. Pape, 365 U.S. 167, 171-87 (1961), overruled on other grounds by Monell v. Dep't of Soc. Servs. of City ofNY, 436 U.S. 658, 663 (1978)); cf Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 229 (1964) (holding that where resolution of school desegregation is delayed for several years by resistance at the state and county level, "the issues ... imperatively call for decision now"); N. Y State Ass 'n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752, 767 (E.D.N.Y. 1973) (declining to abstain "when practices by state officials and employees alleged to violate plaintiffs' civil rights" were at issue). Indeed, the federal constitutional right to a speedy trial predated New York State's speedy trial statute by almost two
hundred years. (See Compl. iii! 108-116.)
Defendants' argument in favor of abstention, that Chief Judge Difiore and others are working toward a solution, (Tr., 46: 16-45 :20), is unavailing because as the United States Supreme Court has held, even a "defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the courts would be
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compelled to leave the defendant free to return to his old ways." Friends ofthe Earth, 528 U.S. at 189 (internal citation and quotation marks omitted).
Similarly, Defendants' argument that Plaintiffs could also bring speedy trial claims in state court, (Mem., at 18-20), does not necessarily require that this Court abstain, especially at this early stage in the litigation, where there has been little fact development. See Miles v. Wesley, 801 F.3d 1060, 1063 (9th Cir. 2015) ("Naturally, whether O'Shea abstention applies is heavily factdependent. ")
Therefore, because Defendants have not articulated compelling grounds for abstaining, this Court DENIES Defendants' request to abstain from adjudicating this action. This Court further notes that it could contemplate fashioning declaratory and injunctive relief that would not necessarily interfere with or restructure the state courts' lawful authority. Indeed, both sides agree that criminal defendants in misdemeanor cases have a right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. (See e.g., Tr., 30:42-31 :4). The State Court has the duty of ensuring the expeditious trial of criminal cases consistent with constitutional standards of due process.
IV. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendants contend that the named Plaintiffs fail to state a claim for federal constitutional speedy trial violations under the Barker v. Wingo, 407 U.S. 514, 530 (1972), four-factor test. (See Mem., at 21.) A speedy trial inquiry requires a federal court to weigh: 1) the length of the delay; 2) the reason for the delay; 3) assertion of the right during the state criminal court proceeding; and 4) prejudice to the defendant. See Barker, 407 U.S. at 530. It is a balancing test ofrelated factors that must be considered together with such other circumstances as may be relevant. See id. at 529530.
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To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard demands "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Rather, to state a facially plausible claim, Iqbal requires a party to "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). For the purposes of a 12(b)(6) motion, the plaintiff's well-pleaded facts are assumed to be true and all reasonable inferences therefrom are construed in the light most favorable to the plaintiff, the nonmoving party. Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009) (citing Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007)).
A. Claims Against Chief Judge DiFiore and Chief Administrative Judge Marks
Defendants argue that under the Barker test, the Complaint "is wholly devoid of allegations showing that any of the Plaintiffs' speedy trial rights were violated in Bronx Criminal Court." (Mem., at 22.) Specifically, Defendants contend that the Complaint does not allege that 1) the durations of Plaintiffs' previous cases before the Bronx Criminal Court were unreasonable (id.); 2) Plaintiffs asserted constitutional speedy trial challenges during the duration of their state court cases, (id., at 23); or 3) prejudice resulted from court delays. (See id.); see also Barker, 407 U.S. at 530.
Defendants' first contention-that Plaintiffs have not alleged any unreasonable trial delays-is plainly wrong. Plaintiff Torres alleges that 877 days had passed between his arraignment and the final resolution of his case. (Id.~~ 65, 68.) During this time, he appeared for fourteen scheduled court dates, and ten of those were trial dates on which Torres' case did not
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proceed to trial. (Id.) Similarly, Plaintiff Pagan alleges that 763 days passed between his arraignment and the ultimate resolution of his case by "adjournment in contemplation of dismissal" even though he had wanted to go to trial since his arraignment. (Id. ~~ 76-77, 79.) During those 763 days, he allegedly had eighteen court dates, sixteen of which were trial dates, and on eleven of those trial dates both parties were ready, but no Trial Parts were available. (Id.) On three other trial dates, the People requested adjournments because they were not ready. (Id.~ 78.)
Two years of trial delay is twice the time of a maximum misdemeanor sentence, N. Y. Penal Law§ 70.15, two-thirds of the maximum term of probation, see N.Y. Penal Law§ 65.00, and four times the statutory time provided for speedy trials in felony cases. 11 N.Y. Crim. Pro. L. § 30.30(a). Years of continuous delay in providing misdemeanor trials attributed not to the defendant, but solely to the lack of readiness of the prosecutor and/or the unavailability of courtrooms, judges, jurors, or other necessary court personnel, facilities, or equipment, is presumptively unreasonable. It is the State's responsibility to ensure that each person accused of a crime is provided a speedy trial consistent with federal constitutional guarantees. Defendants urge this Court to ignore Plaintiffs' allegations because "[t]he Sixth Amendment does not require the state to bring a criminal defendant to trial within any specific time period," (Mem. at 21 (citing Wallace v. Kern, 499 F.2d 1345, 1349 (2d Cir. 1974)). To adopt such reasoning would unacceptably weaken the
11 New York law enumerating the right to a speedy trial provides statutory limits of ninety days for misdemeanors and six months for felonies. See N.Y. Crim. Pro. L. §§ 30.30(a-d); see also United States v. Vispi, 545 F.2d 328, 333 (2d Cir. 1976) (finding that twenty-month delay was "unduly long under the circumstances" for defendant accused of failure to file federal income tax returns); United States v. Roberts, 515 F.2d 642, 646 (2d Cir. 1975) (finding that sixteen months of delay was unreasonable); see also United States v. Calloway, 505 F.2d 311, 313 (D.C. Cir. 1974) (finding delay of fifteen months unreasonable); People v. White, 32 N .Y.2d 393, 398-99, ( 1973) (holding that four years constitutes unreasonable delay); People v. White, 11 Misc. 3d 1072(A), 816 N.Y.S.2d 699 (Dist. Ct. 2006) (finding 104 days delay by the People unreasonable); People v. Coleman, 47 A.D.2d 578, 579 (1975) (finding eight month delay unreasonable).
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meaning of federal constitutional speedy trial rights. For the constitutional guarantee of the right to speedy trial to retain its meaning and utility, there must be some generally recognized point beyond which delays in misdemeanor proceedings are presumptively unreasonable. As the United States Supreme Court noted in Barker v. Wingo, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 531.
Defendants' second argument for dismissal, that Plaintiffs did not avail themselves of existing state remedies, (Mem., at 23), is similarly unavailing. The United States Supreme Court has "previously indicated that relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided a remedy ... 'It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.'" McNeese, 373 U.S. at 671 (quoting Monroe v. Pape, 365 U.S. 167, 183 (1961), overruled on other grounds by Monell v. Dep't ofSoc. Servs. ofCity ofNY, 436 U.S. 658, 663 (1978)).
Finally, contrary to Defendants' assertion, at least two Plaintiffs have alleged prejudice from Court Delay. The United States Supreme Court has acknowledged that, in the speedy trial context, "'prejudice' may take many forms." U.S. v. Taylor, 487 U.S. 341, 342 n.13 (1988). "[E]ven if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility." Barker, 407 U.S. at 533 (citing, inter alia, Klopfer v. North Carolina, 386 U.S. 213, 221-22 (1967)).
Plaintiff Torres alleges that the number of times he had to appear in court over the more than two years of the duration of his case resulted in lost wages and at least one construction job.
(Compl., iii! 69, 70.) Plaintiff Pagan also alleges despite his desire for a trial, he accepted a different
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resolution of his case because of "the stress of having an open misdemeanor case" for 763 days. 12 (Id.~ 79.) While courts may adjourn criminal matters even when a person's liberty and daily life are subject to negative changes, courts should not be permitted to adjourn misdemeanor proceedings in Bronx Criminal Court indefinitely and unnecessarily. Cf People ex rel. Maxian on Behalf of Roundtree v. Brown, 561N.Y.S.2d418, 422 (1990), aff'd, 570 N.E.2d 223 (1991). Indeed, Plaintiffs have articulated the dire consequences of having to appear and defend a misdemeanor criminal charge over a period of years. (See e.g., Compl. ~~ 64-70, 79, 132-133.) 13
Defendants' Motion to Dismiss for failure to state a claim against Chief Judge Difiore and Chief Administrative Judge Marks pursuant to Rule 12(b)(6) is DENIED.
B. Governor Cuomo is Not a Proper Defendant While this action is dismissed for lack of standing, Plaintiffs' complaint is also deficient in that it lacks sufficient factual allegations against Governor Andrew Cuomo. See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (holding that a complaint that fails to allege an individual defendant's personal involvement in the alleged constitutional violation is "fatally defective on its face") (internal quotations and citation omitted); see also Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570) (holding that to survive a 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face"'). Their sole basis of liability against Governor Cuomo is an erroneous legal
12 This Court also notes that Defendants appear to erroneously argue the factor-balancing test in Barker instead as a conjunctive elements test even though Defendants concede that "a showing of prejudice is not a prerequisite to finding a Sixth Amendment violation." (Mem., at 23.) 13 Defendants' purported requirement that individualized allegations are necessary to allege a violation of the speedy trial right is not particularly compelling. Lj. Nicholson v. Williams, 203 F. Supp. 2d 153, 240 (E.D.N.Y. 2002) (citing Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001) ("But where the state imposes systemic barriers to effective representation, prospective injunctive relief without individualized proof of injury is necessary and appropriate.")).
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conclusion that the Governor of the State of New York is "personally responsible for failing to
provide the UCS with adequate funding." (Opp'n, at 25.)
Plaintiffs have not articulated any factual basis upon which Governor Cuomo could be held
liable in his official capacity for Bronx Criminal Court Delay. Even if Plaintiffs amended the
Complaint to include a plaintiff with standing to represent a putative class, Plaintiffs cannot cure the defects in the Complaint with regard to budgetary allegations against Governor Cuomo.
Therefore, Governor Cuomo is DISMISSED as a defendant from this action.
V. CONCLUSION
Defendants' Motion to Dismiss each named Plaintiffs claims for lack of standing is
GRANTED. Defendants' Motion to Dismiss on abstention grounds is DENIED. Defendants' Motion to Dismiss for failure to state a claim against Chief Judge Difiore and
Chief Administrative Judge Marks pursuant to Rule 12(b)(6) is DENIED.
Governor Cuomo is DISMISSED as a defendant from this action.
Accordingly, Plaintiffs may move to file an amended Complaint within sixty days of this Order provided amendment would not be futile. 14
14 Where, as here, "there is a lack of Article III standing, 'Article III deprives federal courts of the power to dismiss a case with prejudice."' Hernandez v. Conriv Realty Associates, 182 F.3d 121, 123 (2d Cir. 1999); see also Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016) (holding same).
This is not a case where the substitution of a named plaintiff "is intended to cure an action that a federal court otherwise could not have heard." In re Ace Secs. Corp. RMBS Litig., Nos. 13-cv-1869, l 3cv-3687, 13-cv2053, 13-cv-2828, 2015 WL 1408837, at *7 (S.D.N.Y. March 26, 2015). The putative class allegations for violations of the Sixth Amendment right to a speedy trial remain the same. See id. This Circuit has permitted a class representative to continue as such even if his individual claims become moot. See Madanat v. First Data Corp., 626 F. App'x 349, 352 (2d Cir. 2015) (citing Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 181, 199 (2d Cir. 2005) (internal citation omitted)). Furthermore, any substitution of a named Plaintiff with standing would occur relatively early in the litigation. See Precisions Assocs., Inc. v. Panalpina World Transport (Holding) Ltd., No. CV08-42, 2013 WL 6481195, at *7-*8 (E.D.N.Y. Sept. 20, 2013).
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The Clerk of Court is directed to close the motion at ECF No. 29. Dated: New York, New York
December 21, 2016 United States District Judge
27

 
 Case 1:16-cv-03455-GBD Document 33 Filed 07/29/16 Page 1 of 33

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER TROWBRIDGE, MICHAEL TORRES, RONNIE PAGAN, and JUAN ORTIZ, individually and on behalf of a class of all others similarly situated;
Plaintiffs,
-v-
ANDREW CUOMO, in his official capacity as the Governor of the State of New York; JANET DIFIORE, in her official capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System; and LAWRENCE MARKS, in his official capacity as Chief Administrative Judge of the Unified Court System;
Defendants.

16 Civ. 3455 (GBD) ECF Case

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

ny-1241737

Case 1:16-cv-03455-GBD Document 33 Filed 07/29/16 Page 2 of 33

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ................................................................................................1
FACTS ......................................................................................................................................2
LEGAL STANDARD ................................................................................................................4
ARGUMENT .............................................................................................................................5
I. PLAINTIFFS HAVE STANDING BECAUSE THEY WILL LIKELY BE CHARGED WITH MISDEMEANORS IN BRONX CRIMINAL COURT ....................5
A. People Who Repeatedly Encountered a Policy in the Past and Are Likely to Encounter It Again Have Standing to Challenge Its Future Application...........5
B. Plaintiffs Allege that They Are Likely to Be Charged with Misdemeanors in Bronx Criminal Court .....................................................................................7
II. ABSTENTION IS IMPROPER BECAUSE PLAINTIFFS’ CLAIMS DO NOT PRESENT “EXCEPTIONAL CIRCUMSTANCES” WARRANTING THE ABDICATION OF FEDERAL JURISDICTION..........................................................10
A. The Categorical Approach to Abstention Enunciated in Sprint Fatally Undermines Defendants’ Reading of Younger ..................................................11
B. Plaintiffs Do Not Seek an Injunction Controlling the Outcome of Specific Events in Future State Prosecutions...................................................................12
C. Plaintiffs Will Not Have an Adequate Opportunity to Raise Their Claims or to Seek Appropriate Relief in Individual Misdemeanor Prosecutions ............14
D. This Court Has Jurisdiction to Issue Declaratory Relief.....................................16
III. PLAINTIFFS STATE A CLAIM FOR DENIAL OF PROCEDURAL DUE PROCESS ....................................................................................................................17
A. Plaintiffs Have a Paramount Interest in Their Liberty........................................19
B. Court Delay Makes the Right to Trial Functionally Meaningless and Poses an Unacceptably High Risk that Plaintiffs Will Be Wrongfully Deprived of Their Liberty.................................................................................................19
C. Court Delay Serves No Government Interest .....................................................20
IV. PLAINTIFFS STATE A CLAIM FOR DENIAL OF THE RIGHT TO A SPEEDY TRIAL ..........................................................................................................21
A. The Court May Consider Systemic Speedy Trial Violations ..............................21
B. Individualized Consideration of the Barker Factors Is Unnecessary for Allegations of Systemic Deprivations................................................................23
V. THE GOVERNOR IS A PROPER PARTY..................................................................25
CONCLUSION ........................................................................................................................ 25

-i-

Case 1:16-cv-03455-GBD Document 33 Filed 07/29/16 Page 3 of 33

TABLE OF AUTHORITIES

CASES

Page(s)

Aguilar v. ICE, 811 F. Supp. 2d 803 (S.D.N.Y. 2011) ................................................................................ 7, 9

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..............................................................................................................4

Barker v. Wingo, 407 U.S. 514 (1972) ................................................................................................ 21, 23, 24

Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001) ................................................................................................22

Bennett v. United States, 663 F.3d 71 (2d Cir. 2011) ..................................................................................................23

Biro v. Condé Nast, 807 F.3d 541 (2d Cir. 2015), cert. denied, 136 S.Ct. 2015 (2016) ..........................................5

Branum v. Clark, 927 F.2d 698 (2d Cir. 1991) ..................................................................................................5

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ..........................................................................................................9

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ............................................................................................................10

Cortlandt St. Recovery Corp. v. Hellas Telecommc’ns, S.a.r.l., 790 F.3d 411 (2d Cir. 2015) .............................................................................................. 4, 5

Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014) ...............................................................................................14

Davis v. City of New York, 902 F. Supp. 2d 405 (S.D.N.Y. 2012) ............................................................................ 7, 8, 9

Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340 (2d Cir. 1998) .............................................................................................. 5, 6

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104 (2d Cir. 2010) ..................................................................................................4

i
ny-1241737

Case 1:16-cv-03455-GBD Document 33 Filed 07/29/16 Page 4 of 33
Duncan v. Louisiana, 391 U.S. 145 (1968) ............................................................................................................19
Falco v. Justices of the Matrimonial Parts of Sup. Ct. of Suffolk Cnty., 805 F.3d 425 (2d Cir. 2015), cert. denied, No. 15-1280, 2016 U.S. LEXIS 3786 (U.S. June 13, 2016).....................................................................................................................12
Floyd v. City of New York, 283 F.R.D. 153 (S.D.N.Y. 2012) ....................................................................................... 6, 9
Harris v. Champion, 48 F.3d 1127 (10th Cir. 1995) .............................................................................................22
Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998) ..................................................................................................5
Kapps v. Wing, 404 F.3d 105 (2d Cir. 2005) ................................................................................................18
Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006) ............................................................................................ 12, 13
Klopfer v. North Carolina, 386 U.S. 213 (1967) ............................................................................................................24
Kraebel v. New York City Dep’t of Hous. Pres. & Dev., 959 F.2d 395 (2d Cir. 1992) ................................................................................................20
Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) ..................................................................................................20
Kuck v. Danaher, 600 F.3d 159 (2d Cir. 2010) .................................................................................... 18, 20, 21
Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013) ................................................................................ 6, 9
Los Angeles County Bar Association v. Eu, 979 F.2d 697 (9th Cir. 1992) ............................................................................. 13, 14, 16, 17
Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988) ...........................................................................................23
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................................................................................5
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) ..................................................................................................4
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Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996).......................................................................................15
Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................................................18
Mathis v. Bess, 138 F.R.D. 390 (S.D.N.Y. 1991) .........................................................................................22
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982) ............................................................................................................11
Mir v. Shah, 569 Fed. Appx. 48 (2d Cir. 2014) ........................................................................................12
Moore v. Arizona, 414 U.S. 25 (1973) ..............................................................................................................24
N.Y. State Motor Truck Ass’n v. Pataki, No. 03-CV-2386, 2004 WL 2937803 (S.D.N.Y. Dec. 17, 2004) (Daniels, J.).......................25
N.Y. Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) ................................................................................................16
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350 (1989) (“NOPSI”) ..........................................................................................11
Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y. 2002)...................................................................... 15, 22, 23
O’Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005) ................................................................................................18
O’Shea v. Littleton, 414 U.S. 488 (1974) .................................................................................................. 7, 12, 13
Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979) ................................................................................................5
Patel v. Searles, 305 F.3d 130 (2d Cir. 2002) ..................................................................................................5
People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275 (S.D.N.Y. 2000) ............................................................................ 14, 15
Peters v. Neroni, 598 Fed. Appx. 797 (2d Cir. 2015) ......................................................................................12
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Phillip v. Univ. of Rochester, 316 F.3d 291 (2d Cir. 2003) ..................................................................................................5
Roe v. City of New York, 151 F. Supp. 2d 495 (S.D.N.Y. 2001) ....................................................................................7
Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47 (2006) ................................................................................................................5
Shain v. Ellison, 356 F.3d 211 (2d Cir. 2004) ..................................................................................................6
Spinelli v. New York, 579 F.3d 160 (2d Cir. 2009) ................................................................................................20
Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013) ........................................................................................ 10, 11, 12, 14
Stauber v. City of New York, No. 03-CV-9162 (RWS), 2004 WL 1593870 (S.D.N.Y. July 16, 2004) ............................. 6, 9
Strickland v. Washington, 466 U.S. 668 (1984) ............................................................................................................22
Thomas v. Cnty. of Los Angeles, 978 F.2d 504 (9th Cir. 1992) .................................................................................................9
Tinsley v. McKay, No. CV-15-00185, 2015 WL 9690914-PHX-ROS (D. Ariz. Sept. 29, 2015)........................12
United States ex rel. Green v. Washington, 917 F. Supp. 1238 (N.D. Ill. 1996) ......................................................................................22
United States v. Cronic, 466 U.S. 648 (1984) ............................................................................................................22
United States v. Marion, 404 U.S. 307 (1971) ............................................................................................................19
United States v. Vassell, 970 F.2d 1162 (2d Cir. 1992) ..............................................................................................23
United States v. Vespi, 545 F.2d 328 (2d Cir. 1976) ................................................................................................23
Velez v. Levy, 401 F.3d 75 (2d Cir. 2005) ..................................................................................................18
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Case 1:16-cv-03455-GBD Document 33 Filed 07/29/16 Page 7 of 33 W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP,
549 F.3d 100 (2d Cir. 2008) ..................................................................................................4 Wallace v. Kern,
481 F.2d 621 (2d Cir. 1973) .......................................................................................... 12, 13 Wallace v. Kern,
499 F.2d 1345 (2d Cir. 1974) ........................................................................................ 12, 13 Wallace v. Kern,
520 F.2d 400 (2d Cir. 1975) .......................................................................................... 12, 13 Younger v. Harris,
401 U.S. 37 (1971) ..............................................................................................................11 OTHER AUTHORITIES Wright, Miller & Kane, 10B FED. PRAC. & PROC. CIV. § 2759 (3d ed.)......................................16
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PRELIMINARY STATEMENT For years, persistent delays in the processing of misdemeanor cases, court congestion, and case backlogs (collectively, “Court Delay”)1 in New York City Criminal Court, Bronx County (“Bronx Criminal Court”), have created a system that routinely deprives thousands of people charged with misdemeanors of their constitutional rights. As the New York Times noted more than three years ago, “[Bronx] courts are so dysfunctional that those accused of minor offenses—misdemeanors like trespassing or driving with a suspended license—have all but lost the fundamental guarantee of the American legal system: the right to a trial.” Compl. ¶ 129. Defendants have been aware of the constitutional violations—indeed, they have repeatedly acknowledged them—and yet they have failed to remedy them. Defendants ask the Court to avoid confronting this injustice. They claim that Plaintiffs are the wrong people to bring this lawsuit, that this Court lacks jurisdiction because Plaintiffs’ claims involve the state judiciary, and that the claims are invalid. Defendants’ arguments fail. First, Plaintiffs have standing because they seek prospective relief and plausibly allege that they will likely be subjected to unconstitutional Court Delay. Second, abstention is improper because Plaintiffs do not seek to restrain ongoing state criminal proceedings. Third, Plaintiffs state valid claims for relief because Court Delay is so endemic that it corrupts every stage of a misdemeanor case in violation of due process, and because the delays associated with even the average misdemeanor case are sufficient to establish systemic Sixth Amendment violations. What Defendants attempt to cast as “speculative,” “intrusive,” and somehow radical is, in fact, straightforward: providing forward-looking equitable relief to remedy unconstitutional state policies and practices that violate people’s essential rights.
1 All references to Court Delay are limited to misdemeanors in Bronx Criminal Court.
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FACTS2 The right to trial—and especially a speedy trial—is an illusion in Bronx Criminal Court. Court Delay has fatally undermined that right and the right to due process for the tens of thousands of people charged with low-level offenses in the Bronx each year. Bronx Criminal Court is paralyzed by a backlog of misdemeanor cases. In 2014, there were 50,703 new misdemeanors in the Bronx, significantly fewer than the number in Manhattan, Brooklyn, or Queens. Compl. ¶ 88. Yet, at the end of the year, the Bronx had 11,523 misdemeanor cases pending, more than any other borough. Id. In 2015, the number of new misdemeanors in the Bronx fell to 45,929, id. ¶ 89, but the number of pending misdemeanors climbed to 12,445. Id. A disproportionate number of cases in the Bronx have been pending longer than the 90day limit set by New York State Unified Court System (UCS) standards (the “UCS Standards”). Id. ¶ 5. In 2015, the average age of misdemeanor cases pending in the Bronx was 219 days; over 64% of cases exceeded the UCS Standards; and 19% of cases were more than 365 days old. Id. ¶ 92. 538 cases had been pending for more than two years. Id. Despite having fewer incoming misdemeanors than either Brooklyn or Manhattan, the Bronx consistently has more misdemeanors pending for more than one year than all other boroughs combined. Id. ¶¶ 11, 93. In 2014, the time it took to resolve an average misdemeanor case in the Bronx was double the 90-day limit set by the UCS Standards. Id. ¶ 5. The trial statistics are even more dismal. In 2015, there were over 45,000 new misdemeanors in the Bronx but only 98 trials. Id. ¶ 6. More than 800 new misdemeanor cases enter the system weekly, but fewer than two go to trial. Id. The few people who manage to exercise their right to trial wait on average 642 days for a bench trial and 827 days for a jury trial. Id. ¶ 7. People charged with misdemeanors in the
2 Plaintiffs respectfully refer the Court to the Complaint for a full recitation of the facts alleged.
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Bronx must wait almost twice as long for a jury trial as people in Manhattan. Id. ¶ 97. Each week, there are hundreds of misdemeanor cases scheduled for trial in which both
sides are ready to proceed. Id. ¶ 6. In the overwhelming majority of cases, however, there are no fully staffed courtrooms available to conduct the proceedings. Id. ¶ 100. The courtrooms often sit locked and empty for want of judges, clerks, court officers, or court reporters. Id. ¶¶ 6, 99. Only a small percentage of cases is actually sent to trial parts, and an even smaller percentage of cases actually proceeds to trial. Id. ¶ 101. The remaining “trial-ready” cases are adjourned, only to repeat the exercise weeks or months later. Id.
Beyond the physical and psychological toll exacted by seemingly interminable delays, each postponement brings the potential for another missed day of work, lost wages, school absence, rescheduled medical appointment, financial hardship, or childcare emergency. Id. ¶ 132. Repeated absences from work can strain relationships with employers, and potential employers are less likely to hire people with pending criminal cases. Id. For those working in the public sector or in jobs requiring state licenses, an open case may lead to immediate suspension without pay and eventual termination. Id. ¶ 133.
Defendants have been aware of these violations for years, but have failed to remedy them. Since at least 2009, the Office of Court Administration has acknowledged the need to increase trial capacity in the Bronx. Compl. ¶ 117. In April 2013, former Chief Judge Jonathan Lippman publicly lamented the “glaring problems” in the Bronx associated with Court Delay that date back “as long as [he] can remember,” and referred to Court Delay as “intolerable” and “entirely unacceptable.” Id. ¶ 120. Later that year, the UCS acknowledged that “insufficient trial capacity, exacerbated by a shortage of judges . . .,” was a key contributing factor to the problem. Id. ¶ 121. At the same time, the Governor pushed to decrease the judiciary’s budget.
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Id. ¶ 123. The UCS repeatedly promised to address Court Delay, but repeatedly failed to do so. Id.
¶ 125. Most recently, in December 2013, the UCS announced a package of reforms to address the problem. Id. ¶ 126. Some reforms never materialized, and those that did failed to remedy the constitutional violations. Id. In 2015, despite a drop in the number of misdemeanor arraignments, the number of pending cases in Bronx Criminal Court increased. Id. ¶ 89.
Each of the Plaintiffs faces an imminent risk of arrest, prosecution, and unconstitutional Court Delay in the future. They bring this action to protect against those harms, for themselves and on behalf of members of the putative class.
LEGAL STANDARD On a Rule 12(b)(1) motion to dismiss, the court must determine whether it “lacks the statutory or constitutional power to adjudicate” the case. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Plaintiffs must only allege “facts that affirmatively and plausibly suggest that [they have] standing to sue.” Cortlandt St. Recovery Corp. v. Hellas Telecommc’ns, S.a.r.l., 790 F.3d 411, 417 (2d Cir. 2015) (citation omitted). The Court must “accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (citation and internal quotations omitted). On a Rule 12(b)(6) motion, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must “accept all factual allegations as true and draw all reasonable inferences in the plaintiffs’ favor.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d
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Cir. 2010) (internal quotations and punctuation omitted). “A claim is plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015), cert. denied, 136 S.Ct. 2015 (2016) (quoting Iqbal, 556 U.S. at 678).3
ARGUMENT I. PLAINTIFFS HAVE STANDING BECAUSE THEY WILL LIKELY BE
CHARGED WITH MISDEMEANORS IN BRONX CRIMINAL COURT A motion to dismiss for lack of standing must be denied where, as here, the complaint plausibly alleges facts suggesting that Plaintiffs have standing. See Cortlandt St., 790 F.3d at 417. Though all named Plaintiffs have standing, only one must have standing for this case to proceed. Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006). Of the requirements to establish standing, Defendants question only whether Plaintiffs have satisfied the injury-in-fact requirement and whether they plausibly allege “a likelihood that [they] will be injured in the future.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983)). Defendants do not dispute that the injuries alleged here are fairly traceable to their conduct, or that those injuries can be redressed by a favorable ruling. See Safir, 156 F.3d at 344; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A. People Who Repeatedly Encountered a Policy in the Past and Are Likely to
Encounter It Again Have Standing to Challenge Its Future Application Despite Defendants’ attempt to cast Plaintiffs’ standing as speculative, the law is clear:
3 The liberal standard for assessing pleading sufficiency under Fed. R. Civ. P. 8(a) must be applied “with particular strictness” where “the complaint alleges a civil rights violation.” Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002); see also Phillip v. Univ. of Rochester, 316 F.3d 291, 293-94 (2d Cir. 2003) (“liberal pleading rules apply with particular stringency to complaints of civil rights violations.”) (citation omitted); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979).
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someone who will likely be subjected to an unconstitutional policy in the future has standing to seek forward-looking equitable relief. And those who have repeatedly been subjected to a policy in the past are especially likely to be subjected to it again in the future. In Deshawn E., a class of children challenged the New York City Police Department (NYPD) policy of coercively interrogating juveniles summoned to appear in Family Court. 156 F.3d at 342-43. The children had standing because they had been interrogated in the past and plausibly alleged that they were likely to be interrogated again in the future. See id. at 344. Similarly, in Ligon v. City of New York, residents of privately owned buildings patrolled by the NYPD challenged the NYPD policy of stopping people outside those buildings without reasonable suspicion. 925 F. Supp. 2d 478, 484-85 (S.D.N.Y. 2013). The named plaintiffs had standing because they frequented those buildings, had been stopped multiple times outside those buildings in the past, and were “likely” to be stopped again in the future.4 Id. at 522.
Courts routinely apply these principles where plaintiffs who have repeatedly encountered law enforcement challenge systematic law enforcement policies that will affect them in likely future encounters. For example, a man who was stopped and frisked four times was likely to be stopped and frisked again and therefore had standing to enjoin the NYPD’s “stop and frisk” policy. See Floyd v. City of New York, 283 F.R.D. 153, 169 (S.D.N.Y. 2012). A woman who attended three antiwar demonstrations while carrying a purse was likely to do so again and had standing to enjoin a policy of searching protestors’ bags. Stauber v. City of New York, No. 03CV-9162 (RWS), 2004 WL 1593870, at *18 (S.D.N.Y. July 16, 2004). Participants in a needle exchange program who had previously been arrested had standing to enjoin a policy of harassing
4 In contrast, an attorney with no prior criminal record who was once arrested and strip-searched in a Nassau County jail lacked standing to challenge the strip-search policy because he did not allege “the likelihood of a future encounter with the Nassau County police likely to result in a subsequent unconstitutional strip search.” Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004).
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intravenous drug users in known drug areas. See Roe v. City of New York, 151 F. Supp. 2d 495, 503-04 (S.D.N.Y. 2001). And a family whose home was visited twice in thirteen months by immigration officers had standing to enjoin a policy of unconstitutional searches during immigration raids because their home was likely to be searched again. See Aguilar v. ICE, 811 F. Supp. 2d 803, 827 (S.D.N.Y. 2011). In short, “[t]he possibility of recurring [future] injury ceases to be speculative when actual repeated incidents are documented.” Davis v. City of New York, 902 F. Supp. 2d 405, 444 n.225 (S.D.N.Y. 2012) (citation and internal quotation omitted).
Defendants ignore this body of law applying well-established standing principles to analogous facts. Citing O’Shea v. Littleton, 414 U.S. 488, 491-92 (1974), Defendants argue that a “theoretical sequence” of events ending in criminal prosecution cannot confer standing. Ds’ Mem. 10. But Defendants ignore why the O’Shea plaintiffs lacked standing under the facts of that case: there was a complete “absence of allegations” that they would be charged with crimes in the future. O’Shea, 414 U.S. at 496. As the Court found, “The nature of [plaintiffs’] activities is not described in detail and no specific threats [of prosecution] are alleged to have been made against them.” Id. at 497. Here, in contrast, Plaintiffs have candidly alleged why they will likely be charged with misdemeanors in Bronx Criminal Court. Plaintiffs are regularly arrested for (low-level, nonviolent) unlawful conduct, see, e.g., Compl. ¶¶ 73, 83, 86, or lawful conduct regularly misperceived as unlawful, see id. ¶¶ 72, 80. As a result, they will likely again be arrested and charged with misdemeanors in Bronx Criminal Court.
B. Plaintiffs Allege that They Are Likely to Be Charged with Misdemeanors in Bronx Criminal Court
Drawing all reasonable inferences in Plaintiffs’ favor, as the Court must, the Complaint more than plausibly alleges that Plaintiffs are likely to be charged with misdemeanors in Bronx Criminal Court:
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• Christopher Trowbridge has struggled with heroin addiction for the past eighteen years and has spent multiple periods in detox and rehabilitation facilities. Id. ¶ 84. Mr. Trowbridge’s addiction has led to multiple arrests and prosecutions, and he has been prosecuted in Bronx Criminal Court for substance-abuse related charges at least six times since 2008. Id. ¶ 85. Mr. Trowbridge continues to suffer from a long-term drug addiction and will likely be arrested and prosecuted for his illegal drug use in the Bronx again. Id. ¶ 86.
• Due to ongoing medical and psychiatric conditions, Juan Ortiz experiences episodes of severe disorientation. Id. ¶ 82. During these episodes, Mr. Ortiz compulsively takes items from stores without paying. Id. Between December 2012 and March 2015, Mr. Ortiz was arrested and prosecuted fourteen times in Bronx Criminal Court for the misdemeanors of petit larceny and/or possession of stolen goods. Id. Mr. Ortiz cannot control his behavior during these episodes and will likely be arrested and prosecuted in the Bronx again. Id. ¶ 83.
• Michael Torres works in the construction industry as a glazier, installing windows and aluminum panels on high-rise buildings. Id. ¶ 63. As part of his work, he uses a legal folding knife. Id. ¶ 72. People are regularly arrested and prosecuted in the Bronx for possessing such knives. Id. Mr. Torres was already wrongfully arrested and prosecuted for this offense once before. Id. Mr. Torres is also likely to be arrested and prosecuted for unlicensed driving. Id. ¶ 73. Mr. Torres has been unable to travel to Florida to clear a license suspension he received there. Id. Despite having a suspended license for the past six years, Mr. Torres has been required to drive to get to remote work sites not served by public transportation. Id. Mr. Torres has already been prosecuted for unlicensed driving twice. Id.
• Ronnie Pagan’s girlfriend and their four children live in a New York City Housing Authority (NYCHA) apartment building in the South Bronx. Id. ¶ 80. Mr. Pagan regularly visits them. Id. Due to documented trespass enforcement practices in NYCHA buildings, Mr. Pagan is routinely stopped and—because his identification shows a Manhattan home address—has been repeatedly arrested for trespassing in his children’s building. Id. Because Mr. Pagan continues to visit his girlfriend and their children in a Bronx NYCHA residence, he will likely be arrested and prosecuted again. Id.
In light of their life circumstances and their conduct, it is plainly plausible to infer that Plaintiffs
will be arrested and prosecuted again in the Bronx. See id. ¶¶ 72-73, 80, 83, 86.
As discussed above, Plaintiffs’ allegations of future prosecution are especially plausible
in light of their histories of past prosecution. See Davis, 902 F. Supp. 2d at 444 n.225. Even as
few as two past encounters with law enforcement suffice to establish a likelihood that similar
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encounters will occur in the future. See, e.g., Ligon, 925 F. Supp. 2d at 522 (two stops); Floyd, 283 F.R.D. at 169 (four stops); Aguilar, 811 F. Supp. 2d at 827 (two searches); Stauber, 2004 WL 1593870, at *18 (three protests). Moreover, Plaintiffs candidly acknowledge that they will continue to engage in similar behavior in the future. See Compl. ¶¶ 73, 83, 86.
Contrary to Defendants’ argument, there is no “attenuated chain of possibilities” between Plaintiffs’ likely future conduct and their likely future prosecution in Bronx Criminal Court. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013); see Ds’ Mem. 9-10. The Clapper plaintiffs’ claims rested on the remote and speculative possibility that the Government would attempt to intercept their communications with people outside the United States, would succeed, and would invoke a particular statute in doing so. See Clapper, 133 S. Ct. at 1148. Here, in contrast, Plaintiffs expressly allege that they regularly engage in low-level, nonviolent, unlawful conduct in the Bronx. See, e.g., Compl. ¶¶ 73, 82, 84.
Moreover, that Plaintiffs are Black and Latino men who engage in such conduct in the Bronx is not irrelevant to the standing inquiry. Compl. ¶¶ 63-86. Courts have found support for standing where policies and practices disproportionately impact or target specific communities. See, e.g., Thomas v. Cnty. of Los Angeles, 978 F.2d 504, 507-08 (9th Cir. 1992) (plaintiffs had standing where, inter alia, alleged police misconduct targeted people in a specific geographic area); Floyd, 283 F.R.D. at 169-70; Ligon, 925 F. Supp. 2d at 522; Davis, 902 F. Supp. 2d at 444-45. Here, “the disproportionate number of Blacks and Latinos, as compared to Whites, who become entangled in the criminal justice system[]” in New York City is well documented and has been recognized by courts in this district. Floyd, 283 F.R.D. at 159-60 (discussing “extensively documented racial disparities in the rates of stops, arrests, convictions, and sentences . . . .”); see also Compl. ¶ 10 (“in Bronx Criminal Court, people of color make up 95%
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of all misdemeanor arraignments . . . .”). The heightened risk of arrest and prosecution for Black and Latino men further confirms the plausibility of Plaintiffs’ claims that they are likely to be arrested and prosecuted in Bronx Criminal Court in the future.
How long it takes to resolve Plaintiffs’ future cases is immaterial. Cf. Ds’ Mem. 9-10. Plaintiffs allege that anyone forced to defend themselves in a fundamentally unfair system with no meaningful opportunity to promptly dispute the charges or challenge the government’s proof suffers constitutional injury. See Compl. ¶¶ 9, 19, 87-103, 138-39. Court Delay makes trials, and especially speedy trials, illusory for everybody. No one has a meaningful, timely opportunity to defend his liberty. In response, many people plead guilty to avoid the enormous costs of returning to court for months or years. Having plausibly alleged that they will likely be prosecuted on misdemeanor charges in Bronx Criminal Court, plaintiffs have standing to bring these claims challenging unconstitutional Court Delay. II. ABSTENTION IS IMPROPER BECAUSE PLAINTIFFS’ CLAIMS DO NOT
PRESENT “EXCEPTIONAL CIRCUMSTANCES” WARRANTING THE ABDICATION OF FEDERAL JURISDICTION Federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given them.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (citations omitted). Defendants urge this Court to abdicate a core function—adjudicating constitutional questions on the merits—while ignoring the Supreme Court’s recent restatement of its abstention jurisprudence in Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013). The omission is striking. As Sprint makes clear, the circumstances under which federal courts may abstain from exercising jurisdiction are rare and highly circumscribed, and none is present here. See Sprint, 134 S. Ct. at 588. Because none of the Plaintiffs has a pending criminal prosecution, and because Plaintiffs do not seek relief that would require this Court to restrain or control any pending prosecution now or in the future, Defendants’ arguments fail.
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A. The Categorical Approach to Abstention Enunciated in Sprint Fatally Undermines Defendants’ Reading of Younger
The interpretation of the abstention doctrine advanced by Defendants is both overbroad and directly contradicted by the Supreme Court’s decision in Sprint and subsequent Second Circuit case law. In Sprint, the Court clarified its categorical approach to abstention, limiting application of abstention under Younger v. Harris, 401 U.S. 37 (1971) to the three threshold “exceptional circumstances” first enumerated in New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350 (1989) (“NOPSI”): (1) “parallel, pending state criminal proceeding[s]”; (2) ongoing civil enforcement proceedings; and (3) “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Sprint, 134 S. Ct. at 588 (quotation omitted); see also id. at 587 (“Younger extends to the three ‘exceptional circumstances’ identified in NOPSI, but no further.”). Outside these three “exceptional” categories, abstention is improper. Id. at 592.5
The logic underlying Defendants’ arguments was firmly rejected in Sprint. While federalism and comity concerns may, broadly speaking, inform federal courts’ decision-making whenever federal litigation implicates state court proceedings—such as in the crafting of remedies—the blunt tool of abstention is reserved for “exceptional circumstances” presenting the narrow, specific, and unique evil the Court sought to avoid in Younger itself: restraint of ongoing state criminal proceedings. Younger, 401 U.S. at 39, 43-44 (abstention appropriate where plaintiff sought federal injunction restraining his ongoing individual state criminal prosecution based on constitutional challenge to underlying criminal statute). As the Second Circuit’s post-
5 Specifically, the Court clarified that the three-part test derived from Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982) that was previously applied in the Second Circuit only applies if the court has first established that the case falls squarely into one of the NOPSI categories. Sprint, 134 S. Ct. at 587 (“The three Middlesex conditions . . . were not dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Younger.” (emphasis in original)).
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Sprint cases make clear, the threshold question is whether there is an ongoing parallel state criminal proceeding. See Falco v. Justices of the Matrimonial Parts of Sup. Ct. of Suffolk Cnty., 805 F.3d 425, 427 (2d Cir. 2015) (district court erred in failing to adhere to “the straightforward categorical approach required by Sprint.”), cert. denied, No. 15-1280, 2016 U.S. LEXIS 3786 (U.S. June 13, 2016); Mir v. Shah, 569 Fed. Appx. 48 (2d Cir. 2014) (Second Circuit’s pre-Sprint “important state interest” formulation has been replaced by Sprint’s categorical approach); Peters v. Neroni, 598 Fed. Appx. 797, 798 (2d Cir. 2015) (same). Where, as here, the answer is “no,” abstention is improper.
B. Plaintiffs Do Not Seek an Injunction Controlling the Outcome of Specific Events in Future State Prosecutions
Defendants urge this Court to abstain under O’Shea v. Littleton, 414 U.S. 488, Wallace v. Kern, 481 F.2d 621 (2d Cir. 1973) (Wallace I), Wallace v. Kern, 499 F.2d 1345 (2d Cir. 1974) (Wallace II), Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975) (Wallace III) (collectively, “Wallace Cases”), and Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006). O’Shea abstention, however, is not a standalone doctrine, but merely a variation of Younger. See O’Shea, 414 U.S. at 499, 500; see also Tinsley v. McKay, No. CV-15-00185, 2015 WL 9690914-PHX-ROS, at *15 (D. Ariz. Sept. 29, 2015) (“O’Shea abstention is an outgrowth of Younger.”). As Sprint makes plain, the expansive reading of Younger reflected in O’Shea and its Second Circuit progeny is no longer viable. See Sprint, 134 S. Ct. at 591 (NOPSI categories “define Younger’s scope”). Defendants do not, and cannot, cite any post-Sprint case to support their overly broad view of O’Shea because no such case exists.
Even under the overly expansive reading of Younger put forward by Defendants, O’Shea, the Wallace Cases, and Kaufman do not mandate abstention. Each of these cases involved an injunction that would have had federal courts create, implement, and enforce new rules that
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would determine substantive and procedural outcomes in individual ongoing cases. See O’Shea, 414 U.S. at 491-92 (order enjoining bond-setting, sentencing, and jury-fee practices); Wallace I, 481 F.2d at 622 (injunction against public defender’s acceptance of additional cases and order to calendar pro se motions); Wallace II, 499 F.2d at 1351 (order creating new procedural rights for pretrial detainees held in custody for over six months); Wallace III, 520 F.2d at 403 (injunction mandating new bail procedures); Kaufman, 466 F.3d at 85 (injunction that would have determined how cases were assigned among panels of judges in appellate court). No such relief is sought here.
Contrary to Defendants’ assertions, Plaintiffs do not seek relief that would determine the outcome of any procedural or substantive decision in any individual misdemeanor case, or that would require a federal “audit” or “piecemeal interruptions of . . . state proceedings by litigation in the federal courts . . . .” See O’Shea, 414 U.S. at 500. They ask this Court neither to “establish rules of practice for the state courts . . .” Wallace II, 499 F.2d at 1351, nor to “legislate and engraft new procedures upon existing state criminal practices . . . .” Wallace III, 520 F.2d at 404.
Plaintiffs’ claims stem not from the application or misapplication of substantive or procedural rules, but from the lack of structural capacity, massive case backlogs, and constitutionally deficient allocation of court resources. Indeed, a central part of the problem is that Court Delay disables the orderly and regular application of procedural rules put in place to ensure due process and speedy trial rights, such as New York’s statutory speedy trial law. See Compl. ¶ 111-115. Federal court intervention here would not “disrupt the normal course of proceedings . . .;” it would enable it. O’Shea, 414 U.S. at 501.
This case finds a more direct analogue in Los Angeles County Bar Association v. Eu, 979
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F.2d 697 (9th Cir. 1992). There, plaintiffs sought a declaratory judgment that a California law setting the number of judgeships in Los Angeles County violated both the state and federal constitutions by causing significant delays in the resolution of civil cases. Id. at 700. The Ninth Circuit held that the exercise of jurisdiction was proper even though the relief sought would “inevitably require restructuring” of the court system. Id. at 703-04; see also id. at 704 (noting that plaintiffs’ focus on “average court delays rather than the delay in any specific case” favored the exercise of jurisdiction); Courthouse News Serv. v. Planet, 750 F.3d 776, 792 (9th Cir. 2014) (“[T]hat some additional litigation may later arise to enforce an injunction does not itself justify abstaining from deciding a constitutional claim.”). In Courthouse News, the Ninth Circuit adhered to this distinction and found that the plaintiff’s request for an injunction to reform the state court’s allegedly unconstitutional practices did not warrant abstention because there were various ways the government could comply without requiring the district court to meddle in individual cases. 750 F.3d at 791. The same is true here.
C. Plaintiffs Will Not Have an Adequate Opportunity to Raise Their Claims or to Seek Appropriate Relief in Individual Misdemeanor Prosecutions
Plaintiffs will have no meaningful or adequate opportunity to raise their constitutional claims in future misdemeanor prosecutions or, more importantly, to obtain system-wide equitable relief. Even if the ability to raise federal claims in a future state court proceeding were a bar to the exercise of federal jurisdiction—which it is not, see Sprint, 134 S. Ct. at 588—there is not, in fact, an adequate opportunity to raise claims alleging systemic violations of federal constitutional law in an individual misdemeanor case. For precisely this reason, “abstention in civil rights cases brought under § 1983 is particularly disfavored because such cases are meant to redress inadequate state law remedies.” People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 288 (S.D.N.Y. 2000) (citation omitted); see also id. at 291 (finding that
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Family Court could not “adequately consider plaintiffs’ claims in the context of a multi-faceted lawsuit challenging a system-wide policy rather than . . . actions in individual cases.”).
Plaintiffs bring this suit on behalf of a putative class of thousands of people who will be subjected to a criminal court incapable of ensuring basic constitutional rights. Their claims implicate the allocation of judicial and other court resources across a court system that processes tens of thousands of misdemeanor cases per year. That Plaintiffs may be able to raise individual constitutional speedy trial claims in future prosecutions does not make Bronx Criminal Court a suitable forum for Plaintiffs to litigate their claims or to obtain a remedy for systemic constitutional violations. Cf. id. at 290 (“Although the Court agrees that plaintiffs can make constitutional arguments in the Family Court, the Court does not agree that child neglect proceedings afford plaintiffs an adequate opportunity to raise their present claims.”). Plaintiffs would not be able to request declaratory relief or an injunction to remedy the systemic violations. See id. at 286-87 (abstention inappropriate where plaintiffs sought declaratory relief and an injunction that could not be granted by Family Court); see also Nicholson v. Williams, 203 F. Supp. 2d 153, 229-32 (E.D.N.Y. 2002); Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 688 (S.D.N.Y. 1996).
Defendants fundamentally misconstrue the core of Plaintiffs’ Complaint. Plaintiffs seek prospective relief because they face the imminent threat of being subjected to a criminal justice system incapable of providing meaningful process within a meaningful amount of time consistent with the Constitution. The violation manifests as soon as a person is arraigned and has to make decisions about proceeding in a system tainted by unconstitutional Court Delay. Waiting for a constitutional speedy trial claim to “ripen” in an individual criminal case is not an adequate remedy to address these concerns.
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D. This Court Has Jurisdiction to Issue Declaratory Relief Courts must consider five factors when entertaining a declaratory judgment action: (i) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; (ii) whether a judgment would finalize the controversy and offer relief from uncertainty; (iii) whether the proposed remedy is being used merely for procedural fencing or a race to res judicata; (iv) whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and (v) whether there is a better or more effective remedy. N.Y. Times Co. v. Gonzales, 459 F.3d 160, 167 (2d Cir. 2006) (internal quotations and citations omitted). The factors weigh in favor of the exercise of jurisdiction here. Because declaratory relief would clarify and shift the burden to remedy Court Delay to the parties with the power to do so, the first two factors weigh in favor of a simple declaration of rights and liability. The Ninth Circuit reached a nearly identical conclusion in Los Angeles County Bar Association. There, the Court reasoned that a declaration that the California statute setting the number of judgeships in Los Angeles County led to unconstitutional delays in pending civil cases would shift the burden of fixing the problem to the policymakers in a position to implement a solution. Los Angeles Cnty. Bar Ass’n, 979 F.2d at 701 (plaintiff “adequately demonstrated that . . . it is likely that the alleged injury would be to some extent ameliorated.”). Here, unconstitutional Court Delay has persisted for years, despite widespread acknowledgment of the problem. Declaratory relief would force the Defendants to devote the appropriate resources to remedying the underlying structural and administrative problems. The fourth factor6 largely mirrors the considerations driving the Court’s abstention analysis. See Wright, Miller & Kane, 10B FED. PRAC. & PROC. CIV. § 2759 (3d ed.). And, as in the abstention context, the mere fact that Plaintiffs’ claims implicate the administration of the
6 The third factor is not relevant here.
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Bronx courts does not make the exercise of declaratory jurisdiction improper. Plaintiffs do not ask this Court to intervene in “hypothetical prosecutions.” Ds’ Mem. 17. Instead, they seek a declaration that Defendants’ acts, practices, policies, and/or omissions lead to violations of Plaintiffs’ and putative class members’ Sixth and Fourteenth Amendment rights on a systemwide basis. See Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d at 704 (declaratory jurisdiction appropriate where plaintiff chose “to frame its challenge as, in effect, a facial one, citing average court delays rather than the delay in any specific case as unconstitutional.”). The Ninth Circuit confronted precisely this issue in Los Angeles County Bar Association, ultimately finding that the exercise of declaratory jurisdiction was proper, because “the relief sought . . . would not directly require supervision of the state court system by federal judges,” even though it “would inevitably require restructuring of that system.” Id. at 703. Because Plaintiffs do not seek relief that would dictate the outcomes of substantive or procedural decisions by judges in their judicial capacities, declaratory relief would not “improperly encroach” on the judicial function of the state courts.
Finally, the fifth factor weighs heavily in favor of Plaintiffs. Plaintiffs and putative class members will not have an adequate opportunity to challenge systemic Court Delay or to request the type of declaratory and injunctive relief they seek here in the context of individual misdemeanor cases in Bronx Criminal Court. Moreover, Defendants’ failure to remedy persistent unconstitutional Court Delay, despite notice of the depth of the problem for many years, makes the need for the instant litigation clear and demonstrates that there is no “better or more effective remedy” available to Plaintiffs. III. PLAINTIFFS STATE A CLAIM FOR DENIAL OF PROCEDURAL DUE
PROCESS Defendants fundamentally misunderstand the nature of Plaintiffs’ due process claims. Plaintiffs allege violations of their procedural, not substantive, due process rights. See Compl. ¶
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139 (alleging violations of “due process right to have a trial at a meaningful time and in a meaningful manner . . . .”). Defendants, however, do not even address Plaintiffs’ procedural due process claims. Instead, they cite to a pair of cases that stand for the proposition that substantive due process claims may not lie where a particular constitutional amendment provides explicit textual support for the right asserted. See D’s Mem. 24-25 (citing Albright v. Oliver, 510 U.S. 266 (1994); Velez v. Levy, 401 F.3d 75 (2d Cir. 2005)). These cases are inapplicable here.
Plaintiffs allege that misdemeanor proceedings in Bronx Criminal Court are fundamentally unfair and seek prospective relief to prevent future constitutional violations. Plaintiffs do not seek redress for past violations of their rights. Instead, they claim that because trials are functionally unattainable in Bronx Criminal Court, Defendants’ policy and practice of Court Delay renders meaningless the entire process by which people charged with misdemeanors are supposed to defend and regain their liberty, see Kuck v. Danaher, 600 F.3d 159, 163 (2d Cir. 2010), systematically violating the right “to be heard at a meaningful time and in a meaningful manner,” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). Plaintiffs have sufficiently pled both that they have a constitutionally protected liberty interest and that Court Delay renders the existing procedures for protecting that interest inadequate under the Fourteenth Amendment. See Kapps v. Wing, 404 F.3d 105, 112 (2d Cir. 2005); O’Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005); see also Mathews, 424 U.S. at 333 (“the opportunity to be heard at a meaningful time and in a meaningful manner” is the “fundamental requirement of due process”) (citation omitted). “Their allegations form a cognizable claim under the three-factor Mathews test, which considers: (1) the private interest at stake; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value (if any) of alternative procedures; and (3) the government’s interest . . . .” See O’Connor, 426 F.3d at 197.
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A. Plaintiffs Have a Paramount Interest in Their Liberty Whenever a person is subjected to criminal prosecution, his liberty is at jeopardy. See Duncan v. Louisiana, 391 U.S. 145, 151 (1968) (jury trial forms a “barrier . . . between the liberties of the people and the prerogative of the [state]”) (quoting 4 W. Blackstone, Commentaries *349-50). That liberty interest carries through the entire criminal process. The time during which a criminal defendant stands accused but untried “may seriously interfere with [his] liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” United States v. Marion, 404 U.S. 307, 320 (1971). Because Court Delay taints the entire criminal process, there can be little question that Plaintiffs have pled a substantial liberty interest. B. Court Delay Makes the Right to Trial Functionally Meaningless and Poses an
Unacceptably High Risk that Plaintiffs Will Be Wrongfully Deprived of Their Liberty Court Delay makes trials functionally unattainable for thousands of people charged with misdemeanors in the Bronx every year. People seeking trials are forced to return to court time and time again—often for months, if not years, and often for multiple futile “trial” dates—only to be told to come back another day, because no Trial Parts are available. Compl. ¶¶ 2-6. The few people who manage to exercise their right to trial in misdemeanor cases wait on average 642 days for a non-jury bench trial and an astonishing 827 days for a jury trial. Id. ¶ 7. They face systemic deprivations of their liberty while they wait, experiencing daily disruptions to their lives and sometimes more severe consequences, such as the loss of a job, or even an opportunity to attain legal immigration status. Compl. ¶¶ 46-48; 61-62; 69-71; 132-136. Court Delay corrupts every stage of a misdemeanor case, and many plead guilty just to put an end to the mounting costs. In short, Court Delay makes trial procedures in Bronx Criminal Court ‘“inadequate to the
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point that they are meaningless or nonexistent.’” Kuck, 600 F.3d at 163 (quoting Gyadu v. Workers’ Comp. Comm’n, 129 F.3d 113 (2d Cir. 1997) (internal quotation omitted)).
The Second Circuit has allowed due process claims based on similar allegations to proceed past a motion to dismiss. In Kuck, the Second Circuit reversed a district court’s dismissal of a suit claiming procedural due process violations arising from undue administrative agency delay where the plaintiff filed a putative class action, contending “that the eighteenmonth period he waited to receive an appeal hearing before the Board [of Firearms Review Examiners] was, in light of the liberty interest at stake, excessive and unwarranted, and thus violated due process.” 600 F.3d at 163; see also Kraebel v. New York City Dep’t of Hous. Pres. & Dev., 959 F.2d 395, 405 (2d Cir. 1992) (reversing dismissal of procedural due process claim in case involving delays in certain payments to landlord per governmental program).
Similarly, in Krimstock v. Kelly, the Second Circuit reversed the trial court’s dismissal of a class action where plaintiffs—car owners whose vehicles were seized by New York City— alleged due process violations because they “often” had to wait a year or more to contest the seizure. 306 F.3d 40, 53 (2d Cir. 2002) (“to say that the forfeiture proceeding, which often occurs more than a year after a vehicle’s seizure, represents a meaningful opportunity to be heard at a meaningful time on the issue of continued impoundment is to stretch the sense of that venerable phrase to the breaking point.”); see also Spinelli v. New York, 579 F.3d 160, 174 (2d Cir. 2009) (gun dealer whose license had been suspended and inventory confiscated entitled to summary judgment on due process claim after 58-day wait to regain her license and inventory).
C. Court Delay Serves No Government Interest Defendants fail to identify an interest in maintaining the status quo. To the contrary, the former Chief Judge called Court Delay “unacceptable” and “intolerable.” See Compl. ¶¶ 119120, 127-128. Nor may Defendants justify the profound delays in bringing misdemeanor cases
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to trial as merely the result of the Bronx Criminal Court’s caseload and backlog. See Kuck, 600 F.3d at 166 (rejecting state’s argument that prolonged waits for hearings are “simply a function of the [tribunal’s] caseload and backlog.”). “For the purposes of a due process analysis, the state must articulate some reason, tied to [its] interest [in the challenged procedures], that justifies” the delay at issue. Kuck, 600 F.3d at 166. Defendants cannot do so here. Under clear Second Circuit precedent, Plaintiffs sufficiently state a procedural due process claim, and Defendants have failed to carry their burden to show that the claim should be dismissed. IV. PLAINTIFFS STATE A CLAIM FOR DENIAL OF THE RIGHT TO A SPEEDY
TRIAL Contrary to Defendants’ assertions, Plaintiffs do not seek redress for past constitutional violations of their speedy trial rights. Ds’ Mem. 21-22, n.7 (faulting named Plaintiffs for not specifying exactly how many days their own trials were delayed). Rather, they seek prospective relief to prevent speedy trial violations in the future. Because the average delays associated with misdemeanor cases in Bronx Criminal Court are so extreme, prejudicial, and unjustified, Plaintiffs properly assert systemic violations of their speedy trial rights. A. The Court May Consider Systemic Speedy Trial Violations Defendants erroneously assert that because speedy trial claims usually require case-bycase analysis, see Barker v. Wingo, 407 U.S. 514, 530 (1972), this Court is powerless to address Bronx Criminal Court’s entrenched, standard practice of routinely imposing grossly excessive trial delays on thousands of people each year that deny their Sixth Amendment right to “a speedy and public trial.” Defendants’ reliance on two sentences from an opinion issued more than forty years ago is misplaced. See Ds’ Mem. 21-22 (quoting Wallace III, 520 F.2d at 404 (“Relief from unconstitutional delays in criminal trials is not available in wholesale lots. Whether an individual has been denied his rights to a speedy trial must be determined ad hoc on a case-by-case basis.”)
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(citation omitted)). Where, as here, “the state imposes systemic barriers to [the exercise of Sixth Amendment rights], prospective injunctive relief without individualized proof of injury is necessary and appropriate.” Nicholson v. Williams, 203 F. Supp. 2d at 240.
This principle has been most fully developed in the context of the right to effective assistance of counsel. A criminal defendant alleging ineffective assistance of counsel usually must make an individualized showing that counsel’s performance was inadequate and that prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 692 (1984). The Supreme Court, however, has recognized that “[i]n certain Sixth Amendment contexts, prejudice is presumed. . . . Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.” Id.; see also United States v. Cronic, 466 U.S. 648, 658 (1984). Following this principle, the court in Nicholson determined that the government defendants “systematically deprive[d] indigents of effective counsel,” Nicholson, 203 F. Supp. 2d at 256, by creating a system of assigned counsel that was “largely a sham.” Id. at 253; see also Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001) (upholding class-wide injunction against practices interfering with attorney visits to prisoners with no individual showing of “actual injury”). Courts have also dispensed with individualized analysis in cases involving systemic delays in criminal appeals. See United States ex rel. Green v. Washington, 917 F. Supp. 1238, 1277-78 (N.D. Ill. 1996) (finding presumption of prejudice in due process context where “chronic and systemic” delays caused “wholesale denial of the right to a reasonably timely appeal” to class of habeas petitioners); see also Harris v. Champion, 48 F.3d 1127, 1132 (10th Cir. 1995); Mathis v. Bess, 138 F.R.D. 390, 397 (S.D.N.Y. 1991) (certifying class of indigent appellants challenging appellate delay under 42 U.S.C § 1983). “Where a class of litigants are systematically deprived of constitutional rights by well-defined state practice, relying on retrospective, individualized
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relief is wasteful of judicial resources and harmful to the aggrieved parties.” Nicholson, 203 F. Supp. 2d at 255; see also Luckey v. Harris, 860 F.2d 1012, 1018 (11th Cir. 1988) (class of indigent defendants stated valid Sixth Amendment claim alleging “systemic delays in the appointment of counsel”). The Nicholson analysis applies with equal force here.
B. Individualized Consideration of the Barker Factors Is Unnecessary for Allegations of Systemic Deprivations
Like the test for ineffective assistance of counsel, Barker’s four-factor test for evaluating Sixth Amendment speedy trial claims directs courts to evaluate the prejudice suffered by the accused. Compare Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011) (describing Strickland’s performance and prejudice prongs), with Barker, 407 U.S. at 530 (courts must consider “[l]ength of delay, the reasons for the delay, the defendant’s assertion of his rights, and prejudice to the defendant.”). And, as with ineffective assistance of counsel, where there are systemic barriers to the exercise of the right to a speedy trial, individualized analysis and relief are unnecessary.
The delays suffered by people in Bronx Criminal Court easily meet Barker’s threshold of being “presumptively prejudicial.” Barker, 407 U.S. at 530. Waits for trial average one year and nine months for a bench trial and two years and three months for a jury trial, Compl. ¶ 97— double and triple, respectively, the eight months that the Second Circuit has suggested is “presumptively prejudicial” for speedy trial purposes. See United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992). The delays are all the more egregious considering that they are imposed on misdemeanor defendants. See Barker, 407 U.S. at 531 (“the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”); see also United States v. Vespi, 545 F.2d 328, 333 (2d Cir. 1976) (granting speedy trial relief where defendant waited 20 months for trial on “simple and uncomplicated” charges and
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where the trial involved “few witnesses” and “lasted only 7 ½ hours”). The structural impediments to the exercise of the right to a speedy trial are simply so great in Bronx Criminal Court that prejudice may be presumed.
The prejudice, however, is not merely presumptive. Delays of the magnitude and scope of those faced by people charged with misdemeanors in the Bronx exact a significant “physical and psychological toll” and result in work and school absences, lost wages, lost jobs, disruptions to work and family life, ineligibility for state licenses, and damage to employment prospects. Compl. ¶¶ 132-136. These are exactly the types of prejudice that the speedy trial right is supposed to protect against. See Moore v. Arizona, 414 U.S. 25, 26-27 (1973) (quoting United States v. Marion, 404 U.S. 307, 320 (1971)). When the Supreme Court extended the Sixth Amendment speedy trial obligation to the states, it recognized these interests as paramount:
The pendency of the indictment may subject [the defendant] to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. . . . [I]ndefinitely prolonging this oppression, as well as the anxiety and concern accompanying public accusation . . . clearly denies the [defendant] the right to a speedy trial . . . guaranteed to him by the Sixth Amendment. . . . Klopfer v. North Carolina, 386 U.S. 213, 222 (1967) (internal citation and quotations omitted). The reasons for these delays further weight the Barker analysis in Plaintiffs’ favor. As Justice White explained in his concurrence in Barker, “crowded dockets and prosecutorial case loads” are constitutionally inadequate reasons to deny a speedy trial; “unreasonable delay in runof-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal justice system are limited and that each case must await its turn.” Barker, 407 U.S. at 537-38 (White, J., concurring). Because Plaintiffs allege that they and putative class members face structural impediments to the exercise of their right to a speedy trial, their Sixth Amendment claims must proceed.
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V. THE GOVERNOR IS A PROPER PARTY Citing cases involving the constitutionality of statutes, Defendants assert that the
Governor cannot be named as a defendant merely by virtue of his status as New York’s chief law enforcement officer. See Ds’ Mem. 25. That is correct in a different context, but irrelevant to this case. Plaintiffs allege that Governor Cuomo, acting in his official capacity, is personally responsible for failing to provide the UCS with adequate funding to satisfy the State’s basic constitutional responsibilities; he has even publicly boasted about the same. See Compl. ¶¶ 123, 125 & n.31. The Complaint also alleges that the Governor is personally aware of Court Delay, which has been thoroughly discussed in official documents and in the media. See id. ¶¶ 116-122 & nn.19-30, 129-130 & n.38. This is not a case in which Plaintiffs have failed to allege that the Governor has “any connection” to Court Delay beyond his “general duty to ensure the laws are faithfully executed.” N.Y. State Motor Truck Ass’n v. Pataki, No. 03-CV-2386, 2004 WL 2937803, at *12 (S.D.N.Y. Dec. 17, 2004) (Daniels, J.). To the contrary, Plaintiffs have plausibly alleged that Governor Cuomo is aware of pervasive Court Delay in Bronx Criminal Court; has tolerated Court Delay by doing nothing to address it; and has directly contributed to the problem by depriving the courts of needed resources.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants’ motion to dismiss.
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Dated:

July 29, 2016 Bronx, New York

THE BRONX DEFENDERS
By: /s/ Scott D. Levy
Johanna B. Steinberg Scott D. Levy 360 East 161st Street Bronx, NY 10451 (718) 838-7878 johannas@bronxdefenders.org scottl@bronxdefenders.org
EMERY CELLI BRINCKERHOFF & ABADY LLP
Matthew D. Brinckerhoff Ilann M. Maazel Douglas E. Lieb 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 mbrinckerhoff@ecbalaw.com imaazel@ecbalaw.com dlieb@ecbalaw.com
MORRISON & FOERSTER LLP
Gary S. Lee Ruti Smithline Jennifer K. Brown Katie L. Viggiani James A. Newton 250 West 55th Street New York, NY 10019 (212) 468-8000 glee@mofo.com rsmithline@mofo.com jbrown@mofo.com kviggiani@mofo.com jnewton@mofo.com

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 Case 1:16-cv-03455-GBD Document 30 Filed 06/30/16 Page 1 of 33

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------X CHRISTOPHER TROWBRIDGE, MICHAEL TORRES, RONNIE PAGAN, and JUAN ORTIZ, individually and on behalf of a class of all other similarly situated,
Plaintiffs,
-against-
ANDREW CUOMO, in his official capacity as the Governor of the State of New York, JANET DIFIORE, in her official capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System, and LAWRENCE MARKS, in his official capacity as Chief Administrative Judge of the Unified Court System,
Defendants. -----------------------------------------------------------------X

16-CV-3455 (GBD)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT

ALISSA S. WRIGHT MICHELLE LAMBERT Assistant Attorneys General
of Counsel

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants 120 Broadway, 24th Floor New York, New York 10271 Tel.: (212) 416-6035

Case 1:16-cv-03455-GBD Document 30 Filed 06/30/16 Page 2 of 33
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 3 STANDARD OF REVIEW ............................................................................................................ 5
Fed. R. Civ. P. 12(b)(1).......................................................................................................... 5 Fed. R. Civ. P. 12(b)(6).......................................................................................................... 6 ARGUMENT .................................................................................................................................. 6 I. PLAINTIFFS LACK STANDING TO BRING THIS ACTION ................................. 6
A. Plaintiffs’ Speculative Allegations of Potential Future Harm Are Insufficient to Confer Standing .................................................................................................. 8
B. Plaintiffs Fail to Allege an “Imminent” Injury Because They Cannot Show a Credible Fear of Enforcement............................................................................... 11
II. FEDERALISM AND COMITY PRINCIPLES MANDATE THE DISMISSAL OF THIS ACTION ..................................................................................................... 13 A. This Court Should Abstain From Interfering with State Criminal Court Operations ............................................................................................................. 13 B. Abstention is Warranted on Plaintiffs’ Claim for Declaratory Judgment............. 16 C. Abstention Is Appropriate Because Plaintiffs Have the Ability to Challenge Delay in the State Court Proceeding ..................................................................... 18
III. PLAINTIFFS FAIL TO STATE COGNIZABLE CLAIMS ...................................... 20 IV. THE GOVERNOR IS NOT A NECESSARY OR PROPER PARTY....................... 25 CONCLUSION............................................................................................................................. 25
i

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TABLE OF AUTHORITIES

Cases

Page(s)

Ad Hoc Comm. on Judicial Admin. v. Massachusetts, 488 F.2d 1241 (1st Cir. 1973) ..................................................................................................15

Albright v. Oliver, 510 U.S. 266 (1994).................................................................................................................24

Anderson v. Regan, 53 N.Y.2d 356 (1981) ..............................................................................................................16

APWU v. Potter, 343 F.3d 619 (2d Cir. 2003).......................................................................................................6

Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................................................................................6

Babbitt v. UFW Nat’l Union, 442 U.S. 289 (1979)...........................................................................................................11, 12

Barker v. Wingo, 407 U.S. 514 (1972).....................................................................................................19, 21, 23

Bd. of Trs. of Univ. of Ala, v. Garrett, 531 U.S. 356 (2001).................................................................................................................21

Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007)...................................................................................................................6

Calderon v. Ashmus, 523 U.S. 740 (1998).................................................................................................................18

Carver v. City of New York, 621 F.3d 221 (2d Cir. 2010).......................................................................................................7

Cent. States Southeast and Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181 (2d Cir. 2005).....................................................................................................11

Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002).......................................................................................................4

City of Los Angeles v. Lyons, 461 U.S. 95 (1983).............................................................................................................12, 13

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Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .....................................................................................................7, 8, 10
Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976).................................................................................................................18
Davis v. Lansing, 851 F.2d 72 (2d Cir. 1988).................................................................................................13, 14
Doggett v. United States, 505 U.S. 647 (1992).................................................................................................................23
Etuk v. Slattery, 936 F.2d 1433 (2d Cir. 1991).....................................................................................................7
Ex Parte Young, 209 U.S. 123 (1908).................................................................................................................16
Goonewardena v. New York, 475 F. Supp. 2d 310 (S.D.N.Y. 2007)......................................................................................21
Green v. Mansour, 474 U.S. 64 (1985)...................................................................................................................16
Hansel v. Town Court for Town of Springfield, 56 F.3d 391 (2d Cir. 1995).......................................................................................................18
Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013).....................................................................................................12
Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326 (2d Cir. 1997).......................................................................................................6
Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006).................................................................................................15, 20
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)...................................................................................................................21
Larabee v. Governor of the State of N.Y., 121 A.D.3d 162 (1st Dep’t 2014), aff’d, 2016 N.Y. LEXIS 1101 (May 10, 2016) ................16
Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) .................................................................................................15
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).............................................................................................................7, 13
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Mahon v. Ticor Title Ins. Co., 683 F.3d 59 (2d Cir. 2012).........................................................................................................6
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000).......................................................................................................5
Matter of Maron v. Silver, 14 N.Y.3d 230 (2010) ..............................................................................................................16
Miller v. Silbermann, 951 F. Supp. 485 (S.D.N.Y. 1997) ..........................................................................................20
N.Y.S. Motor Truck Ass’n v. Pataki, 2004 U.S. Dist. LEXIS 25519 (S.D.N.Y. Dec. 17, 2004) .......................................................25
New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006)...............................................................................................17, 18
Nolan v. Cuomo, 2013 U.S. Dist. LEXIS 6680 (E.D.N.Y. Jan. 16, 2013) ..........................................................25
O’Shea v. Littleton, 414 U.S. 488 (1974)...................................................................................10, 11, 12, 13, 14, 16
People v. Blakely, 34 N.Y.2d 311 (1974) ..............................................................................................................19
People v. Johnson, 38 N.Y.2d 271 (1975) ..............................................................................................................19
People v. Kendzia, 64 N.Y.2d 331 (1985) ..............................................................................................................20
People v. Staley, 41 N.Y.2d 789 (1977) ..............................................................................................................20
People v. Taranovich, 37 N.Y.2d 442 (1975) ..............................................................................................................19
People v. White, 32 N.Y.2d 393 (1973) ..............................................................................................................19
Public Service Comm'n v. Wycoff Co., Inc., 344 U.S. 237 (1952)...........................................................................................................17, 18
Quern v. Jordan, 440 U.S. 332 (1979).................................................................................................................21
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Rayborn v. Scully, 858 F.2d 84 (2d Cir. 1988).......................................................................................................23
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976)...................................................................................................................11
Smith v. Maher, 468 F. Supp. 2d 466 (W.D.N.Y. 2006) ....................................................................................19
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) .........................................................................................................7, 11
Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35 (2d Cir. 1977).......................................................................................................21
U.L. v. N.Y. State Assembly, 2014 U.S. Dist. LEXIS 11215 (S.D.N.Y. Jan. 29, 2014), aff’d 592 Fed. Appx. 40 (2d Cir. 2015), cert. denied, 136 S. Ct. 153 (2015)........................................................................21
United States v. Decastro, 682 F.3d 160 (2d Cir. 2012).......................................................................................................8
United States v. Jones, 129 F.3d 718 (2d Cir. 1997).....................................................................................................23
Velez v. Levy, 401 F.3d 75 (2d Cir. 2005).......................................................................................................25
W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100 (2d Cir. 2008)...................................................................................................6, 7
Wallace v. Kern, 481 F.2d 621 (2d Cir. 1973).....................................................................................................15
Wallace v. Kern, 499 F.2d 1345 (2d Cir. 1974); cert. den’d, 420 U.S. 947 (1975).......................................15, 21
Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975).........................................................................................11, 14, 22
Warth v. Seldin, 422 U.S. 490 (1975).......................................................................................................7, 11, 12
Whitmore v. Arkansas, 495 U.S. 149 (1990)...................................................................................................................8
Wilton v. Seven Falls Co., 515 U.S. 277 (1995).................................................................................................................17
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Younger v. Harris, 401 U.S. 3 (1971).........................................................................................................13, 14, 15
Constitutions Sixth Amendment ..............................................................................................................19, 21, 23 Eleventh Amendment.....................................................................................................................21 Fourteenth Amendment .................................................................................................................15 U.S. Constitution
Article III ........................................................................................................................... 2, 6-8 New York Constitution
Article VII, § 7 .........................................................................................................................16 Federal Statutes 28 U.S.C. § 2201 (Declaratory Judgment Act) ..............................................................................17 42 U.S.C. § 1983............................................................................................................................21 Federal Rules Fed. R. Civ. P. 12(b)(1)................................................................................................................1, 5 Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 6 State Statutes New York State Criminal Procedure Law (“CPL”)
§ 30.20......................................................................................................................................19 § 30.30......................................................................................................................................20 § 170.55....................................................................................................................................24 § 210.20....................................................................................................................................19 § 440.10....................................................................................................................................19 § 450.15....................................................................................................................................19 New York Civil Rights Law § 12...........................................................................................................................................19 Miscellaneous Authorities https://www.nycourts.gov/excellence-initiative ..............................................................................5 https://www.nycourts.gov/publications/pdfs/BronxReport11-09.pdf. .............................................4 https://www.nycourts.gov/whatsnew/pdf/investiture-remarks.pdf. .................................................5
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Defendants Andrew Cuomo, in his official capacity as Governor of the State of New York; Janet DiFiore, in her official capacity as the Chief Judge of the New York State Court of Appeals, Chief Judicial Officer of the New York State Unified Court System (“UCS”), and Chair of the Administrative Board of the New York Courts; and Lawrence Marks, in his official capacity as Chief Administrator and Chief Administrative Judge of the UCS (collectively, “Defendants”) respectfully submit this memorandum of law in support of their motion to dismiss Plaintiffs’ complaint, dated May 10, 2016 (Dkt. No.1) (“Compl.”), pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
PRELIMINARY STATEMENT Plaintiffs, four individuals who purport to sue on behalf of a putative “future” class, bring this action to challenge the constitutionality of the processing of misdemeanor charges in New York City Criminal Court, Bronx County (“Bronx Criminal Court”) under the Sixth and Fourteenth Amendments to the United States Constitution. Notably, none of the Plaintiffs currently have cases pending in Bronx Criminal Court, nor do they allege a concrete threat of imminent prosecution. Nevertheless, they seek to challenge potential delays that may occur with respect to each and every future criminal defendant facing misdemeanor charges in Bronx Criminal Court. Plaintiffs ask this Court to indiscriminately evaluate the processing of misdemeanor cases on a broad, wholesale level, and ignore the individual circumstances of each case. They ask this federal court to interject itself into the administration of New York’s state court system, despite the fact that such intrusion has far-reaching consequences and defies wellsettled comity and federalism principles. As discussed herein, dismissal of Plaintiffs’ claims is fully warranted on numerous grounds.
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First, Plaintiffs lack standing. None of the Plaintiffs are currently facing misdemeanor charges in Bronx Criminal Court, and thus none of Plaintiffs have suffered an injury-in-fact as required to confer standing. Plaintiffs’ allegations of potential future harm are wholly speculative. Therefore, there is no “case or controversy” as required by Article III of the United States Constitution, and Plaintiffs’ complaint must be dismissed. See infra, Point I.
Second, well-established precedent dictates that abstention is required when a federal court is asked to intrude into matters more properly left to the State, such as the management of the state court system that is at issue here. Given the availability of other avenues of review for purported violations of speedy trial rights at the state level, and the impropriety and unmanageability of federal oversight of state court matters, abstention is required in this instance. See infra, Point II.
Third, even if this Court reaches the merits, the complaint fails to state a claim on which relief can be granted and would still require dismissal. The law is clear that allegations of violations of speedy trial rights must be reviewed on a case-by-case basis. Multiple factors must be considered including the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Here, two of the named Plaintiffs do not assert that any past prosecutions resulted in any delay, and thus they cannot state a claim for a violation of due process or the right to a speedy trial. The remaining two Plaintiffs do not adequately assert the reason that their past prosecutions were delayed, and they fail to allege that they asserted their right in the state court proceedings, or that they were prejudiced by the delay. Therefore, they fail to state cognizable claims. See infra, Point III.
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Fourth, the Governor is not a proper party to this action. Plaintiffs do not allege that the Governor has control over the administration of misdemeanor cases in Bronx Criminal Court, and, therefore, all claims against him should be dismissed. See infra, Point IV.
Accordingly, the complaint should be dismissed, in its entirety, with prejudice. STATEMENT OF FACTS
Bronx Criminal Court is an extremely busy court that handles and resolves a large volume of misdemeanor criminal cases each year. According to the Complaint, in 2014, the court conducted 50,703 misdemeanor arraignments. Compl. ¶ 88. At the end of that year, 11,523 misdemeanor cases remained pending, meaning that over 39,000 misdemeanors were resolved. Id.
A misdemeanor criminal case may proceed through various stages. As Plaintiffs describe in their complaint, misdemeanor prosecutions begin with an arraignment. Id. ¶ 32. At each arraignment, defense counsel is assigned (if none has already been retained), the criminal defendant is informed of the charges against him or her, and a state court judge makes a bail determination. Id. Many times, criminal defendants plead guilty at their arraignments. Id. If a case is not resolved at arraignment, it proceeds to a calendar part which handles motion practice and other pretrial matters, including guilty pleas. Id. ¶ 33. While as a general rule, a criminal defendant is required to appear for his or her court dates, a judge may excuse a person charged with a misdemeanor from personally appearing in court. Id. ¶ 36.
Once all pretrial issues have been addressed, the judge asks if the parties are ready for trial. Id. ¶ 34. If both sides are ready, the judge ascertains whether any trial parts are available. Id. If they are not, the case is adjourned. Id. If both sides are ready for trial, and a trial part is available, the case is sent out for trial. Id. ¶¶ 34-35. Notably, the complaint is devoid of
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allegations that any of the four Plaintiffs currently have pending misdemeanor criminal cases at any stage of this judicial process before the Bronx Criminal Court. Id. ¶¶ 1-142.
The UCS has been actively engaged in implementing policies to improve the processing of criminal cases in Bronx County. In 2004, “[t]he court system undertook a bold experiment . . . [b]y merging the operation of the Bronx County Criminal Court into the Criminal Term of the Bronx County Supreme Court.” The Bronx Criminal Division: Merger After Five Years (2009) (“Merger Report”), p. 3, available at https://www.nycourts.gov/publications/pdfs/ BronxReport11-09.pdf.1 In doing so, two distinct courts of criminal jurisdiction were merged into an integrated Bronx Criminal Division, where for the first time, misdemeanors and felonies could be resolved in the same court, “and the full panoply of judicial and administrative resources could be brought to bear on burgeoning caseloads.” Id. While the merger initially achieved one of its primary goals – reduction of the misdemeanor caseload – the misdemeanor backlog eventually grew back to pre-merger levels. Id. at p. 9. However, while misdemeanor filings in the Bronx grew by 35% from 2004 to 2009 during the five-year pendency of the merger, the court was able to maintain the number of pending misdemeanors at pre-merger levels. Id. After five years, the court system engaged in a thorough review of the effects of the merger, identifying where it succeeded and where it did not, and issued further recommendations to improve the processing of criminal cases in the Bronx. Id.
Further, in 2008, the judiciary issued Standards and Goals Guidelines for the Disposition of Criminal Cases. Compl. ¶ 90. This administrative tool was developed “to assist the courts at every level in monitoring the progress of cases through the criminal court system.” Id. The guidelines provide the courts with the opportunity to evaluate the processing time frames for
1 The Court may properly consider this document on this motion to dismiss because it is referenced in the complaint (p.3, n.3). See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).
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cases and analyze where improvements have been made or can be made. Additionally, in 2014, the UCS created the Bronx Misdemeanor Standards and Goals Part, a specialized courtroom dedicated to processing the oldest misdemeanors in Bronx Criminal Court. Id. ¶ 94.
In furtherance of these efforts to continually improve the court system, on February 8, 2016, approximately one month after her appointment, Chief Judge DiFiore announced the Excellence Initiative, which includes a detailed and comprehensive evaluation of current processes and procedures to determine what is working well and what needs to improve in the UCS. See https://www.nycourts.gov/excellence-initiative; https://www.nycourts.gov/whatsnew/ pdf/investiture-remarks.pdf. In launching the Excellence Initiative, Chief Judge DiFiore specifically noted her commitment to investigating the causes of backlogs and delays, and stated that the court system “will analyze the case management processes in place in each court and the way our courts are administered to determine if they are working well - and then we will design ways to tackle the backlogs and fix the problems.” Id. Despite this ongoing commitment and these continuing actions and efforts, Plaintiffs bring this action seeking to have this federal court intrude in these state matters, investigate the Bronx criminal court system, and issue judgment and equitable relief with respect to the operation of that system. Such interference is improper.
STANDARD OF REVIEW Fed. R. Civ. P. 12(b)(1) “A case is properly dismissed for lack of subject matter jurisdiction under [Federal] Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff opposing a Rule 12(b)(1) motion for lack of subject matter jurisdiction “has the burden of proving by a preponderance of the evidence that it exists.” Id. “[J]urisdiction must be shown affirmatively,
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and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003).
Fed. R. Civ. P. 12(b)(6) In considering the legal sufficiency of a complaint pursuant to Fed. R. Civ. P. 12(b)(6), a court “must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The Court, however, is not required to accept as true “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard demands more than a “sheer possibility that a defendant has acted unlawfully.” Id. A complaint that merely alleges facts “consistent with” or “compatible with” liability fails to state a cognizable claim. Twombly, 550 U.S. at 557; Iqbal, 556 U.S. at 680.
ARGUMENT I. PLAINTIFFS LACK STANDING TO BRING THIS ACTION.
Plaintiffs do not have standing to bring their claims in this Court. Article III of the United States Constitution limits the subject-matter jurisdiction of the federal courts to “cases” and “controversies.” U.S. Const., art. III, § 2; Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). “In order to ensure that this ‘bedrock’ case-or-controversy requirement is met, courts require that plaintiffs establish their ‘standing’ as ‘the proper part[ies] to bring’ suit.” W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (alteration in
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original). Standing is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498 (1975). For the Court to maintain jurisdiction, it must exist “throughout the course of the proceedings.” Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir. 1991).
“The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013). To satisfy the “irreducible constitutional minimum of standing,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), Plaintiffs must demonstrate three elements: “(1) injury-in-fact, which is a ‘concrete and particularized’ harm to a ‘legally protected interest’; (2) causation in the form of a ‘fairly traceable’ connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.” W.R. Huff, 549 F.3d at 106-07 (citing Lujan, 504 U.S. at 560-61). The injury-in-fact requirement “helps to ensure that the plaintiff has a ‘personal stake in the outcome of the controversy.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (citing Warth, 422 U. S. at 498.
Plaintiffs have the burden of establishing these essential Article III requirements for each plaintiff, as against each defendant, for each claim asserted, and for each type of relief sought. Carver v. City of New York, 621 F.3d 221, 225 (2d Cir. 2010). Nevertheless, Plaintiffs purport to bring claims on behalf of themselves and “all persons who will be prosecuted in Bronx Criminal Court with a misdemeanor or lesser offense as the top charge in their complaint,” even though standing is entirely lacking.
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A. Plaintiffs’ Speculative Allegations of Potential Future Harm Are Insufficient to Confer Standing. Plaintiffs bring this action challenging the administration of misdemeanor prosecutions in
Bronx Criminal Court. They claim that there are excessive delays in the processing of misdemeanor cases, resulting in violations of the rights of those being prosecuted. Compl. ¶¶ 138-142. However, not one of the named plaintiffs is currently being prosecuted for a misdemeanor in Bronx Criminal Court, and thus not one of the named plaintiffs is currently experiencing any delay in the processing of his case. There is not a single allegation connecting any of the named plaintiffs to a current, pending, delayed misdemeanor case in the Bronx. Compl. ¶¶ 1-142. Therefore, there is no “case or controversy,” and Plaintiffs lack standing.
Plaintiffs attempt to remedy this fatal deficiency by asserting that they are “likely to be arrested, prosecuted, and subjected to unconstitutional Court Delay in Bronx Criminal Court.” Compl. ¶ 72. Yet that is precisely the sort of “highly speculative fear” that does not meet the requirements of Article III. See Clapper, 133 S. Ct. at 1148. The Supreme Court has made clear that “threatened injury must be certainly impending to constitute injury in fact,” and “[a]llegations of possible future injury are not sufficient.” Id. at 1147 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphasis in Clapper); see also Decastro, 682 F.3d at 164. None of the Plaintiffs meet that strict standard. In fact, all four named plaintiffs rely on hypothetical assertions of future arrests, prosecutions, and delays, none of which are “certainly impending,” and all of which are based purely on conjecture and speculation. Compl. ¶¶ 63-86.
Specifically, Plaintiff Ronnie Pagan relies on an allegation that because he “continues to visit his girlfriend and their children in a Bronx NYCHA [New York City Housing Authority] residence, he will likely be arrested and subjected to unconstitutional Court Delay in Bronx Criminal Court again.” Compl. ¶ 79. Plaintiff Juan Ortiz claims that he frequently shoplifts as a
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result of certain medication he takes, and “[f]or the same reasons that Mr. Ortiz was arrested and prosecuted 14 times, he will likely be arrested and prosecuted in the Bronx again and subjected to unconstitutional Court Delay in Bronx Criminal Court.” Compl. ¶ 83. Notably, he does not claim that he suffered any delays in connection with his prior prosecutions. Compl. ¶¶ 81-83.
Similarly, Plaintiff Christopher Trowbridge claims that he has been prosecuted in Bronx Criminal Court at least six times since 2008 due to heroin addiction, Compl. ¶ 85, but he does not allege that any of those prosecutions resulted in excessive, much less unconstitutional, delays, Compl. ¶¶ 84-86. Yet he claims that due to his addiction he “will likely be arrested and prosecuted in the Bronx again and subjected to unconstitutional Court Delay in Bronx Criminal Court.” Compl. ¶ 86. The fourth plaintiff, Michael Torres, claims that he “is likely to be arrested, prosecuted, and subjected to unconstitutional Court Delay in Bronx Criminal Court” because his job requires him to carry a knife to and from work, and although legal, he was once arrested and prosecuted for possessing a knife in the Bronx in 2013. Compl. ¶ 72. Mr. Torres also alleges that he is “likely to be arrested and prosecuted for unlicensed driving as a result of a license suspension he received in Florida and the subsequent suspension of his privilege to drive in New York.” Compl. ¶ 73. Mr. Torres claims that he continues to drive, even though his license has been suspended for the past six years, and he has been prosecuted for unlicensed driving on at least two occasions. Compl. ¶ 73.
Such conjecture is insufficient to confer standing on any plaintiff. Plaintiffs’ theory of standing rests on multiple speculative prospects: (1) that Plaintiffs may violate valid criminal laws in the future or face arrest in Bronx County; (2) that they may be charged with misdemeanors for such hypothetical arrests; (3) that they may be prosecuted in Bronx Criminal Court for these hypothetical arrests charging hypothetical misdemeanor crimes; (4) that such
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hypothetical prosecutions may be delayed to such an extent as to violate their constitutional rights; and (5) that Plaintiff’s theoretical misdemeanor criminal cases in Bronx Criminal Court may be delayed because of the judicial process. If any of these events do not occur in the way contemplated by Plaintiffs, their alleged basis for standing evaporates. This theory “relies on a highly attenuated chain of possibilities” and “does not satisfy the requirement that threatened injury must be certainly impending.” See Clapper, 133 S.Ct. at 1148.
The United States Supreme Court has explicitly held that such a theoretical sequence of events based on conjecture is insufficient to confer standing. In O’Shea v. Littleton, the plaintiffs alleged a pattern of racial discrimination in various aspects of the criminal justice system, including bond-setting, sentencing, and jury-fee assessments. 414 U.S. 488, 491-92 (1974). Similar to Plaintiffs here, the O’Shea plaintiffs were unable to demonstrate standing, because the “the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” Id. at 496. The Supreme Court stated:
Apparently, the proposition is that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. But it seems to us that attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture. Id. That logic is equally applicable here, where Plaintiffs rely on a series of highly tenuous assumptions concerning “valid” laws, their enforcement, and hypothetical prosecutions, which are insufficient to confer standing. The fact that Plaintiffs bring this action as a putative class action does not salvage their lack of standing. Named plaintiffs are required to plead facts showing that they personally suffered an injury-in-fact regardless of whether they bring their action individually or on behalf
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of a putative class. “‘[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendant[ ], none may seek relief on behalf of himself or any other member of the class.’” Cent. States Southeast and Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 199 (2d Cir. 2005) (quoting O’Shea, 414 U.S. at 494). “‘[T]he named class plaintiffs ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’” Id. (quoting Warth, 422 U.S. at 502); see also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 n. 20 (1976) (“That a suit may be a class action, however, adds nothing to the question of standing . . . .”).2 Therefore, because Plaintiffs have not suffered an injury-in-fact, they lack standing and the complaint should be dismissed.
B. Plaintiffs Fail to Allege an “Imminent” Injury Because They Cannot Show a Credible Fear of Enforcement. Similarly, Plaintiffs cannot overcome their lack of standing by attempting to recast their
claims as a “pre-enforcement” challenge. A plaintiff can only bring a pre-enforcement suit when he “has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979). A plaintiff only has standing to make a pre-enforcement challenge “under circumstances that render the threatened enforcement sufficiently imminent,” Susan B. Anthony List, 134 S.Ct. at 2342, and “when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative.” Babbitt, 442 U.S. at 302. A plaintiff “must demonstrate a realistic
2 Further, the determination of whether an individual’s constitutional speedy trial rights have been violated is factspecific and cannot be adjudicated as a class action. See infra, Point III (citing Wallace v. Kern, 520 F.2d 400, 40506 (2d Cir. 1975)).
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danger of sustaining a direct injury as a result of the statute’s operation of enforcement.” Id. at 298. The threat of imminent injury must be “distinct and palpable,” Warth, 422 U.S. at 501, not merely “abstract,” O'Shea, 414 U.S. at 494.
Plaintiffs’ speculative allegations concerning their hypothetical arrests and theoretical prosecutions cannot support a pre-enforcement challenge. As an initial matter, Plaintiffs’ assertions do not demonstrate an “imminent” arrest, much less an imminent prosecution or excessively delayed prosecution. Plaintiff’s fear of arrest, even if well-founded, is not sufficiently certain or forthcoming to establish standing.
Further, the fundamental principle of “fear based” standing is that a plaintiff should not be required to breach the very statute or provision that is being challenged prior to bringing suit for standing to exist. See Hedges v. Obama, 724 F.3d 170, 188-89 (2d Cir. 2013). But here, Plaintiffs do not challenge a particular statute or provision. Indeed, they do not challenge any specific law, or even a concrete practice. Instead, Plaintiffs challenge a general “process” that affects individuals in different ways, and which may or may not occur. That type of speculation, and challenge to an individualized situation, does not fall under the narrow contours of what is permissible as a pre-enforcement action. Lyons, 461 U.S. at 105-106 (“[i]n order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion” that the challenged action “always” occurs or that there exists an official policy of such action). Here, Plaintiffs cannot reasonably argue that all misdemeanor cases presently before the Bronx Criminal Court are delayed, or that the court system incorporates a practice of delay for all cases before the
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tribunal to be deemed an official policy for such action. Thus, any alleged fear of arrest3 is not synonymous with standing for these Plaintiffs.
Finally, the fact that some Plaintiffs allege that they have been arrested and prosecuted in Bronx County in the past does not salvage their claims. “‘Past exposure to [allegedly] illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” Lyons, 461 U.S. at 102 (quoting O’Shea, 414 U.S. at 495-96). And a profession of “‘some day’ intentions -- without any description of concrete plans, or indeed even any specification of when the some day will be -do not support a finding of the ‘actual or imminent’ injury that our cases require.” See Lujan, 504 U.S. at 564. Therefore, Plaintiffs lack standing to bring this lawsuit, and their claims should be dismissed.
II. FEDERALISM AND COMITY PRINCIPLES MANDATE THE DISMISSAL OF THIS ACTION.
A. This Court Should Abstain From Interfering with State Criminal Court Operations.
Plaintiffs’ complaint also fails because it asks this Court to violate principles of federalism and comity, warranting abstention. Plaintiffs seek declaratory judgment and equitable relief aimed at controlling state court criminal proceedings that may potentially occur in the future. This is the type of interference that is prohibited by Younger v. Harris, 401 U.S. 3 (1971), and federalism principles.
Under the doctrine set forth in Younger and its progeny, a federal court must abstain from intervening in ongoing state criminal proceedings when adequate state relief is available. See 401 U.S. at 54; see also Davis v. Lansing, 851 F.2d 72, 76 (2d Cir. 1988) (“[I]nterference in
3 Plaintiffs’ fear of arrest also does not confer standing because the named Defendants do not have any control over whether or not Plaintiffs are arrested or prosecuted with misdemeanors.
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pending [state court criminal] proceedings is inappropriate unless state law clearly bars the interposition of . . . federal constitutional claims.” (quotations, alterations and citations omitted)). While Plaintiffs attempt to avoid this prohibition by purporting to bring claims on behalf of putative future criminal defendants, as opposed to individuals currently facing misdemeanor charges, the underlying abstention principles still apply.4
The United States Supreme Court has expressly prohibited intrusion by the federal district courts into the operations of state court systems. As previously noted, in O’Shea, the plaintiffs alleged a pattern of racial discrimination in various aspects of the criminal justice system, including bond-setting, sentencing, and jury-fee assessments. 414 U.S. at 491-92. The Supreme Court held that abstention was warranted, notwithstanding the serious nature of the allegations, because the plaintiffs were seeking “an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials.” Id. at 500. That would require “nothing less than an ongoing federal audit of state criminal proceedings” that would be inconsistent with Younger. Id. Given the availability of other avenues of review (including direct appeal) to correct any alleged constitutional violations, and the “abrasive and unmanageable intercession which the injunctive relief they seek would represent,” the Supreme Court concluded that abstention was required. Id. at 504.
The Second Circuit has remained committed to preventing the intrusion of federal courts into the state court system, even where plaintiffs raise constitutional challenges. In a series of decisions, the Second Circuit invalidated a district court’s issuance of an injunction providing for new bail hearing procedures, because such relief would require the type of federal court surveillance forbidden by O’Shea and Younger. See Wallace v. Kern, 520 F.2d 400, 405-06 (2d
4 Even if this action was brought by Plaintiffs with current pending cases in Bronx Criminal Court, the claims would be expressly barred by Younger.
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Cir. 1975); Wallace v. Kern, 499 F.2d 1345, 1348 (2d Cir. 1974); cert. den’d, 420 U.S. 947 (1975); Wallace v. Kern, 481 F.2d 621, 622 (2d Cir. 1973). The Court of Appeals stated: “This is not the proper business of the federal courts, which have no supervisory authority over the state courts and have no power to establish rules of practice for the state courts.” Wallace, 499 F.2d at 1351.
More recently, in Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006), the Second Circuit held that a federal district court must abstain from hearing a lawsuit seeking, inter alia, a declaration that the system for assigning cases in the Second Department of the Appellate Division violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and an injunction requiring the New York State legislature to establish a new system of assigning appeals in the Second Department. The Second Circuit held that abstention was required because the relief sought “would be . . . intrusive in the administration of the New York court system.” Kaufman, 466 F.3d at 86. The Second Circuit expressly noted that “under the principle known as comity a federal district court has no power to intervene in the internal procedures of the state courts.” Id. at 86-87 (quotation and citation omitted). The Court of Appeals further held that “the federal courts cannot ‘legislate and engraft new procedures upon existing’” state practices, and that such interference by the federal court “would violate principles of comity established in Younger.” Id. (quotation omitted); see also Luckey v. Miller, 976 F.2d 673, 676-79 (11th Cir. 1992) (holding that the federal courts must abstain from hearing claims that sought structural reforms of Georgia’s indigent defense system); Ad Hoc Comm. on Judicial Admin. v. Massachusetts, 488 F.2d 1241, 1245-46 (1st Cir. 1973) (affirming dismissal of class action challenging court delays because “[i]n this nation, the financing and, to an important extent, the organization of the judicial branches, federal and state, have been left to the people, through their legislature . . . it
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would be both unprecedented and unseemly for a federal judge to attempt a reordering of state
priorities”).
Here, Plaintiffs are seeking precisely the type of oversight and intrusion into the state
court system that is prohibited by binding precedent. Plaintiffs assert a number of complaints
concerning the processing of misdemeanor cases in Bronx Criminal Court, none of which this Court has the power to address.5 While Plaintiffs purport to seek “appropriate equitable relief”
in this action, any equitable relief granted by this Court would constitute a gross intrusion into
state criminal court functions. Such “intrusion of the equitable power of the federal courts into
the daily conduct of state criminal proceedings is in sharp conflict with the principles of
equitable restraint” required by the United States Supreme Court. O’Shea, 414 U.S. at 502. This
Court should accordingly abstain from hearing Plaintiffs’ challenges to state court criminal
proceedings, which are properly left to the State.
B. Abstention is Warranted on Plaintiffs’ Claim for Declaratory Judgment. Plaintiffs’ claim for a declaratory judgment is similarly unwarranted. Any request for
retrospective declaratory relief concerning past misdemeanor cases in Bronx Criminal Court is
barred by sovereign immunity. See Ex Parte Young, 209 U.S. 123 (1908); see also Green v.
Mansour, 474 U.S. 64, 68 (1985). Even if Plaintiffs purport to challenge allegedly “ongoing
violations” in an attempt to obtain prospective declaratory relief, as required under Ex Parte
5 To the extent Plaintiffs challenge the funding of the state court system, such a claim is non-justiciable as this Court does not have the authority to issue any remedy with respect to state funding, nor do any of the Defendants have the authority to unilaterally alter New York State’s budget. Plaintiffs seemingly recognize this, as they do not seek monetary damages, yet their complaint contains allegations concerning allegedly inadequate funding for the court system. Compl. ¶¶ 118-19, 123-24; but see Anderson v. Regan, 53 N.Y.2d 356 (1981) (noting that section 7 of article VII of the New York Constitution “requires that there be a specific legislative appropriation each time that moneys in the State treasury are spent”). Nor can this Court order or direct the appropriation of certain funds; Larabee v. Governor of the State of N.Y., 121 A.D.3d 162, 170 (1st Dep’t 2014), aff’d, 2016 N.Y. LEXIS 1101 (May 10, 2016) (“[T]he judiciary, as a coequal branch of government, simply cannot constitutionally tell the legislature to appropriate or pay any amount of money for any specific purpose. . . . [A]ny mandate to pay those sums would encroach upon the budgeting powers of the Legislature and thus would violate the Separation of Powers Doctrine.”) (citing Matter of Maron v. Silver, 14 N.Y.3d 230 (2010)).
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Young, Plaintiffs do not allege facts showing that they have standing to bring such claims, given that any “ongoing violation” is not currently harming Plaintiffs. See supra, Point I.
Nonetheless, even if this Court had jurisdiction to hear Plaintiffs’ claims, this Court has discretion to abstain from exercising jurisdiction over a declaratory action that it would otherwise be empowered to hear. See Declaratory Judgment Act, 28 U.S.C. § 2201(a); see also Wilton v. Seven Falls Co., 515 U.S. 277, 282-83 (1995) (“district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites”). The Second Circuit has identified five factors to be considered before a court entertains a declaratory judgment action:
(i) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; (ii) whether a judgment would finalize the controversy and offer relief from uncertainty; (iii) whether the proposed remedy is being used merely for “procedural fencing” or a “race to res judicata”; (iv) whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and (v) whether there is a better or more effective remedy. New York Times Co. v. Gonzales, 459 F.3d 160, 167 (2d Cir. 2006). These factors weigh against the exercise of jurisdiction in this case. The requested judgment would neither “serve a useful purpose in clarifying or settling the legal issues involved” nor “finalize the controversy.” As discussed below, speedy trial rights are analyzed on a case-by-case basis. See infra, Point III. This Court cannot issue a judgment concerning the constitutional speedy trial rights of every future criminal defendant, nor can it deprive prospective criminal defendants of their right to assert speedy trial claims in any future prosecutions. Yet Plaintiffs here are asking this Court to issue a judgment concerning hypothetical prosecutions, which may or may not occur, which would have a sweeping effect “that would reach far beyond the particular case.” Wycoff, 344 U.S. at 243; see also Colorado
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River, 424 U.S. at 814 (abstention appropriate “where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”) (collecting cases). Thus, the declaratory judgment requested would be inappropriate. See Calderon v. Ashmus, 523 U.S. 740, 746-48 (1998); Wycoff, 344 U.S. at 244-46.
Moreover, a declaratory judgment in this action would fall squarely into the category of judgments that “would improperly encroach on the domain of a state . . . court.” See New York Times Co., 459 F.3d at 167. “[I]t is axiomatic that a state’s interest in the administration of criminal justice within its borders is an important one.” Hansel v. Town Court for Town of Springfield, 56 F.3d 391, 393 (2d Cir. 1995). This action asks this Court to intervene into the State’s administration of its criminal justice system, an area of great State interest. Such encroachment weighs against the exercise of jurisdiction.
Finally, there is a “better and more effective remedy” available. As explained below, Plaintiffs have the ability to challenge the constitutionality of their prosecutions within the context of their state court criminal proceedings. See infra, Point II(C). Federal relief is unnecessary to adjudicate their claims. Accordingly, comity and federalism principles dictate that this Court should abstain from hearing this matter.
C. Abstention Is Appropriate Because Plaintiffs Have the Ability to Challenge Delay in the State Court Proceeding.
This Court is not the proper forum for Plaintiffs to bring this challenge, because even if Plaintiffs are subjected to future prosecution in Bronx Criminal Court, they will have numerous opportunities to challenge any alleged constitutional speedy trial violations in their state court proceedings.
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In New York, a criminal defendant is guaranteed the constitutional right to a speedy trial as set forth by New York State Criminal Procedure Law (“CPL”) § 30.20, New York Civil Rights Law § 12, and the Sixth Amendment of the United States Constitution. See People v. Johnson, 38 N.Y.2d 271, 273 (1975). The applicable time period for the accused’s constitutional speedy trial right is from the institution of the prosecution to its disposition. See People v. White, 32 N.Y.2d 393, 397 (1973). A criminal defendant has several opportunities to raise the issue of a potential violation of his or her constitutional right to a speedy trial before the state trial court and the appellate courts. See CPL § 210.20(g); CPL § 440.10(h); CPL § 450.15. The constitutional right to a speedy trial may also be preserved after a guilty plea. See People v. Blakely, 34 N.Y.2d 311, 314 (1974) (“The improper denial of a motion to dismiss the indictment on the grounds that the defendant has not been afforded a speedy trial survives a plea of guilty and may be raised on appeal.”). A defendant’s ability to bring a speedy trial challenge in the context of his criminal court proceeding encompasses the ability to challenge delays due to court congestion. See id. at 315-17.
New York courts examine five factors to determine whether a constitutional speedy trial violation has occurred. See People v. Taranovich, 37 N.Y.2d 442 (1975). These factors include the length of delay, the reason for such delay, the nature of the underlying charge, the length of pretrial incarceration, and whether or not there is any indication that the defense has been impaired because of the delay. Id. While these factors “essentially mirror” the Supreme Court’s inquiry in Barker v. Wingo, 407 U.S. 514, 530 (1972) (see infra, Point III), New York’s standards are more liberal than the federal standards as they do not always require a showing of prejudice by the defendant. See Smith v. Maher, 468 F. Supp. 2d 466, 474 (W.D.N.Y. 2006) (“[I]n this State, failure to conduct a prompt prosecution, in a proper case, may require dismissal
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of an indictment even in the absence of prejudice to the defendant.”) (citing People v. Staley, 41 N.Y.2d 789, 792 (1977)). Therefore, if in the future, Plaintiffs face prosecution in Bronx Criminal Court, they would have the ability to raise in the New York courts the very issue they raise in this case, and seek dismissal of their criminal case.
Plaintiffs inexplicably provide a detailed description of New York’s statutory speedy trial provision as embodied by CPL § 30.30. See Compl. ¶¶ 105-115. However, CPL § 30.30 does not establish standards for constitutional speedy trial rights of criminal defendants, and in fact, does not even apply to all crimes. See CPL § 30.30(3). Further, unlike the constitutional right as described above, the calculation of the applicable CPL § 30.30 time period for an alleged violation generally ends upon the prosecution’s announcement of readiness, see People v. Kendzia, 64 N.Y.2d 331, 337 (1985), and excludes certain periods of time for various circumstances. See CPL § 30.30(4). Accordingly, the statutory right to a speedy trial is different and inapplicable when examining an alleged violation to a criminal defendant’s constitutional right to a speedy trial. See Kaufman, 466 F.3d at 87 (“Abstention is appropriate where the plaintiff has an opportunity to raise and have timely decided by a competent state tribunal the constitutional claims at issue in the federal suit.”) (citation omitted); Miller v. Silbermann, 951 F. Supp. 485, 492-93 (S.D.N.Y. 1997) (abstaining from hearing claim that housing court judges are biased against landlords, in part because bias claims could be litigated at some point in the state proceedings). Thus, abstention is appropriate here because Plaintiffs would have the opportunity to litigate any future constitutional speedy trial claims in state court.
III. PLAINTIFFS FAIL TO STATE COGNIZABLE CLAIMS. Plaintiffs’ claim for denial of their right to a speedy trial under the Sixth and Fourteenth
Amendments and due process fails as a matter of law. As discussed above, Plaintiffs do not have
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any criminal charges currently pending against them in Bronx Criminal Court. Therefore, their speedy trial rights are not being violated. Further, Plaintiffs do not seek monetary damages for any purported damages suffered by them due to delays in past prosecutions, nor could they, as such claims would be barred by sovereign immunity.6
Even if Plaintiffs somehow wished to challenge the constitutionality of their past or potential prosecutions, they would be unable to state a claim. In determining the viability of a claim for a violation of the right to a speedy trial or a violation of due process as a result of delay, courts consider the following four factors: (1) length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The Supreme Court has rejected the notion that the Sixth Amendment may be confined to a rigid set of rules. Wallace, 499 F.2d at 1349. Instead, it has held that the speedy trial right cannot be quantified into any specific period of time. Id. The Sixth Amendment does not require the state to bring a criminal defendant to trial within any specific time period. Id. Rather, each individual’s circumstances must be evaluated to determine whether a criminal defendant’s constitutional rights have been violated. Id.
Due to the individualized nature of such claims, Plaintiffs cannot bring this action on behalf of others. The determination of whether an individual’s constitutional speedy trial rights have been violated is fact-specific, and thus, must be made on a case-by-case basis. “[T]he federal courts must limit their inquiry to the specific facts regarding a complaining petitioner.
6 The Eleventh Amendment shields states from lawsuits brought by private parties in federal court unless the state consents to such a suit or Congress has expressly abrogated the state’s immunity. See Bd. of Trs. of Univ. of Ala, v. Garrett, 531 U.S. 356, 363-64 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000). It is well settled that the State of New York has not consented to suit in federal court, Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38-40 (2d Cir. 1977), and that Section 1983 was not intended to override a state’s immunity. Quern v. Jordan, 440 U.S. 332, 343 (1979); U.L. v. N.Y. State Assembly, No. 13 Civ. 438, 2014 U.S. Dist. LEXIS 11215, at **7-8 (S.D.N.Y. Jan. 29, 2014), aff’d 592 Fed. Appx. 40 (2d Cir. 2015), cert. denied, 136 S. Ct. 153 (2015). Thus, “sovereign immunity bars section 1983 claims, whether rooted in alleged violations of constitutional or statutory law, against New York State or its officers in their official capacities.” Goonewardena v. New York, 475 F. Supp. 2d 310, 329 (S.D.N.Y. 2007).
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Relief from unconstitutional delays in criminal trials is not available in wholesale lots. Whether an individual has been denied his rights to a speedy trial must be determined ad hoc on a caseby-case basis.” Wallace, 520 F.2d at 405-06. Thus, the comprehensive, blanket judgment sought by Plaintiffs here is unavailable.
The complaint is wholly devoid of allegations showing that any of the Plaintiffs’ speedy trial rights were violated in Bronx Criminal Court. Compl. ¶¶ 1-142. Specifically, while Mr. Trowbridge alleges that he has been prosecuted in Bronx Criminal Court at least six times since 2008, Compl. ¶ 85, he does not allege that any of those prosecutions took an excessive amount of time, much less were delayed to such an extent that he was denied his due process rights or his right to a speedy trial. Similarly, Mr. Ortiz alleges that he has been arrested and prosecuted fourteen times in unspecified courts, Compl. ¶ 82, but he does not allege that he was denied his right to a speedy trial in any of those prosecutions. With respect to the purported delay of the past prosecutions of Mr. Pagan and Mr. Torres, Plaintiffs fail to provide a detailed chronology alleging how much of the delay, in terms of days, was due to the court system, the prosecution, or other factors outside of their control.7
7 For example, Mr. Torres alleges that there were ten trial dates scheduled in his prior case in Bronx Criminal Court, and that the prosecution was not ready for trial on seven of those dates. Compl. ¶¶ 65-66. He does not indicate why the trial did not proceed on the other three trial dates, whether his counsel was ready on any or all of the trial dates, or the length of time that passed in between trial dates. See id. Similarly, Mr. Pagan alleges that out of sixteen trial dates, eleven were adjourned due to a lack of trial parts, and three were adjourned because the prosecution was not ready. Id. ¶¶ 76-78. He does not state what occurred on the other two dates. See id. The same is true for the “Individual Examples of Court Delay” set forth in the complaint concerning non-parties; the allegations are silent as to the cause of delay on the allegedly numerous trial dates. See id. ¶¶ 43-45 (noting that out of 30 scheduled trial dates, the prosecution was not ready on twelve dates and there were no Trial Parts available on nine dates, but remaining silent as to the reason for not going forward on the other nine dates); id. ¶¶ 51-53 (noting that out of 28 trial dates, the prosecution was not ready on five dates and there were no Trial Parts available on 16 dates, but remaining silent as to the reason for not going forward on the other seven dates); id. ¶¶ 59-61 (noting that out of 19 trial dates, the prosecution was not ready on six dates and there were no Trial Parts available on ten dates, but remaining silent as to the reason for not going forward on the other three dates).
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Moreover, none of the Plaintiffs alleges that he raised a constitutional speedy trial challenge within the context of his state court criminal case.8 Plaintiffs’ failure to avail themselves of the state remedies available to them weighs in favor of dismissal. See Barker, 407 U.S. at 531-32 (“[t]he defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”).
Most critically, Plaintiffs do not allege that they suffered prejudice due to the purported delays in Bronx Criminal Court. Prejudice must be assessed in the light of the interests of defendants that the speedy trial right was designed to protect. Barker, 407 U.S. at 532. Those interests are: (1) preventing oppressive pre-trial incarceration; (2) minimizing the accused’s anxiety and concern over the pending criminal charges; and (3) limiting the possibility that the defense will be impaired. Id.; Doggett v. United States, 505 U.S. 647, 654 (1992). Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U.S. at 532; Doggett, 505 U.S. at 654. Although a showing of prejudice is not a prerequisite to finding a Sixth Amendment violation, courts generally have been reluctant to find a constitutional speedy trial violation in the absence of “genuine prejudice.” United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997) (citing Rayborn v. Scully, 858 F.2d 84, 94 (2d Cir. 1988)).
Here, Plaintiffs do not allege facts showing prejudice, especially with respect to their ability to adequately prepare and present their cases. In fact, the only Plaintiff who alleges that he served any jail time (aside from one to two days in custody surrounding the initial arrest), Mr.
8 Mr. Torres alleges that he moved to dismiss his criminal case on statutory speedy trial grounds, not constitutional grounds. Compl. ¶ 67.
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Ortiz, does not allege that his prosecution was delayed in any way.9 Compl. ¶¶ 82-83. The other Plaintiffs were either acquitted of the charges against them or obtained an adjournment in contemplation of dismissal.10 Compl. ¶¶ 68, 79.11 The same is true for the non-party individuals discussed in the complaint. Id. ¶¶ 43, 55, 58. While Mr. Pagan makes vague allegations about that he “the stress of having an open misdemeanor case,” Compl. ¶ 79, and Mr. Torres make allegations concerning his work and personal life, Compl. ¶¶ 69-71, both individuals had a favorable result to their criminal case, Compl. ¶¶ 68, 79. Indeed, Mr. Torres acknowledges that the charges against him were dismissed due to the arresting police officer’s lack of recollection concerning the arrest. Compl. ¶ 68. Therefore, any purported delay did not impair his defense.
Accordingly, given that Plaintiffs cannot raise this constitutional challenge on behalf of others, they are not facing current prosecutions of their own to challenge on constitutional speedy trial grounds, and they fail to assert allegations concerning any constitutional deprivation with respect to their past prosecutions, their claims must be dismissed for failure to state a claim.
Finally, Plaintiffs’ due process claim should be dismissed as duplicative of their speedy trial claim. “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994). Specifically, when “defendants’ purported actions would not--but for the allegations of [other constitutional] violations--be sufficiently shocking to
9 The complaint does not indicate whether Mr. Ortiz was convicted at trial or accepted a plea bargain. 10 “An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice.” CPL § 170.55(2). The criminal proceeding is adjourned for a certain period of time, at the end of which the charges are dismissed. The granting of an adjournment in contemplation of dismissal is not deemed a conviction or an admission of guilt. See CPL § 170.55(8); see also Compl. ¶ 43 (noting that a non-party, Sarah Bello, “accepted an adjournment in contemplation of dismissal requiring no admission of guilt and resulting in a full dismissal of the charges”). 11 The complaint is silent as to the outcome of Mr. Trowbridge’s past prosecutions. See Compl. ¶¶ 84-86.
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state substantive due process claims, . . . plaintiff’s substantive due process claim is either subsumed in h[is] more particularized allegations, or must fail.” Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005). Here, Plaintiffs allege that the purported delay in the processing of misdemeanors violates their due process rights, which are subsumed in their allegations of a denial of speedy trial rights under the Sixth Amendments. Therefore, the due process claim should be dismissed as duplicative.
IV. THE GOVERNOR IS NOT A NECESSARY OR PROPER PARTY. All claims against Governor Cuomo should be dismissed because he is not a necessary or
proper party. Plaintiffs do not allege that Governor Cuomo has control over the administration of misdemeanor trials in Bronx Criminal Court. Rather, Plaintiffs merely allege that the Governor is “the chief law enforcement officer of New York State” (Compl. ¶ 21), which is insufficient to make him a proper or necessary party. See Nolan v. Cuomo, 2013 U.S. Dist. LEXIS 6680 (E.D.N.Y. Jan. 16, 2013) (citing cases); see also N.Y.S. Motor Truck Ass’n v. Pataki, 2004 U.S. Dist. LEXIS 25519 at *12 (S.D.N.Y. Dec. 17, 2004) (“Since the complaint fails to allege that the Governor has any connection with the enforcement of the statute, other than his general duty to ensure the laws are faithfully executed, he is immune from suit even though the remedy sought here is only injunctive and declaratory relief.”).12 Accordingly, the claims asserted against Governor Cuomo should be dismissed.
CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss the complaint, with prejudice, together with such other and further relief as it deems just and proper.
12 To the extent Plaintiffs take issue with the Governor’s statements concerning funding, the Governor does not have the authority to appropriate funds, nor can this Court order the State to appropriate funds. See supra, n.5.
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Dated: New York, New York June 30, 2016

Respectfully submitted,
ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants By:
/s/ Alissa S. Wright ALISSA S. WRIGHT MICHELLE R. LAMBERT Assistant Attorneys General 120 Broadway, 24th Floor New York, New York 10271-0332 Tel: (212) 416-6035

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CHRISTOPHER TROWBRIDGE, MICHAEL TORRES, RONNIE PAGAN, JUAN ORTIZ, LUIS VIRELLA, JASON GARCIA, and JOSEPH JOSHUA, individually and on behalf of a class of all others similarly situated;
Plaintiffs,
– against –
JANET DIFIORE, in her official capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System; and LAWRENCE MARKS, in his official capacity as Chief Administrative Judge of the Unified Court System;
Defendants.

Civil Action No. 16-cv-3455 (GBD) AMENDED COMPLAINT [CLASS ACTION]

PRELIMINARY STATEMENT 1. Justice delayed is justice denied. The constitutional right to a trial—a speedy and public trial—is the foundation of our adversarial criminal justice system. The right to challenge the state’s evidence and confront witnesses in a meaningful and timely manner gives legal and moral legitimacy to the system as a whole. For people accused of misdemeanors in the Bronx, however, this right is illusory.1 Years of persistent delays in processing misdemeanor cases, court congestion, and case backlogs (collectively, “Court Delay”) in the New York City Criminal Court, Bronx County (“Bronx Criminal Court”) have fatally undermined the right to trial and the
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1 For the purposes of this Complaint, the use of the term “misdemeanors” is intended to include all misdemeanors as well as non-criminal violations and infractions.

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right to a speedy trial for the tens of thousands of people charged with low-level offenses in the Bronx. The system more closely resembles punishment than due process.
2. Each day, hundreds of people arrive at Bronx Criminal Court to wait for their day in court. Appearances are not scheduled for a particular hour or window of time, so everyone has to arrive at the beginning of the day. Arrest warrants may be issued for latecomers. People sit in packed courtrooms for hours—sometimes all day—waiting for their cases to be called. They take the entire day off of work; they miss school and doctors’ appointments; they rely on neighbors to watch their kids. When their case is finally called and they stand before a judge, the appearance usually lasts less than a few minutes, and the case is perfunctorily adjourned for another date.
3. Adjournment after adjournment, people wait for hours to see a judge only to be told to come back yet another day. The months often turn into years. People’s lives are put on hold as their fate hangs in the balance. The process can feel interminable.
4. For Sarah Bello, it took 1,166 days and 33 court dates—30 of which were scheduled trial dates—before the charges against her were adjourned in contemplation of dismissal.2 For Joseph Bermudez, it took 1,258 days and 38 court dates before he could get his day in court, have a trial, and be acquitted. At least 16 times, both sides were ready for trial, but there were no misdemeanor trial courtrooms (“Trial Parts”) available. John Carridice waited 1,009 days and had 20 court dates before he finally got a trial and was acquitted. Though their cases were ultimately resolved in their favor, the damage inflicted by Court Delay—jobs and opportunities lost, lives disrupted, and relationships strained—had already been done. For those still in the system, and those who may be, the harm continues.
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2 Ms. Bello’s name has been changed for the purposes of this complaint in order to protect her privacy as a victim of domestic violence.

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5. These experiences are commonplace in Bronx Criminal Court. At the beginning
of 2016, there were 2,378 misdemeanor cases that had been pending for over 365 days, and 538
cases that had been pending for over two years.3 In 2014, it took twice as long to resolve an
average misdemeanor case in Bronx Criminal Court’s All Purpose Parts (“AP Parts”)—the high-
volume courtrooms that handle pre-trial misdemeanor matters—as contemplated by the New
York State Unified Court System (the “New York Courts”) guidelines.
6. There are hundreds of misdemeanor cases scheduled for trial each week in which
both sides are ready to proceed. But trials scarcely happen. The Trial Parts often sit locked and
empty. In 2015, there were over 45,000 misdemeanor arraignments in the Bronx, but only 98
misdemeanor trials. In an average week in Bronx Criminal Court, more than 800 new
misdemeanor cases enter the system, but fewer than two are resolved by trial.
7. The few people who manage to exercise their right to trial in misdemeanor cases
wait on average 688 days for a non-jury bench trial and an astonishing 897 days for a jury trial.
For many, the wait is far longer.
8. New York’s speedy trial statute requires prosecutors to be ready for trial within
90 days of arraignment for class A misdemeanors, 60 days for class B misdemeanors, and 30
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3 Statistics for the 2016 calendar year are not publicly available. Unless otherwise noted, the statistics cited in this Complaint are drawn from: Criminal Court of City of N.Y., N.Y. State Unified Court Sys., Bronx County Misdemeanor Activity Report: Full Year 2015 (2015); Criminal Court of City of N.Y., Annual Report: 2015 (2016), available at https://www.nycourts.gov/COURTS/nyc/criminal/2015_crim_crt_ann_rpt_%20062316_fnl2.pdf; Criminal Court of City of N.Y., Annual Report: 2014 (2015), available at https://www.nycourts.gov/COURTS/nyc/criminal/cc_annl_rpt_2014.pdf; N.Y. State Unified Court Sys., The Bronx Criminal Division: Merger After Five Years (2009) [hereinafter “Merger Report”], available at https://www.nycourts.gov/publications/pdfs/BronxReport11-09.pdf; and Press Release, N.Y. State Unified Court Sys., State Court System Reports Dramatic Cut in Felony Case Inventory, Announces Plan to Slash the Borough’s Misdemeanor Backlog and Names New Bronx Appointment (Dec. 11, 2013) [hereinafter “Dec. 2013 Press Release”], available at http://www.nycourts.gov/press/pdfs/pr13_14a.pdf.

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days for non-criminal violations. Time waiting for trial is not counted against these statutory limits, however, if it is attributable to Court Delay, such as when there are no Trial Parts available or when congested court calendars require extended adjournments between scheduled court dates. As a result, New York’s statutory speedy trial law is a functionally meaningless tool to ensure compliance with constitutional speedy trial mandates.
9. Court Delay corrupts every stage of a criminal case. From the inception of their cases at arraignment—confronted with the reality of Court Delay, and with little hope for a timely trial—many people charged with misdemeanors in the Bronx plead guilty in order to stem the ongoing costs associated with returning to court for months on end. They have no meaningful or timely opportunity to test the state’s evidence against them at trial or to vindicate other important constitutional rights, such as the right against unreasonable search and seizure, in pretrial evidentiary hearings. The inordinate delays, combined with the lack of trial capacity, make trials—and certainly speedy trials—functionally unattainable in Bronx Criminal Court.
10. Bronx Criminal Court is an outlier. Manhattan does not have these delays. Brooklyn does not have these delays. Queens does not have these delays. Staten Island does not have these delays. Only the Bronx, the poorest county in New York State, and the borough with the highest percentage of residents who are people of color, experiences such severe Court Delay. Indeed, in Bronx Criminal Court, people of color make up 95% of all misdemeanor arraignments, compared to approximately 85% in Manhattan, Brooklyn, and Queens, and 56% in Staten Island.4

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4 N.Y. State Div. of Criminal Justice Servs., New York City: Misdemeanor Arraignments in
Criminal Court (Apr. 21, 2016) (electronic spreadsheet).

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11. And despite having fewer misdemeanor case filings than either Brooklyn or Manhattan, as recently as 2013, Bronx Criminal Court had more misdemeanors pending over one year than all of the other boroughs combined.
12. Systemic Court Delay not only undermines the legal and moral legitimacy of the criminal justice system, but it also acts as a significant obstacle to economic opportunity and social stability for people accused of misdemeanors in the Bronx, their families, and their communities. Thousands of people accused of misdemeanors in the Bronx must endure significant burdens and costs as a result of their unnecessarily prolonged prosecutions, in the form of missed work, lost wages, school absences, rescheduled medical appointments, childcare emergencies, strained professional and familial relationships, and psychological stress.
13. Court Delay in Bronx Criminal Court also negatively affects every institutional stakeholder in the Bronx criminal justice system—prosecutors, the defense bar, and local city government alike. The Bronx District Attorney has lamented the drain on already scarce resources caused by Court Delay, and the New York City Mayor’s Office of Criminal Justice has identified Court Delay in Bronx Criminal Court as a serious problem. Court Delay serves no one’s interests.
14. In April 2013, former New York State Chief Judge Jonathan Lippman called Court Delay in the Bronx “intolerable” and “entirely unacceptable.”5 It is also unconstitutional.
15. Plaintiffs Christopher Trowbridge, Michael Torres, Ronnie Pagan, Juan Ortiz, Luis Virella, Jason Garcia, and Joseph Joshua (collectively, the “Named Plaintiffs”) bring this civil rights lawsuit on behalf of themselves and those similarly situated to remedy the violation
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5 William Glaberson, Faltering Courts, Mired in Delay, N.Y. Times, Apr. 13, 2013, http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-indelays.html.

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of their rights secured by 42 U.S.C. § 1983 and the Sixth and Fourteenth Amendments to the United States Constitution.6
JURISDICTION AND VENUE 16. This action is authorized by 42 U.S.C. § 1983. Subject matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343(a)(3) and (4) because this action seeks redress for violations of Plaintiffs’ rights under the Sixth and Fourteenth Amendments to the United States Constitution. 17. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper. Rule 65 of the Federal Rules of Civil Procedure authorizes injunctive relief. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988. 18. Venue is proper in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1391(b), because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the Southern District of New York.
PARTIES 19. The Plaintiff Class consists of all persons who are being or will be prosecuted in Bronx Criminal Court with a misdemeanor or lesser offense as the top charge. 20. Plaintiffs Trowbridge, Torres, Ortiz, and Virella are all residents of the Bronx. Plaintiffs Pagan, Garcia, and Joshua are residents of Manhattan. 21. Defendant Janet DiFiore is the Chief Judge of the New York State Court of Appeals, Chief Judicial Officer of the New York Courts, and Chair of the Administrative Board
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6 The Court dismissed the claims of Christopher Trowbridge, Michael Torres, Ronnie Pagan, and Juan Ortiz for lack of standing in its December 22, 2016 Memorandum Order and Decision (ECF No. 39). The Amended Complaint continues to assert their claims in order to preserve their appellate rights.

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of the New York Courts (the “Chief Judge”), with offices at 25 Beaver Street, New York, New
York. The Chief Judge is responsible for the establishment and enforcement of the
administrative polices of the New York Courts, including Bronx Criminal Court, and for the
courts’ compliance with law. The Chief Judge is sued in her official capacity.
22. Defendant Lawrence Marks is Chief Administrator and Chief Administrative
Judge of the New York Courts (the “Chief Administrative Judge”), with offices at 25 Beaver
Street, New York, New York. The Chief Administrator is responsible, on behalf of the Chief
Judge, for supervising the administration and operation of the New York Courts. The Chief Administrative Judge is sued in his official capacity.7
CLASS ALLEGATIONS
23. The Plaintiff Class consists of all persons who are being or will be prosecuted in
Bronx Criminal Court with a misdemeanor or lesser offense as the top charge.
24. This action is properly maintainable as a class action because all four
requirements of Rule 23(a) of the Federal Rules of Civil Procedure are satisfied:
25. Numerosity: The members of the class are sufficiently numerous that joinder of all
members is impracticable. In 2015, there were 45,928 people arraigned on misdemeanor charges
in the Bronx. At the end of 2015, there were 12,445 misdemeanor cases pending in Bronx
Criminal Court. Joinder is also impracticable because many potential members of the class are
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7 The Chief Judge is required by § 249 of the New York Judiciary Law to establish a system of “internal control” for the New York Courts, defined as “a process that integrates the activities, plans . . . systems, resources and efforts . . . and that is designed to provide reasonable assurance that the organization will achieve its objectives and mission. The objectives of an internal control system include . . . promoting the effectiveness and efficiency of operations.” The Chief Judge, in turn, delegates much of his or her authority to the Chief Administrative Judge, who is responsible for the administration and operation of the New York Court System. N.Y. Jud. Law § 212. The Chief Administrative Judge has supervisory authority over all of the New York Court System’s administrative activities, including the temporary reassignment of judges and the formation of the courts. 22 N.Y. Comp. Codes R. & Regs. § 80.1.

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not aware that their rights will be violated and that they have the right to seek redress in court. Further, putative class members are unknown and, therefore, cannot practically be joined. There is no appropriate avenue for the protection of these potential class members’ rights other than a class action.
26. Commonality: There are questions of law and fact common to the class. These common questions include, but are not limited to: (a) whether there is a policy, practice, and/or custom of unlawful Court Delay in Bronx Criminal Court; (b) whether unlawful Court Delay in Bronx Criminal Court deprives people accused of misdemeanors and/or lesser offenses in the Bronx of their right to due process under the Fourteenth Amendment to the United States Constitution; (c) whether unlawful Court Delay in Bronx Criminal Court deprives people accused of misdemeanors in the Bronx of their right to a trial or right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution; and (d) whether the Chief Judge and the Chief Administrative Judge (collectively “Defendants”) have encouraged, sanctioned, and/or failed to rectify the widespread policy, practice, and/or custom of unlawful Court Delay in Bronx Criminal Court, and whether such acts and/or omissions have caused the constitutional violations.
27. Typicality: The claims alleged by the Named Plaintiffs are typical of the class they seek to represent, as they all allege violations of due process and the right to a speedy trial related to the policy, practice, and/or custom of unlawful Court Delay in Bronx Criminal Court. The legal theories under which the Named Plaintiffs seek declaratory and injunctive relief are the same or similar to those on which all members of the class will rely, and the harms suffered by the Named Plaintiffs are typical of the harms suffered by all members of the class.

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28. Adequacy of Representation: The Named Plaintiffs are adequate class representatives. Named Plaintiffs are being prosecuted or are likely to be prosecuted in Bronx Criminal Court and will suffer harm from the unlawful denial of due process and the right to a speedy trial caused by Court Delay. The Named Plaintiffs will fairly and adequately protect the interests of the other class members. Plaintiffs’ counsel includes attorneys from The Bronx Defenders, Emery Celli Brinckerhoff & Abady LLP, and Morrison & Foerster LLP—all of whom are experienced in federal class action litigation, including constitutional and civil rights litigation, and have the resources necessary to pursue this litigation.
29. This action is properly maintainable as a class action under Rule 23(b)(1)(a) of the Federal Rules of Civil Procedure because prosecuting separate actions by or against individual class members would create a risk of adjudications with respect to individual class members that would be inconsistent or varying and, thus, establish incompatible standards of conduct for the parties opposing the class.
30. This action is also properly maintainable as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure because Defendants have acted and/or refused to act on grounds generally applicable to the class, thereby rendering final relief appropriate with respect to the Named Plaintiffs and the class as a whole. The class members are entitled to relief to end Defendants’ policy, practice, and/or custom of unconstitutional Court Delay in Bronx Criminal Court.
FACTS I. The Life Cycle of a Typical Misdemeanor Case in the Bronx
31. All misdemeanor prosecutions begin with an arraignment in one of Bronx Criminal Court’s arraignment courtrooms. At the arraignment, defense counsel is assigned and a

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judge makes a bail determination. The District Attorney also may make a plea bargain offer. Many people opt to resolve their cases at arraignment through a negotiated disposition.
32. Cases that are not resolved at arraignment, however, are adjourned to an AP Part for corroboration of the misdemeanor complaint (“conversion”), for motion practice, or for trial in those cases where the complaint has been converted and motion practice is waived.8 Motion practice in misdemeanor cases is largely a rote, pro forma exercise; hearings to determine the constitutionality of searches, seizures, and identification procedures are granted as a matter of course. The hearings themselves, however, are not conducted until much later, if ever.
33. Once motion practice is completed, the case is scheduled for “hearings and trial” (“Trial Date”). On Trial Dates, the judge asks if the parties are ready for trial. If either side is not ready, the judge adjourns the case and sets another Trial Date, usually four to six weeks in the future. If both sides are ready, the judge ascertains whether any Trial Parts are available. When there are no Trial Parts available, as is most often the case, the parties are told, “There are no parts,” and the case is adjourned.
34. Even in the rare instance when a Trial Part is available and a case is sent out for trial, a trial typically will not commence. A case sent to a Trial Part may be further postponed for myriad reasons. For example, given the small percentage of trial-ready cases that are sent out to trial and the lack of predictability, key prosecution witnesses—often, police officers— frequently are not available. When prosecution witnesses fail to appear, cases are adjourned for yet another Trial Date, and fully staffed Trial Parts sit idle.
35. A judge may excuse a person charged with a misdemeanor from personally appearing in court or make his or her appearance contingent on the prosecutor’s trial readiness
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8 Cases may also be adjourned to a small number of specialized parts, such as the Domestic Violence Misdemeanor Part.

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and the availability of a Trial Part. As a general rule, however, a person is required to appear in court on each and every court date, no matter how old the case is, no matter how reliably the person has shown up for court in the past, and regardless of the fact that no law mandates a personal appearance at every court date.
36. For every court date they must attend, for whatever purpose, people are told to be in the courtroom at 9:30 a.m., though there may be more than 100 cases on the calendar in any given courtroom. Consequently, a person accused of a misdemeanor frequently arrives at court at 9:00 a.m. and has to wait, sometimes until 4:30 p.m., for his or her perfunctory court appearance. II. Individual Examples of Court Delay
37. The experiences of Sarah Bello, Joseph Bermudez, and John Carridice are emblematic of the problem of Court Delay in Bronx Criminal Court. Their experiences are the norm for people accused of misdemeanors in the Bronx, not the exception. Sarah Bello
38. Sarah Bello is a 40-year-old single mother of four, originally from Ghana. 39. Ms. Bello came to the United States in 2003. All four of her children are United States citizens. In 2008, Ms. Bello married a United States citizen. Once they were married, however, Ms. Bello’s husband became abusive and the two later divorced. 40. Ms. Bello subsequently filed a petition pursuant to the Violence Against Women Act (VAWA) with the United States Citizenship and Immigration Services, seeking eligibility for legal permanent status as a victim of domestic violence. Ms. Bello’s VAWA petition was granted, and on August 23, 2011, she applied for legal permanent residency in the United States.

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An interview was scheduled with immigration officials for September 16, 2013 in order to determine Ms. Bello’s final eligibility for adjustment of status.
41. On September 9, 2012, Ms. Bello had a dispute with an acquaintance over payment for a used car. She was arrested and prosecuted for misdemeanor assault in Bronx Criminal Court. Ms. Bello—who has no criminal record—adamantly denied the charges.
42. Ms. Bello had 33 court dates, including 30 scheduled Trial Dates, before she ultimately accepted an adjournment in contemplation of dismissal, a disposition requiring no admission of guilt and resulting in a full dismissal of the charges, on November 19, 2015—1,166 days after her initial arraignment.
43. On nine scheduled Trial Dates, both parties were prepared to go to trial, but there were no Trial Parts available.
44. On 12 scheduled Trial Dates, the prosecution stated not ready for trial and requested adjournments.
45. Due to Court Delay, Ms. Bello’s misdemeanor case was still pending at the time of her immigration interview on September 13, 2013, more than a year after her initial arraignment. The Adjustment Officer held Ms. Bello’s application for legal permanent residency in abeyance pending the outcome of her criminal case in Bronx Criminal Court.
46. On July 7, 2015, Ms. Bello’s application was denied because her case in the Bronx was still pending, and she was unable to provide immigration officials with proof of a final disposition.
47. Court Delay also threatened Ms. Bello’s livelihood and her ability to provide for her children. For many years, Ms. Bello has worked as a home health aide, a position that requires her to be licensed with the state of New Jersey. In September 2013, Ms. Bello learned

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that the New Jersey Board of Nursing could not process her application to renew her employment license because of her open criminal case in the Bronx. Because she was unable to provide a final disposition showing that the case had been resolved, Ms. Bello was suspended from her job working as a home health aide with a senior-care organization. Ms. Bello was out of work for a number of months. Once the case was resolved, she was able to get her license reinstated. Joseph Bermudez
48. Joseph Bermudez is a 36-year-old Latino man, a married father of one, and a lifelong resident of the Bronx. He works as a warehouse manager at an appliance company.
49. On July 7, 2012, Mr. Bermudez was involved in a traffic accident and taken to a police precinct, where he agreed to take a blood alcohol test. Even though his blood alcohol level was below the legal limit, he was arrested for drunk driving. He was arraigned in Bronx Criminal Court on July 8, 2012.
50. Mr. Bermudez had 38 scheduled court dates, including 28 Trial Dates, before his case was sent out to trial in December 2015—1,255 days after his initial arraignment.9 He was acquitted of all charges.
51. On at least 16 Trial Dates, both parties were ready to proceed to trial, but there were no Trial Parts available.
52. On five Trial Dates, the prosecution stated not ready for trial and requested adjournments.
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9 While Mr. Bermudez’s driver license was not suspended during the pendency of his case, many people charged with drunk driving in the Bronx lose their privilege to drive for the entirety of their pending misdemeanor case. As a result, in the Bronx, people often lose their driving privileges for two or three years waiting for a trial, despite the fact that the maximum license suspension allowed after a misdemeanor conviction is one year.

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53. Mr. Bermudez repeatedly rejected non-criminal, non-incarceratory plea offers and requested a trial.
54. Mr. Bermudez was ultimately acquitted after a trial that took three days. John Carridice
55. John Carridice is a 38-year-old father of four who resides in the Bronx. He has an associate’s degree and is working toward a bachelor’s degree in social work and psychology, with the aim of becoming a children’s therapist.
56. On September 7, 2012, Mr. Carridice saw two young men about to fight on the street and intervened to separate the men. Mr. Carridice was trying to deescalate the situation when police officers arrived and placed Mr. Carridice in handcuffs. After spending two days in jail, Mr. Carridice was arraigned in Bronx Criminal Court on September 9, 2012 and charged with resisting arrest, unlawful assembly, disorderly conduct, and harassment, all misdemeanors or non-criminal violations.
57. There were 20 scheduled court dates in Mr. Carridice’s case, including 19 Trial Dates, before Mr. Carridice’s case was sent out to trial in June 2015—1,003 days after his arraignment. He was ultimately acquitted of all charges on June 15, 2015.
58. On ten Trial Dates, both parties were ready to proceed to trial, but there were no Trial Parts available.
59. On six Trial Dates, the prosecution stated not ready for trial and requested adjournments.
60. Mr. Carridice worked for a children’s aid organization and, as a result of the pending case, was given limited hours at work and was prevented from working around children. He was also denied other full-time jobs because of the open misdemeanor case.

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61. Mr. Carridice was also pursuing an associate’s degree in psychology from Bronx Community College. The Court Delay in his case severely disrupted Mr. Carridice’s studies. On one occasion, Mr. Carridice was forced to take an important midterm exam two weeks early in order to accommodate a scheduled Trial Date. As a result, Mr. Carridice did not have as much time as he needed to study, his performance on the exam suffered, and his GPA fell below the cutoff for an important scholarship. On the Trial Date that caused the disruption, the case was perfunctorily adjourned for another date. III. The Named Plaintiffs Michael Torres
62. Plaintiff Michael Torres is a 43-year-old Latino man who lives in the Bronx with his wife and two stepdaughters. For the past nine years, Mr. Torres has worked in the construction industry in multiple capacities. He currently works as a glazier, installing windows and aluminum panels on high-rise buildings being constructed across New York City.
63. On September 26, 2011, Mr. Torres was on his way to a job interview when two police officers stopped and searched him without justification or consent. A small amount of marijuana was recovered from inside a sweatshirt he was carrying. After spending a full night in police custody, Mr. Torres was arraigned in Bronx Criminal Court on September 27, 2011 and charged with misdemeanor possession of marijuana.
64. In all, there were 14 scheduled court dates in Mr. Torres’ case, including ten Trial Dates.
65. On seven of the scheduled Trial Dates, the prosecution stated not ready for trial and requested adjournments.

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66. On October 9, 2013—743 days after Mr. Torres’ arraignment—counsel for Mr. Torres filed a motion to dismiss on statutory speedy trial grounds. The motion was denied on November 22, 2013. Mr. Torres could not appeal that ruling because his case was ultimately dismissed and there were no grounds for an interlocutory appeal.
67. At a pretrial hearing on February 20, 2014—877 days after his initial arraignment—the police officer who had arrested Mr. Torres testified that he had no independent recollection of the circumstances leading up to Mr. Torres’ arrest, and the case was dismissed.
68. Mr. Torres was required to be in court on each and every one of his 14 court dates. He sometimes waited as long as six hours before his case was perfunctorily adjourned. During periods of time when Mr. Torres was employed, he was forced to take an entire day off work, losing pay and frustrating his supervisor.
69. In 2013, Mr. Torres was let go from a job because of the number of days he had been forced to take off to appear in court.
70. The denial of Mr. Torres’s rights to due process and a speedy trial took a serious emotional, mental, and financial toll on Mr. Torres and his family. In addition to the lost wages and employment, Mr. Torres continued to suffer anxiety about keeping his job. The problems at work spilled over into his family life, causing significant tension between Mr. Torres and his wife.
71. Mr. Torres is likely to be arrested, prosecuted, and subjected to unconstitutional Court Delay in Bronx Criminal Court again. Mr. Torres’ job as a glazier requires Mr. Torres to use a folding knife to cut away loose sealant and ensure proper installation of large glass windows. Mr. Torres must carry his own knife to and from work on a daily basis. Although this folding knife is legal and found in home improvement and camping supply stores, police officers

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regularly arrest, and the Office of the District Attorney regularly prosecutes, people—primarily people of color in low-income communities like the South Bronx—for possession of such knives under the law prohibiting possession of gravity knives. This practice is well documented and widespread.10 Indeed, Mr. Torres was arrested and prosecuted under the gravity knife statute for possessing a lawful folding knife on at least one prior occasion in Bronx Criminal Court in October 2013.
72. Mr. Torres is also likely to be arrested and prosecuted for unlicensed driving as a result of a license suspension he received in Florida and the subsequent suspension of his privilege to drive in New York. Mr. Torres has been unable to travel to Florida to clear the license suspension and expects that his license will remain suspended for the foreseeable future. Despite having a suspended license for the past six years, Mr. Torres must continue to drive on occasion in order to get to remote job sites not served by public transportation. Mr. Torres has already been prosecuted for unlicensed driving on at least two occasions in the past. Ronnie Pagan
73. Ronnie Pagan is a 37-year-old Latino man who lives in Manhattan. 74. Mr. Pagan was unlawfully stopped and searched in a public park on the evening of February 15, 2014, and charged with misdemeanor drug possession, obstruction of governmental administration, and trespass. Mr. Pagan spent two days in jail before he was arraigned in Bronx Criminal Court on February 17, 2014. From the very beginning of his case, he was determined to seek a trial. 75. In all, Mr. Pagan’s case had 18 scheduled court dates, including 16 Trial Dates.
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10 See Jon Campbell, How a ‘50s-Era New York Knife Law Has Landed Thousands in Jail, The Village Voice, Oct. 7, 2014, http://www.villagevoice.com/news/how-a-50s-era-new-york-knifelaw-has-landed-thousands-in-jail-6662589.

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76. On 11 of Mr. Pagan’s Trial Dates, both parties were prepared to begin trial, but there were no Trial Parts available.
77. On three Trial Dates, the prosecution stated not ready for trial and requested adjournments.
78. On March 21, 2016, 763 days after his arraignment, Mr. Pagan was unable to deal with the stress of having an open misdemeanor case any longer; he reluctantly accepted an adjournment in contemplation of dismissal in order to bring an end to the case.
79. Mr. Pagan is likely to be arrested and prosecuted in Bronx Criminal Court again. Mr. Pagan’s girlfriend and their four children live in a New York City Housing Authority (NYCHA) apartment building in the South Bronx. Mr. Pagan lives with his mother in Manhattan, but regularly visits his girlfriend’s building in the Bronx in order to care for his children. Mr. Pagan is routinely stopped and—because his identification shows a Manhattan home address—he has on a number of occasions been arrested by police officers on suspicion of trespass in his girlfriend’s building. The City of New York’s trespass enforcement practices in NYCHA residences have been well documented and are currently under the review of a federal monitor. Because Mr. Pagan continues to visit his girlfriend and their children in a Bronx NYCHA residence, he will likely be arrested and subjected to unconstitutional Court Delay in Bronx Criminal Court again. Juan Ortiz
80. Mr. Ortiz is a 61-year-old Latino man who lives in the Bronx. In the early 2000’s, Mr. Ortiz was diagnosed with colon cancer, for which he underwent surgery and received nine months of chemotherapy. Mr. Ortiz’s illness and the subsequent treatment made it difficult for Mr. Ortiz to work and ultimately led to him losing his job of 12 years. The anxiety

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and stress Mr. Ortiz experienced due to his medical and financial condition gave rise to a number of psychiatric issues for which Mr. Ortiz sought psychiatric treatment.
81. From 2012 through 2015, Mr. Ortiz was prescribed multiple medications to treat his psychiatric condition. The medications caused Mr. Ortiz to experience episodes of severe disorientation. During these episodes, Mr. Ortiz would be gripped by a compulsion to take items from stores without paying. Between December 2012 and March 2015, Mr. Ortiz was arrested and prosecuted 14 times for the misdemeanors of petit larceny and/or possession of stolen goods in Bronx Criminal Court. He was ultimately given a jail sentence of one year and was released in September 2015.
82. Mr. Ortiz continues to struggle with the fallout from his fight with cancer and the attendant psychiatric issues. He and his care providers are still experimenting with different medications to try to identify one that mitigates his symptoms and alleviates his urge to shoplift. For the same reasons that Mr. Ortiz was arrested and prosecuted 14 times, he will likely be arrested and prosecuted in the Bronx again and subjected to unconstitutional Court Delay in Bronx Criminal Court. Christopher Trowbridge
83. Christopher Trowbridge is a 42-year-old African-American man who lives in the South Bronx. He has struggled with heroin addiction for the past 18 years and has spent multiple periods in detox and rehabilitation facilities.
84. Mr. Trowbridge’s struggle with addiction has also led to multiple arrests and prosecutions in Bronx Criminal Court. He has been prosecuted in Bronx Criminal Court at least six times since 2008.

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85. Mr. Trowbridge continues to deal with the challenges of a long-term drug addiction. He has lived through the cycle of recovery and relapse multiple times, and will likely be arrested and prosecuted in the Bronx again and subjected to unconstitutional Court Delay in Bronx Criminal Court. Luis Virella
86. Luis Virella is a 69-year-old Latino father and grandfather who lives in the Bronx. In 1970, at the age of 23, he moved to New York City from Puerto Rico. Before retiring in 2014, Mr. Virella worked for 38 years as a disability analyst for the State of New York.
87. On February 24, 2014, Mr. Virella was arrested and charged with drunk driving in the Bronx. He was arraigned in Bronx Criminal Court the same day. He has no criminal record.
88. Mr. Virella has had 27 scheduled court dates. As of January 23, 2017, Mr. Virella’s case will have been pending for 1,064 days.
89. Since June 2014, when it became clear that a plea was unlikely, there have been 22 scheduled Trial Dates. On at least 11 of those Trial Dates, both parties were ready to proceed to trial, but there were no Trial Parts available. On four of those dates, the prosecution stated not ready for trial and requested adjournments.
90. Mr. Virella’s case is still pending. Court Delay has consistently prevented Mr. Virella from obtaining a speedy trial in violation of his constitutional rights.
91. Mr. Virella’s prolonged prosecution has caused him to experience depression and anxiety and has caused tension with his family.
92. Mr. Virella’s driving privileges have been suspended for the duration of his case.

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Jason Garcia 93. Jason Garcia is a 30-year-old Latino man who lives in Manhattan. He graduated
from high school in the Bronx and earned his bachelor’s degree in criminal justice. For the past five years, Mr. Garcia has worked as the facilities manager at a Catholic community center in Manhattan. As part of his work duties, Mr. Garcia coordinates the center’s weekly food pantry and sandwich lines.
94. On July 12, 2015, Mr. Garcia was arrested and charged with drunk driving in the Bronx. After spending over 24 hours in police custody, Mr. Garcia was arraigned in Bronx Criminal Court on July 13, 2015.
95. Mr. Garcia has had 12 scheduled court dates, of which 11 were Trial Dates. As of January 23, 2017, Mr. Garcia’s case will have been pending for 560 days.
96. On at least six Trial Dates, both parties were ready to proceed to trial, but there were no Trial Parts available.
97. On three Trial Dates, the prosecution stated not ready for trial and requested adjournments.
98. Mr. Garcia’s case is still pending. Court Delay has consistently prevented Mr. Garcia from obtaining a speedy trial in violation of his constitutional rights.
99. Mr. Garcia has been required to be present at the majority of his court appearances, sometimes waiting hours before his case was called. The resulting work absences have caused tension with Mr. Garcia’s supervisor at work. It has also caused Mr. Garcia anxiety and has affected his relationships with his family.
100. Mr. Garcia’s driving privileges have been restricted for the entire pendency of the case.

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Joseph Joshua 101. Joseph Joshua is a 31-year-old African-American man who lives in Manhattan.
He works as a porter in an apartment building in Manhattan. 102. On June 6, 2015, Mr. Joshua was at a community barbeque in the Bronx. While
at the barbeque, Mr. Joshua observed police officers arrest another individual and decided to record the interaction on his smartphone. Police officers approached Mr. Joshua and placed him under arrest. After spending a night in police custody, Mr. Joshua was arraigned in Bronx Criminal Court on June 7, 2015 and charged with resisting arrest, inciting to riot, obstruction of governmental administration, and disorderly conduct, all misdemeanors or non-criminal violations.
103. Mr. Joshua has had 13 scheduled court dates, including 11 Trial Dates. As of January 23, 2017, Mr. Joshua’s case will have been pending for 596 days.
104. On six Trial Dates, both parties were ready to proceed to trial, but there were no Trial Parts available.
105. On three Trial Dates, the prosecution stated not ready for trial and requested adjournments.
106. Mr. Joshua’s case is still pending. Court Delay has consistently prevented Mr. Joshua from obtaining a speedy trial in violation of his constitutional rights.
107. Mr. Joshua has been required to be present at the majority of his court appearances, sometimes waiting hours before his case was called. He has had to use personal days to take off time from work, and the resulting work absences have caused tension with Mr. Joshua’s supervisor and coworkers. It has also caused Mr. Joshua anxiety and has affected his family.

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IV. Systemic Violations of the Right to Trial and Speedy Trial in Bronx Criminal Court 108. The harm to the Named Plaintiffs and the putative class members directly results
from a policy, pattern, and practice of excessive and unreasonable Court Delay that plagues Bronx Criminal Court; violates due process and the right to a speedy trial; and makes it virtually impossible for people accused of misdemeanor crimes in the Bronx to exercise their right to trial in a meaningful and timely manner. The Crushing Backlog of Misdemeanor Cases
109. Bronx Criminal Court has jurisdiction over all misdemeanor cases prosecuted in the Bronx. In 2015, there were 45,928 misdemeanor arraignments in Bronx Criminal Court, significantly fewer than the number of case filings in Manhattan (62,350), Brooklyn (60,511), or Queens (46,360). Yet, Bronx Criminal Court had 12,527 misdemeanor cases pending at the end of the year, compared to 9,930 in Brooklyn, 10,885 in Manhattan, and 8,081 in Queens.
110. In the past year, the number of misdemeanor cases pending in the Bronx has increased, even while the number of misdemeanor arraignments has decreased. Excessive and Unreasonable Systemic Delays in Processing Misdemeanor Cases
111. The Standards and Goals Guidelines for the Disposition of Criminal Cases issued by the New York Courts (“NY Court Standards”) are an administrative tool developed and disseminated by the judiciary in 2008 “to assist the courts at every level in monitoring the progress of cases through the criminal court system.”11 The NY Court Standards dictate that a misdemeanor case should reach final disposition within 90 days of arraignment.
112. The NY Court Standards are consistent with national standards. In 2011, The National Center for State Courts, the Conference of State Court Administrators, the Conference
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11 Merger Report, supra note 3, at 31.

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of Chief Justices, the American Bar Association House of Delegates, and the National Association for Court Management all adopted case disposition guidelines dictating that 90% of misdemeanor cases should be resolved within 90 days.12
113. In the Bronx, however, these guidelines are meaningless. At the end of 2015, the average age of misdemeanor cases pending in the Bronx was 219 days; over 64% of Bronx Criminal Court’s pending cases exceeded NY Court Standards; and 19% of cases (2,378) were over 365 days old. There were 538 cases that had been pending for over two years.
114. In December 2013, the last time citywide comparative data was publicly available, the Bronx had more misdemeanors pending in excess of one year (2,106) than the four other boroughs of New York City combined—Brooklyn (657), Manhattan (594), Queens (331), and Staten Island (287). These numbers are even more telling when compared to the respective boroughs’ pending misdemeanor caseloads. In the Bronx, 14.5% of the pending cases were over a year old, compared to 4.9% in Manhattan, 5.3% in Brooklyn, and 4.1% in Queens.
115. In early 2014, the New York Courts created the Bronx Misdemeanor Standards & Goals Part (“MSG”), a specialized courtroom dedicated to processing the oldest misdemeanors in Bronx Criminal Court, presided over by the Supervising Judge of Bronx Criminal Court. By the end of 2015, there were 426 misdemeanor cases pending in MSG, with an average pending age of 827 days. That was an increase of 84 days from the previous year, when the average pending age of cases in MSG was 743 days, and an increase of 264 days from the time MSG was founded, when the average age of cases pending in MSG was 563 days.

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12 Richard Van Duizend, David C. Steelman & Lee Suskin, Nat’l Ctr. for State Courts, Model
Time Standards for State Trial Courts (2011), available at http://www.ncsc.org/Services-and-
Experts/Technology-tools/~/media/Files/PDF/CourtMD/Model-Time-Standards-for-State-Trial-
Courts.ashx.

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The Failure to Ensure the Right to a Trial 116. Due to the policy, pattern, and practice of systemic Court Delay, cases cannot get
resolved. Delay and congestion beget more delay and congestion as the number of pending cases competing for scarce resources increases. The longer a case is pending, the more likely it is that witnesses will become unavailable. The backlog increases caseloads for defense attorneys and prosecutors alike, and it is harder for everyone to do their jobs. For prosecutors, in particular, it becomes difficult to evaluate a case and make an appropriate plea bargain offer until the threat of a trial is imminent.
117. In 2015, the average age of cases resolved in the AP Parts was 162 days, 80% longer than the 90 days prescribed by the NY Court Standards. By contrast, the average disposition age in Brooklyn was just 18% longer than the standard (106 days); in Queens, 31% longer than the standard (118 days); and in Manhattan, 34% longer than the standard (121 days).
118. Most significantly, the few misdemeanor defendants who are able to exercise their right to trial in the Bronx must wait on average 688 days for a non-jury bench trial and 897 days for a jury trial. The wait for a jury trial in the Bronx is 120% higher than in Brooklyn (407 days), 58% higher than in Manhattan (568 days), and 48% higher than in Queens (605 days).
119. The age of cases in Bronx Criminal Court is both a symptom and a cause of the failure to ensure the right to a trial for people accused of misdemeanors in the Bronx. As a 2009 report by the New York Courts found, a court’s “capacity to dispose of its cases flows directly from its ability to provide an imminent trial.”13 In Bronx Criminal Court, there are many thousands of misdemeanor cases scheduled for trial every four-week term. In that same period, there are, on average, fewer than eight trials.
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13 Merger Report, supra note 3, at 20.

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120. Having more functioning Trial Parts at any given time would help ease Court Delay. The six misdemeanor Trial Parts in Bronx Criminal Court, however, regularly sit idle— often with the doors locked—unable to conduct trials for want of judges, clerks, court officers, or court reporters. According to Bronx Criminal Court’s own records, in 2015 the Trial Parts had judges assigned to them only 69% of the time (excluding court holidays).14
121. This figure, however, dramatically overstates the Court’s actual, current trial capacity. A significant percentage of the time that judges are assigned to Trial Parts, the courtrooms are actually closed. Even when Trial Parts are technically open, there is frequently no activity in the courtroom. As one reporter found, “many of the trial parts . . . were simply not open,” and “it is also unclear how it is determined when a trial part is in use: a judge told attorneys all trial parts were in use when a visit to one nearby found another judge sitting in an empty room.”15
122. In the overwhelming majority of cases scheduled for trial where both the prosecution and defense are ready to proceed, there are no Trial Parts available to conduct proceedings. Only a small percentage of cases are actually sent to Trial Parts, and an even smaller percentage actually commence proceedings. The remaining “trial-ready” cases are adjourned, only to repeat the exercise weeks or months later.
123. Most misdemeanor cases present few, if any, legal novelties or factual complexities. Often, the only witnesses are New York City police officers and the evidence consists of little more than the property, if any, recovered at the time of arrest. Trials, when they

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14 Bronx Criminal Court, Schedules of Judges Assignments: Terms 1-13 (2015). 15 Catie Edmondson, Progress Elusive as Bronx DA Cruises Toward Reelection, Gotham
Gazette, Aug. 11, 2015, http://www.gothamgazette.com/index.php/government/5845-progress-
elusive-as-bronx-da-cruises-toward-reelection.

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do occur, can often be conducted in a day, or even an afternoon. It is exceedingly rare that a misdemeanor trial lasts more than two or three days.
124. In 2015, however, there were only 98 misdemeanor trials in the Bronx, compared to 164 in 2014, representing an over 40% decrease year-over-year. V. New York’s Statutory Framework: For Prosecutors Only
125. The right to a speedy trial is codified in New York Criminal Procedure Law §§ 30.20 and 30.30. Section 30.20 mandates that “[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial.” In practice, the mechanism through which judges enforce the right to a speedy trial is § 30.30.
126. Although § 30.30 is generally referred to as New York’s “statutory speedy trial right,” it functions more as a “prosecutorial readiness rule.” This is by design.
127. Section 30.30 requires prosecutors to be ready for trial within 90 days of arraignment for A misdemeanors, 60 days for B misdemeanors, and 30 days for non-criminal violations (the “§ 30.30 Time Limits”).
128. Section 30.30 lays out clear substantive guidelines for judicial decisionmaking: §§ 30.30(1)(b)-(d) set forth the § 30.30 Time Limits; § 30.30(3) exempts certain types of cases from § 30.30 analysis; § 30.30(4) sets out time periods to be excluded from a court’s calculation of statutory speedy trial time; and § 30.30(5) creates special rules for specific circumstances (such as when felonies are reduced to misdemeanors). The remedy for a violation of § 30.30 is not discretionary: a court must dismiss a criminal case when the prosecution is not ready for trial within the § 30.30 Time Limits.
129. Section 30.30 is the product of a specific historical moment. In 1971, the Second Circuit, sitting en banc, expressed alarm that “there were 2,899 persons accused of felony in New

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York State who had been held in jail three months or more awaiting disposition of the charges against them,” and urged the state to “fashion a rule which will require standards of performance designed to guarantee speedy trials in state cases.” U.S. ex rel. Frizer v. McMann, 437 F.2d 1312, 1314, 1316 (2d Cir. 1971).
130. The Administrative Board, the administrative-policy arm of the New York Courts, proposed rules that would have required, among other things, dismissal of any criminal prosecution that was not brought to trial within six months.16
131. In response to a concern that the administrative rules might cause a “legalized jailbreak,” the State District Attorneys Association proposed § 30.30, a prosecutorial readiness rule rather than a speedy trial rule.17 It was passed three days before the Administrative Board’s proposal was to become effective, preempting the proposed six-month speedy trial rule.
132. As a result, statutory speedy trial time accrues only when the prosecution is responsible for the delay in the proceedings. Section 30.30 excludes from statutory speedy trial calculations delays due to Court Delay, such as when there are no Trial Parts available or when congested court calendars require extended adjournments between scheduled trial dates.
133. It is common practice for prosecutors in Bronx Criminal Court to state “not ready” for trial and request short adjournments, often for one week. Because of pervasive Court Delay, however, cases are routinely adjourned for one to two months at a time. In such circumstances, only the requested adjournment, rather than the actual adjournment, is charged to the § 30.30 Time Limits.

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16 Report of the Administrative Board of the Judicial Conference of the State of New York
(1972). 17 Francis X. Clines, Bill Would Slow Fast-Trial Order, N.Y. Times, Feb. 7, 1972.

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134. Moreover, when both the prosecution and defense counsel state “ready” to begin trial, but there are no judges, court staff, or courtrooms available to commence trial, cases are regularly adjourned for weeks or months at a time. None of that time is charged against the § 30.30 Time Limits.
135. This dynamic results in cases stretching out long past the time contemplated by the § 30.30 Time Limits and the NY Court Standards. Cases linger on the docket for years on end, adjourned repeatedly for trial, while only a small fraction of the time is charged against the § 30.30 Time Limits. And because Trial Parts are so rarely available, prosecutors’ actual trial readiness is rarely tested.
136. Both supporters and opponents of § 30.30 at the time of its enactment recognized its limitations as a mechanism to ensure the right to a speedy trial. Governor Rockefeller, who supported the passage of § 30.30, acknowledged that “without substantial modernization of our court system, without efficient case processing methods, and centralized court management and the necessary resources for both the courts and the components of the criminal justice system whose activities bear importantly on court operations, [§ 30.30] will not guarantee prompt trials or provide justice in the full and true sense of the word.”18 His words have proved prophetic. Another senator admitted, “I am voting for this bill very reluctantly because it is only a stopgap measure. This is not justice. This is not the kind of administration that is going to restore the confidence of the people in the courts.”19

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18 Governor’s Approval Memorandum at 2, Bill Jacket, L. 1972, ch. 184. 19 N.Y. Senate Debate on Assembly Bill A10687-A, at 19 (1972) (statement of Sen. Bloom).

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VI. Defendants’ Failure to Remedy Known Violations
137. Defendants in this case have long been aware of the systemic and pervasive Court
Delay in Bronx Criminal Court and its effect on due process, the right to trial, and the right to a
speedy trial. Yet, they have repeatedly failed to remedy the violations.
138. For example, in a 2009 public report, the New York Courts recognized the need to
expand trial capacity in the Bronx, recommending, in part, an increase in trial capacity through the assignment of additional judges and court staff.20
139. From 2009 through 2015, the New York Courts absorbed nearly $400 million in increased costs, while its budget increased only $27.5 million.21 During this time, the New York Courts lost 2,000 employees.22 Former Chief Judge Lippman predicted that the failure of the
budget to keep up with costs would “have a tremendous impact on the system. At a minimum, [we are] going to see delays in the administration of justice, without question.”23
140. That is exactly what has happened. As described by former Chief Administrative
Judge Gail Prudenti, “[t]he substantial reduction in our workforce has depleted back-office staff,
with resulting delays in processing court documents, frustrating the timely disposition of cases.
In many courthouses, the loss of court officers and other courtroom staff has made it increasingly
difficult to staff all court parts. Back-office employees have at times been redeployed to
courtroom duties, causing further delays in the processing of documents, or officers and
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20 The study found that “for every additional trial part added, an average of 490 additional dispositions are reached, either by trial or by plea in the trial part or by plea in a motion/conference part.” Merger Report, supra note 3, at 20. 21 See Report in Support of the Judiciary’s 2015-2016 Budget Request, N.Y.C. Bar Ass’n 1 (Feb. 2015), http://www2.nycbar.org/pdf/report/uploads/20072866-ReportinSupportoftheJudiciarys 2015-2016BudgetRequest.pdf [hereinafter “N.Y.C. Bar 2015-2016 Report”]. 22 See id. at 2. 23 Thomas Kaplan, Chief Judge Says Deal Will Require Hundreds of Layoffs in Court System, N.Y. Times, Mar. 28, 2011, http://www.nytimes.com/2011/03/29/nyregion/29cuts.html.

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courtroom clerks are shared between courtrooms, causing delays in the opening of court parts
until the required courtroom team is assembled. Reduced staffing is causing delays in trials and
in deciding motions.”24 Another former Chief Administrative Judge, Ann Pfau, had a similar
assessment: “We know [the budget cuts are] having an impact . . . People are waiting longer to
get to trial, and there are fewer trials.”25 Former New York City Criminal Court Administrative
Judge Barry Kamins bemoaned that “we simply don’t physically, economically have the
resources to get by.”26 Both Judge Prudenti and Defendant Chief Administrative Judge Marks,
then serving as First Deputy Chief Administrative Judge, warned that “[a]fter five years of
essentially flat budgets from 2009-10 to 2013-14,”27 the Judiciary would no longer be able to
“meet its constitutional mission” without additional funding.28
141. In April 2013, former Chief Judge Jonathan Lippman publicly acknowledged the
“glaring problems” in the Bronx associated with Court Delay that date back “as long as [he] can
remember,” referring to Court Delay in the Bronx as “intolerable” and “entirely unacceptable.”29
142. In December 2013, the New York Courts explicitly acknowledged the widespread
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24 Jonathan Lippman et al., New York State Unified Court System Budget: Fiscal Year 20142015, at iii (2013), available at https://www.nycourts.gov/admin/financialops/BGT14-15/201415-Budget.pdf. 25 John Caher & Andrew Keshner, Deep Overtime Cuts Bring Delay, Rethinking of Case Presentation, N.Y.L.J., Nov. 28, 2011. 26 Alice Brennan, Right to a Speedy Trial? This Innocent Teenager Waited 3 Years in Jail, Fusion, Apr. 28, 2014, http://fusion.net/story/5419/right-to-a-speedy-trial-this-innocent-teenagerwaited-3-years-in-jail. 27 See Letter from A. Gail Prudenti to Andrew M. Cuomo (Dec. 1, 2014), in Jonathan Lipmann et al., New York State Unified Court System Budget: Fiscal Year 2015-2016 (2014), available at http://www.nycourts.gov/admin/financialops/BGT15-16/2015-16-UCS-BUDGET.pdf. 28 See Joint Legislative Hearing on the 2014-2015 Judiciary Budget: Remarks of Chief Administrative Judge A. Gail Prudenti, N.Y. State Assembly 1 (Feb. 5, 2014), http://assembly.state.ny.us/write/upload/files/testimony/20140205/20140205-PublicProtectionPrudenti.pdf; see also Report in Support of the Judiciary’s 2014-2015 Budget Request, N.Y.C. Bar Ass’n (Feb. 2014), http://www2.nycbar.org/pdf/report/uploads /2014JudiciaryBudgetJudicialAdministrationReportFINAL2.4.14.pdf. 29 Glaberson, supra note 5.

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Court Delay in Bronx Criminal Court and listed as factors contributing to the problem “a large misdemeanor inventory” and “insufficient trial capacity, exacerbated by a shortage of judges to consistently preside over jury trial parts.”30
143. A February 2015 report by the New York City Bar Association affirmed that the failure to fund properly the New York City Criminal Court, of which Bronx Criminal Court is a part, has resulted in a shortage of judicial resources across all five of New York City’s boroughs: “In Criminal Court, too few court officers, clerical staff, and reporters results in the closure of trial parts at the last moment. Often there are available judges who are precluded from presiding over their parts. Such conditions cause delays in trials, including those for incarcerated individuals.”31
144. In response to these concerns, and to a request from the judiciary for a 2.7% funding increase for the 2014-2015 year, Governor Cuomo touted that “[f]or the past three years my Administration and the Legislature have kept spending increases below 2 percent.” He characterized the budget request as “out of step with our fiscally responsible goal for all of New York State government,” and stated his belief that “an efficient and effective Judiciary can robustly fulfill its constitutional duties with a spending increase at or below 2 percent.” He then urged the Legislature and the New York Courts to “reduce the Judiciary budget so that it is in line with the rest of State spending.”32
145. Funding for the New York Courts has failed to keep up with case backlogs. The 2016-2017 state budget, announced by Governor Cuomo in mid-April 2016, included a funding
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30 Dec. 2013 Press Release, supra note 3. 31 N.Y.C. Bar 2015-2016 Report, supra note 21, at 3. 32 Commentary of the Governor on the Judiciary, N.Y. State Div. of Budget (2014-15), https://www.budget.ny.gov/pubs/archive/fy1415archive/eBudget1415/agencyPresentations/pdf/C ommentary.pdf.

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increase of $44.4 million for the New York Courts, representing a 2.4% increase over the previous year’s budget. The new budget, however, fails to offset $19.5 million of the $27.2 million cost of mandatory raises for New York’s judges going into effect this year.
146. For over a decade, the New York Courts have repeatedly promised reforms to address Court Delay, but have failed to remedy the systemic constitutional violations. For example, in November 2004, the New York Courts merged Bronx Criminal Court with the Criminal Term of Bronx County Supreme Court (the “Merger”) in an effort to curb felony and misdemeanor case backlogs. While a 2009 report by the New York Courts found that the Merger had largely failed to achieve its overall goals, it also found that the number of misdemeanor trials jumped to nearly 350 per year and remained close to 300 through 2009.33 Despite the improvement in misdemeanor trial capacity, which the 2009 report called “the most important factor in driving the resolution of criminal cases,”34 the New York Courts abandoned the Merger in 2012. A year later, Bronx Criminal Court’s backlog of cases pending for more than a year was greater than the four other boroughs of New York City combined.
147. In 2013, the New York Courts announced a misdemeanor initiative to address the problem, including but not limited to: (a) pledging three additional judges to the Bronx “to preside exclusively over misdemeanor trials”; and (b) implementing strict case management practices, such as shorter adjournments and tighter motion schedules.35 The reforms have either not materialized or have failed to remedy the problem. Some reforms, such as a focus on shortening adjournment times, have actually had a negative impact on the system: while the average length of adjournments has decreased, the average time to disposition has increased,
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33 Merger Report, supra note 3, at 13. 34 Id. at 1. 35 Dec. 2013 Press Release, supra note 3.

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meaning that defendants are forced to come back to court even more frequently over longer periods of time, increasing the burden of having an open case and diverting additional judicial resources.
148. Prosecutors have also expressed concern about systemic Court Delay and its impact. Former Bronx District Attorney Robert Johnson stated, “I believe [the Bronx] ha[s] really trailed behind in [trial capacity] for the past couple of decades. We need to take a longterm look concerning additional judges, additional courtrooms, and additional staff to better handle the caseloads we are getting in.”36 Other members of the District Attorney’s office have echoed Johnson’s sentiments. One senior prosecutor asserted that “[o]ne of the primary problems we deal with is resources: judges, court rooms, court reporters, court officers that are needed . . . the more of that we have, the more efficient the system would be,” while another former prosecutor lamented that “[t]here were never enough courtrooms to meet the needs of having a defendant tried in a timely fashion, there is no doubt about that. So with more judges and more courtrooms, we’d be able to address the backlog of cases.”37
149. The new Bronx District Attorney, Darcel Clark, has identified Court Delay as one of the major problems facing the Bronx Criminal Court, noting, “I sat as a judge in the Bronx for 13 years, I know the delays that have hampered prosecution of cases.” Clark has called for more judges in the Bronx.38

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36 Interview, District Attorney Rob Johnson: Justice and the Bronx, The Bronx Chronicle, Dec.
5, 2014, http://thebronxchronicle.com/2014/12/05/district-attorney-rob-johnson-justice-bronx. 37 Catie Edmondson, Progress Elusive as Bronx DA Cruises Toward Reelection, Gotham
Gazette, Aug. 11, 2015, http://www.gothamgazette.com/index.php/government/5845-progress-
elusive-as-bronx-da-cruises-toward-reelection. 38 Rebecca Davis O’Brien, Likely Bronx DA Has Plans, Wall St. J., Oct. 27, 2015,
http://www.wsj.com/articles/likely-bronx-da-has-plans-1445994155.

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150. Given the extensive and persistent nature of systemic Court Delay in Bronx Criminal Court, it has been the subject of widespread press coverage. In 2013, the New York Times published a four-part series exploring the culture of delay in the Bronx courts, recognizing that “[t]he [Bronx] courts are so dysfunctional that those accused of minor offenses— misdemeanors like trespassing or driving with a suspended license—have all but lost the fundamental guarantee of the American legal system: the right to a trial.”39
151. Despite extensive media coverage and their own repeated acknowledgment of the depth of the debilitating Court Delay in Bronx Criminal Court, the Defendants have consistently failed to remedy the ongoing and widespread constitutional violations. Defendants have failed to provide adequate resources, failed to allocate and manage existing resources properly, and failed to train, supervise, and monitor the staff and judges adequately to ensure compliance with constitutional mandates. VII. The Human Costs of Systemic Court Delay
152. Plaintiffs face a deprivation of their right to due process under the Fourteenth Amendment to the United States Constitution. They also face a denial of their speedy trial rights under the Sixth and Fourteenth Amendments to the United States Constitution.
153. The systemic violations of due process and the right to a speedy trial wreak havoc on the lives of people charged with misdemeanors. Beyond the physical and psychological toll exacted by seemingly interminable and disproportionate delays—which, because of court congestion and a lack of trial capacity, may go on for years—each postponement of trial brings with it the potential for another missed day of work, lost wages, school absence, rescheduled
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39 William Glaberson, In Misdemeanor Cases, Long Waits for Elusive Trials, N.Y. Times, Apr. 30, 2013, http://www.nytimes.com/2013/05/01/nyregion/justice-denied-for-misdemeanor-casestrials-are-elusive.html.

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medical appointment, financial hardship, or childcare emergency. People accused of misdemeanor offenses must pay for transportation to and from court. Repeated absences from work can strain relationships with current employers, and potential future employers are less likely to hire people when a background check reveals a pending criminal case. And the longer a case lasts, the more likely it is that a person will miss court and have a warrant issued for his or her arrest.
154. For people working in the public sector or in jobs requiring state-issued licenses—such as security guards, home health aides, or cab drivers—an open case may lead to an immediate suspension without pay and, ultimately, termination.
155. These damaging effects have been exacerbated by the recent practice of requiring people to come to court more frequently over the course of their cases for perfunctory appearances. Although the average age of a misdemeanor case pending in Bronx Criminal Court between January 2014 and December 2015 did not materially change, the average adjournment—the length of time between court dates—decreased from 43 days to 36 days. Thus, people are being required to return to court more often without any additional prospect of receiving a trial.
156. Despite the fact that the overwhelming majority of court appearances amount to little more than calendaring exercises that are concluded in minutes, people charged with misdemeanors are often forced to spend hours or even entire days waiting for their court appearances.
157. The tremendous costs and harms associated with these violations—including lost wages and adverse effects on employment prospects—fall particularly hard on residents of the Bronx, where unemployment rates are significantly higher than in the rest of New York City.

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158. Faced with the reality that trials are, for all intents and purposes, unattainable for the vast majority of people accused of misdemeanors in the Bronx, many are forced to abandon their constitutional right to a trial and resolve their cases through a negotiated disposition rather than wait for a trial that may never materialize.
CLAIMS FOR RELIEF First Claim for Relief
(Violation of Due Process under the Fourteenth Amendment) 159. Plaintiffs reallege and incorporate by reference the foregoing paragraphs. 160. Defendants, acting under the color of law, have enforced, promoted, encouraged, and sanctioned a policy, practice, and/or custom of excessive and unreasonable systemic Court Delay in Bronx Criminal Court. By permitting, tolerating, sanctioning, and causing such widespread systemic Court Delay, Defendants have deprived Named Plaintiffs, as well as the members of the class they seek to represent, of their due process right to have a trial at a meaningful time and in a meaningful manner as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
Second Claim for Relief (Violations of the Sixth and Fourteenth Amendments) 161. Plaintiffs reallege and incorporate by reference the foregoing paragraphs. 162. Defendants, acting under the color of law, have enforced, promoted, encouraged, and sanctioned a policy, practice, and/or custom of excessive and unreasonable systemic Court Delay in Bronx Criminal Court. By permitting, tolerating, sanctioning, and causing such widespread systemic Court Delay, Defendants have deprived Named Plaintiffs, as well as the members of the class they seek to represent, of their right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983.

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163. Defendants, acting under the color of law, have enforced, promoted, encouraged, and sanctioned a policy, practice, and/or custom of excessive and unreasonable systemic Court Delay in Bronx Criminal Court. By permitting, tolerating, sanctioning, and causing such widespread systemic Court Delay, Defendants have constructively deprived Named Plaintiffs, as well as the members of the class they seek to represent, of their right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
164. Certify this action as a class action on behalf of the proposed class pursuant to Rule 23 of the Federal Rules of Civil Procedure;
165. Declare that Defendants’ acts, practices, polices, and/or omissions deprive Plaintiffs of their rights under the Sixth and Fourteenth Amendments to the United States Constitution;
166. Provide appropriate equitable relief; 167. Award reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and 168. Grant such other and further relief as the Court may deem just and proper.

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Dated:

January 23, 2017 Bronx, New York

THE BRONX DEFENDERS
By: _______________________
Scott D. Levy Johanna B. Steinberg 360 East 161st Street Bronx, NY 10451 (718) 838-7878 scottl@bronxdefenders.org johannas@bronxdefenders.org
EMERY CELLI BRINCKERHOFF & ABADY LLP
Matthew D. Brinckerhoff Ilann M. Maazel Douglas E. Lieb 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 mbrinckerhoff@ecbalaw.com imaazel@ecbalaw.com dlieb@ecbalaw.com
MORRISON & FOERSTER LLP
Gary S. Lee Ruti Smithline Jennifer K. Brown Katie L. Viggiani James A. Newton 250 West 55th Street New York, NY 10019 (212) 468-8000 glee@mofo.com rsmithline@mofo.com jbrown@mofo.com kviggiani@mofo.com jnewton@mofo.com
Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CHRISTOPHER TROWBRIDGE, MICHAEL TORRES, RONNIE PAGAN, JUAN ORTIZ, LUIS VIRELLA, JASON GARCIA, and JOSEPH JOSHUA, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
-against-
JANET DIFIORE, in her official capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System; and LA WRENCE MARKS, in his official capacity as Chief Administrative Judge of the Unified Court System,
Defendants.

No. 16-CV-3455 (GBD)(GWG)

STIPULATION AND ORDER OF SETTLEMENT WHEREAS, Christopher Trowbridge, Michael Torres, Ronnie Pagan, and Juan Ortiz commenced this action by filing a Complaint on or about May 10, 2016 (ECF No. 1), alleging, inter alia, that Janet Di Fiore, in her official capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System ("Chief Judge Di Fiore"), Lawrence Marks, in his official capacity as Chief Administrative Judge of the Unified Court System ("Chief Administrative Judge Marks"), and Andrew Cuomo, in his official capacity as Governor of the State of New York (''Governor Cuomo"), violated their constitutional rights under the Sixth and Fourteenth Amendments by sanctioning and maintaining a system of persistent delays

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in the processing of misdemeanor cases, court congestion, and case backlogs (collectively, "Court Delay") in New York City Criminal Court, Bronx County ("Bronx Criminal Court"), thereby denying their rights to trial and speedy trial; and
WHEREAS, on or about June 30, 2016, Defendants moved to dismiss the Complaint on various grounds including, inter alia, abstention principles, lack of standing, and failure to state a claim (ECF Nos. 29-30); and
WHEREAS, on or about December 21, 2016, the Court (1) denied Defendants' motion to dismiss the Complaint due to abstention principles; (2) dismissed all claims against Governor Cuomo; (3) held that Plaintiffs properly stated a claim for relief against Chief Judge Di Fiore and Chief Administrative Judge Marks; and (4) granted Defendants' motion to dismiss the Complaint for lack of standing (ECF No. 39); and
WHEREAS, on or about January 23, 2017, Luis Virella, Jason Garcia, and Joseph Joshua, together with Trowbridge, Torres, Pagan, and Ortiz (collectively, "Plaintiffs"), filed a letter motion for leave to file an Amended Complaint, together with a proposed Amended Complaint alleging that Chief Judge Difiore and Chief Administrative Judge Marks (collectively, "Defendants"), in their official capacities, violated Plaintiffs' constitutional rights under the Sixth and Fourteenth Amendments by sanctioning and maintaining a policy of Court Delay in Bronx Criminal Court, thereby denying their rights to trial and speedy trial (ECF Nos. 41-42); and
WHEREAS, on or about January 26, 2017, Defendants opposed Plaintiffs' application to file the proposed Amended Complaint (ECF No. 43); and
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WHEREAS, on or about March 8, 2017, at a conference before the Court, the Court accepted Plaintiffs' proposed Amended Complaint and directed Defendants to answer the Amended Complaint (ECF No. 49); and
WHEREAS, on or about March 22, 2017, Defendants moved for reconsideration of the Court's acceptance of the Amended Complaint (ECF Nos. 53-54); and
WHEREAS, on or about April 14, 2017, Plaintiffs opposed Defendants' motion for reconsideration (ECF Nos. 61-62), and on or about April 25, 2017, Defendants filed a reply memorandum of law in further support of their motion for reconsideration (ECF No. 63); and
WHEREAS, as of the date of this Agreement, Defendants' motion for reconsideration is still pending before the Court and Plaintiffs expressly preserve all objections to the motion for reconsideration; and
WHEREAS, on or about March 8, 2017, Plaintiffs moved for class certification (ECF Nos. 45-47), and on or about May 5, 2017, Defendants opposed Plaintiffs' motion for class certification (ECF Nos. 65-67); and
WHEREAS, on or about February 26, 2018, Defendants supplemented their opposition to Plaintiffs' motion for class certification (ECF Nos. 87-89); and
WHEREAS, on or about March 12, 2018, Plaintiffs filed reply papers in further support of their motion for class certification (ECF Nos. 92-93); and
WHEREAS, as of the date of this Agreement, Plaintiffs' motion for class certification is still pending before the Court and Defendants expressly preserve all objections to class certification; and
WHEREAS, Defendants have expressly denied and continue to deny all allegations of wrongdoing and liability as set forth in the Complaint and the Amended Complaint; and
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WHEREAS, Defendants maintain that Younger v. Harris, 401 U.S. 37 (1971) and O'Shea v. Littleton, 414 U.S. 488 ( 1974) mandate abstention, and expressly preserve all defenses and objections to the Complaint and the Amended Complaint, including, but not limited to, abstention principles, lack of standing, and failure to state a claim; and
WHEREAS, Plaintiffs maintain that they have properly stated a claim for relief against Defendants; that Plaintiffs have standing; and that abstention is not mandated and this Court has properly exercised its jurisdiction; and
WHEREAS, the claims and allegations set forth in the Complaint and Amended Complaint, together with all related filings and proceedings, constitute "the Litigation"; and
WHEREAS, by entering into this Agreement, Defendants do not make any admission of wrongdoing or liability; and
WHEREAS, Plaintiffs and Defendants wish to resolve this action and any and all other disputes relating to the subject matter of the Litigation, between them, fully and voluntarily, without further litigation and without admission of fault or liability;
IT IS HEREBY AGREED between Plaintiffs and Defendants that: STAY OF THE LITIGATION FOR A PERIOD OF FOUR YEARS
l. Settlement Period. The Litigation, including all pending deadlines and motions, shall be stayed for a period of four years from the date this Agreement is so-ordered by the Court (the ·'Settlement Period"), unless the Litigation is reinstated pursuant to Paragraph 2.
2. Plaintiffs' Right to Reinstate and Continue the Litigation. At any point during the Settlement Period, Plaintiffs may terminate the stay and reinstate the Litigation subject to the notice and meeting requirements in Paragraph 3. Defendants shall not oppose the reinstatement of the Litigation during the Settlement Period on any basis other than Plaintiffs' failure to
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comply with the notice and meeting requirements in Paragraph 3. Defendants shall preserve and maintain all available defenses in the Litigation.
3. Notice and Meeting Requirements for Reinstating Litigation. In the event Plaintiffs intend to reinstate the Litigation, Plaintiffs must notify Defendants' counsel in writing at least 30 days prior to doing so. Such notification shall include copies of any documents or data upon which Plaintiffs' decision to reinstate the Litigation relies and any documents or data Plaintiffs intend to submit to the Court. Within the 30-day period prior to Plaintiffs' reinstatement of the Litigation, counsel for the parties shall meet and confer in good faith to address any concerns identified by Plaintiffs and to discuss possible solutions.
4. Effect of Reinstatement of Litigation. If the Litigation is reinstated pursuant to Paragraph 2 at any time during the Settlement Period, the Litigation shall resume in the same posture as of the date this Agreement is so-ordered by the Court. All pending motions shall be restored to the Court's docket; Plaintiffs shall retain all rights to pursue any and all available relief; and Defendants shall retain all rights to assert any and all available defenses. Neither the existence of this Agreement nor its terms shall constitute a waiver of any avai !able claims, defenses, or remedies in the event the Litigation is reinstated.
5. End of Settlement Period. If Plaintiffs do not reinstate the Litigation during the Settlement Period pursuant to Paragraph 2, then, at the end of the Settlement Period, Plaintiffs' claims shal I be dismissed with prejudice pursuant to Fed. R. Civ. P. 41 (a), without costs or fees to any party.
6. Non-Binding Case Resolution Target. Defendants will continue their efforts to decrease the number of misdemeanor cases pending for more than one year in Bronx Criminal
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Court. Defendants' ultimate goal is to reduce the number of such cases to zero. This goal is not

binding or legally enforceable.

DATA SHARING

7.

Data Sharing. During the Settlement Period, the New York State Unified Court

System's Office of Court Administration ("OCA") shall share data and reports pertaining to

Court Delay, trial capacity, and the allocation ofjudicial resources within the New York City

Criminal Court and Bronx Criminal Court on a regular basis, as specified in Paragraphs 9-12 and

21-22. As specified in this Agreement, certain data and reports shall be provided to Plaintiffs,

and, at the discretion of OCA, to representatives of institutional Bronx Criminal Court

stakeholders, including, but not limited to, The Bronx Defenders, the Legal Aid Society, the

Assigned Counsel Plan for the First Department, and/or the Bronx County District Attorney

(institutional stakeholders collectively referred to hereinafter as the "Stakeholders").

8. Confidential Information and Data. All data exchanged pursuant to this

Agreement will be subject to the terms and conditions of the Stipulated Protective Order, so-

ordered by the Court on May 17, 2017 (ECF No. 70). Nothing in this Agreement shall prevent

Plaintiffs from sharing any non-confidential information or data with other persons or entities,

including other Stakeholders. No Personally Identifying Information (or information added to

data that would render it identifiable) shall be included in any finding, report, publication, paper,

brief or similar document, public data dashboard, or other internet posting produced as a result

of, or in conjunction with, the use of the data ("Publication"). "Personally Identifying

Information" shall include data or information that includes a person's name or address, case

identifier (including, but not limited to, a New York State ID number, Social Security Number,

arrest number, or court docket number) or other data that can be linked uniquely to such person.

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If Plaintiffs should publish any non-confidential, non-personally identifiable data, they must

prominently display a disclaimer in any such Publication stating: "Any data provided herein

does not constitute an official record of the New York State Unified Court System, which does

not represent or warrant the accuracy thereof The opinions, findings, and conclusions expressed

in this publication are those ofthe authors and not those of the New York State Unified Court

System, which assumes no liability for its contents or use thereof "

9.

Bronx Criminal Court Misdemeanor Activity Reports. OCA shall provide

Plaintiffs an up-to-date copy of the Bronx Criminal Court Misdemeanor Activity Report, or any

equivalent report, promptly after it is completed after the close of each Judicial Term and no

more than ten days after completion.

10. OCA CRIMS Data Extract. OCA shall provide Plaintiffs access to the annual

data extract from the OCA Criminal Records and Information Management System ("CRIMS"),

or any successor data management system, with de-identified information for sealed and pending

cases, for Bronx Criminal Court on a yearly basis, prior to March 1 for each calendar year. De-

identified information shall mean information that does not include a person's name or address,

nor any case identifier or other data that can be linked uniquely to an individual. 11. Citywide 1 Judicial Rosters. OCA shall provide Plaintiffs citywide judicial rosters

twice per year, within ten days of the close of Judicial Term 6 and Judicial Term 13,

respectively.

12. Stakeholder Data. At least one week prior to any scheduled quarterly meeting of

the Stakeholders, as provided in Paragraphs 14-16, OCA shall provide Plaintiffs, and to the

1 For the purposes of data sharing pursuant to this Agreement, the term "citywide" shall include data concerning the New York City Criminal Court as a whole and each of its constituent county courts.
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extent OCA deems appropriate, other Stakeholders, with up-to-date copies of the following

(collectively, the "'Stakeholder Data"):

a.

Year-to-Date Filing and Disposition Trends and Weekly Changes in Pending

Misdemeanors chart for the New York City Criminal Court, or any equivalent

report;

b. Citywide data showing the mean age of cases at disposition for verdicts at bench

trials and jury trials;

c. The New York City Criminal Court Executive Summary, or any equivalent

report, showing total citywide case filings, arraignments, dispositions, cases

disposed at arraignment, cases pending disposition, cases pending sentence, the

number of jury trials commenced, the number of bench trials commenced, and the

number of calendared cases;

d. Average Days from Arraignment to Disposition chart for Bronx Criminal Court,

or any equivalent report;

e.

Bronx Criminal Court data showing the number of dispositions in trial parts by

top charge at arraignment, trial part, mean case age at disposition, type of

disposition (dismissal, adjournment in contemplation of dismissal, guilty plea,

trial acquittal, or conviction after trial), and, where a trial was held, whether the

trial was a bench trial or a jury trial;

f.

Data showing the number of cases pending disposition in trial parts in Bronx

Criminal Court by top charge at arraignment, trial part, and mean case age; and

g. A summary of the Trial Request Tracking Data pursuant to Paragraphs 21-22.

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In its discretion, OCA may provide any other data, reports, or statistics it deems relevant, although it is not obligated to provide any further data, reports, or statistics beyond those identified in this Paragraph and in Paragraphs 9-11 and 21-22 of this Agreement.
AGREEMENT TO MEET AND CONFER 13. Party Meetings. During the Settlement Period, counsel for the parties shall meet and confer to discuss issues related to this Settlement Agreement on a yearly basis (the "Yearly Meeting''). Plaintiffs and Defendants may also raise concerns and propose remedial action for consideration by the other party at any time during the Settlement Period. In raising concerns or proposing remedial action, any party may request a meeting with counsel for all parties, including the representative of OCA as designated pursuant to Paragraph 26, a maximum of twice per calendar year, not including the Yearly Meeting. In the event a party requests such a meeting, counsel for Plaintiffs and Defendants, including a representative of OCA, shall meet and confer to discuss any concerns or proposed remedial action in good faith within 30 days of the submission of any such concern or proposal in writing.
STAKEHOLDER MEETINGS 14. Stakeholder Meetings. The Supervising Judge of Bronx Criminal Court (the "Supervising Judge") shall convene periodic meetings ("Stakeholder Meetings") to review the Stakeholder Data and discuss Court Delay and trial capacity in Bronx Criminal Court on at least a quarterly basis. 15. Participants in Stakeholder Meetings. The Supervising Judge shall invite representatives of The Bronx Defenders and, as he or she deems appropriate, representatives of the other Stakeholders to the Stakeholder Meetings. The Supervising Judge, at his or her discretion and upon timely notice to the Stakeholders, may invite additional persons and/or
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entities to participate in a Stakeholder Meeting. Upon timely notice to the Supervising Judge and the Stakeholders, Plaintiffs may request that additional persons and/or entities, including Plaintiffs' counsel, be invited to participate in or observe a Stakeholder Meeting. The Supervising Judge shall have no obligation to consent to such requests, and can either approve or reject such requests in his or her discretion.
16. Stakeholder Meeting Agenda. The Bronx Defenders and invited Stakeholders may propose topics they wish to discuss at an upcoming Stakeholder Meeting by letter to the Supervising Judge sent at least one week prior to the scheduled Stakeholder Meeting. The Supervising Judge shall consider such proposals, and decide, in his or her discretion, whether to discuss the proposed agenda items at the Stakeholder Meeting.
TRIAL REQUEST TRACKING 17. Trial Request Tracking ("TRT"). Within 30 days of the date this Agreement is so-ordered by the Court, OCA will begin tracking and collecting data pertaining to cases designated by criminal defendants in Bronx Criminal Court who express a desire to move their cases to trial expeditiously (''TRT Cases") in accordance with Paragraphs 18-25 of this Agreement. 18. TRT Eligibility. Only cases pending in Bronx Criminal Court in which the top remaining charge is a misdemeanor or violation shall be eligible for designation as TRT Cases. Such cases will only be eligible for TRT designation (a) upon completion of all omnibus motion practice, and where there is a representation by the criminal defendant that he or she does not intend to file additional pretrial motions, (b) where there are no pending motions, (c) once the Bronx District Attorney has stated ready for trial in the matter on at least one occasion, and (d)
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where the criminal defendant states ready for trial and requests such designation during a

calendared court appearance.

19. Limits on TRT Designation. If a criminal case is eligible for designation as a

TRT Case in accordance with Paragraph 18, Bronx Criminal Court judges may not deny a

criminal defendant's request for such designation for any reason. Bronx Criminal Court judges

may not designate a case as a TRT Case over the objection of the criminal defendant. The Bronx

District Attorney may not request that any case be designated as a TRT Case.

20. Design and Implementation ofTRT. OCA must provide notice of an

implementation plan to Plaintiffs no later than ten days prior to the implementation of TRT.

OCA may, but is not required to, consult with the Stakeholders in designing and implementing

TRT. OCA's design and implementation of TRT must meet the following criteria:

a.

Criminal defendants in every courtroom in Bronx Criminal Court must be able to

request that eligible cases be designated as TRT Cases provided they meet the

criteria stated in Paragraph 18 of this Agreement;

b.

Designation as a TRT Case must be made in writing on a one-page form supplied

by OCA suitable for such designation ("TRT Form'');

c.

TRT Forms shall not require criminal defendants to provide any information

beyond the criminal defendant's name, case docket number, top charge, TRT

eligibility criteria, the defense attorney's name and contact information, and the

date and court part of TRT designation;

d.

TRT Forms must be available in every court part in Bronx Criminal Court and be

accepted by every Bronx Criminal Court judge;

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e.

TRT Forms must be submitted at the time of the criminal defendant's calendared

court appearance; and

f.

If a case is ineligible for TRT designation pursuant to Paragraph 18 but is

erroneously designated a TRT Case, or if a criminal defendant requests TRT

designation but is not eligible pursuant to Paragraph 18, OCA may reject and/or

remove the case's TRT designation on notice to the criminal defendant.

21. TRT Data Collection. OCA shall collect and maintain the following data (''TRT

Data") for each TRT Case:

a.

Date of arraignment;

b.

Top charge at arraignment;

c.

Date of TRT designation;

d.

Court part of TRT designation;

e.

Date of disposition;

f.

Court part of disposition;

g.

Type of disposition (dismissal, adjournment in contemplation of dismissal, guilty

plea, trial acquittal, conviction after trial, bench warrant, or withdrawal of TRT

designation, pursuant to Paragraph 23); and

h.

Where a trial was held, whether the trial was a bench trial or a jury trial.

22. TRT Data Sharing. OCA shall provide up-to-date, case-level TRT Data for all

TRT Cases, with de-identified information (as defined in paragraph 10) for sealed and pending

cases, to Plaintiffs at least one week prior to any scheduled quarterly meeting of the

Stakeholders, as provided in Paragraphs 14-16.

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23. Withdrawal of TRT Designation. At any time, a criminal defendant may request that his or her case no longer be designated a TRT Case. Such a withdrawal shall be deemed a disposition for TRT Data reporting purposes. The filing of any pretrial motion in a TRT Case by a criminal defendant shall be deemed a withdrawal of TRT designation. Once TRT designation is withdrawn, it may not be reinstated, except where such withdrawal is occasioned by the filing of a motion to dismiss on statutory or constitutional speedy trial grounds and the motion is denied.
24. No Legal Effect. The designation of a case as a TRT Case shall not confer upon criminal defendants any additional substantive or procedural legal rights. Conversely, designation as a TRT Case shall in no way prejudice criminal defendants who request and/or obtain such designation. Likewise, the failure to request TRT designation or the withdrawal of TRT designation shall in no way prejudice a criminal defendant. Nothing in this Agreement shall limit in any way a Bronx Criminal Court judge's discretion in presiding over and adjudicating criminal proceedings in any TRT or non-TRT case, including, but not limited to, scheduling, motion practice, dispositions, granting or denying adjournments, setting trial dates, placing the criminal defendant on "alert," and/or making accommodations for a criminal defendant's personal obligations and the availability of witnesses and counsel.
25. TRT Tracking Period. The provisions of this Agreement concerning TRT shall remain in effect throughout the Settlement Period.
MISCELLANEOUS PROVISIONS 26. OCA Representative. Within 30 days of the date this Agreement is so-ordered by the Court, Defendants shall designate a representative of OCA to serve as the primary point of contact for Plaintiffs for issues pertaining to implementation of the terms of this Agreement.
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27. Good Faith. The parties shall attempt in good faith to resolve disputes over the terms and/or implementation of this Agreement without judicial intervention.
28. Enforcement of the Agreement. Only terms of this Agreement related to the Settlement Period and Plaintiffs' right to reinstatement of the Litigation, sharing of data, the Party and Stakeholder Meetings, and Trial Request Tracking, will be enforceable by this Court. The remedy for any alleged breach of the Agreement will be limited to an order directing Defendants to comply with the terms of the Agreement. In connection with the enforcement of this Agreement, Plaintiffs shall not seek, nor shall Defendants submit to, any proceedings that would subject the New York State Unified Court System ("UCS") to any form of federal oversight, including, but not limited to, contempt proceedings. No other remedies, such as an injunction intervening in an ongoing state court proceeding or a finding of contempt, shall be available to enforce the Agreement. Nothing in this Agreement shall be construed as Defendants' consent to the federal court's taking any action to enjoin, monitor, or otherwise affect any pending New York State court proceeding or the operation of the New York State court system. The federal court shall have the authority to enforce this Agreement only by issuing an order directing Defendants to comply with its terms. The federal court shall not have the authority to enforce this Agreement by issuing an order affecting any ongoing state court proceeding or the operation of the state court system, or by holding Defendants or any other official of the Unified Court System or OCA in contempt. The federal court will not exercise authority with respect to this Agreement except as provided herein. Nothing in this Agreement shall be construed as a waiver of any available defense, and Defendants expressly preserve any and all available defenses, including, but not limited to, abstention under Younger and O'Shea.
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Nothing in this Paragraph shall affect the parties' rights pursuant to Paragraphs 2-4 of this Agreement.
29. No Determination of the Merits. Defendants maintain that any actions taken pursuant to this Agreement are made solely to avoid the burdens and expense of protracted litigation. This Agreement, and any and all actions taken pursuant thereto, are not to be construed as constituting any determination on the merits of any claims which have been or could have been asserted in this action or as constituting any admission of wrongdoing or liability on the part of Defendants, UCS (including, but not limited to, any of its officials, employees, or agents, whether in their individual or official capacities), and/or the State of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof). Defendants, UCS, and the State of New York expressly deny any wrongdoing or liability. Nothing contained in this Agreement shall be deemed to constitute a policy, practice, or custom of Defendants, UCS (including, but not limited to, any of its officials, employees, or agents, whether in their individual or official capacities), and/or the State of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof).
30. No Precedential Value. This Agreement shall not in any manner be construed as determinative of the issues or claims raised, or which could have been raised, in this action or any other proceeding, and shall have no precedential value. In addition, notwithstanding the provisions of any paragraph herein, this Agreement shall not bind or collaterally estop Plaintiffs or Defendants, UCS (including, but not limited to, any of its officials, employees, or agents, whether in their individual or official capacities), and/or the State of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof) in any pending or future actions or proceedings in which the same or similar issues are raised, from pursuing or
15

Case 1:16-cv-03455-GBD-GWG Document 109 Filed 08/09/18 Page 16 of 19 Case 1:16-cv-03455-GBD-GWG Document 108 Filed 08/09/18 Page 16 of 19
defending against all claims raised in said actions or proceedings, or from advancing or raising any and all available defenses.
31. No Prevailing Party. Under the terms of this Agreement, neither Plaintiffs nor Defendants shall be deemed a "prevailing party" for any purpose, including, but not limited to, any statutory or contractual claim based upon "prevailing party" status. If Plaintiffs reinstate the Litigation pursuant to Paragraph 2 of this Agreement, nothing in this Agreement shall be construed to prevent either Plaintiffs or Defendants from seeking "prevailing party" status at the end of the reinstated Litigation, or from asserting all available defenses to such an application.
32. Modification of the Agreement. The terms of this Agreement may be modified only by a written agreement signed by the attorneys for all parties, or upon Order of the Court.
33. Whole Agreement. This Agreement contains all the terms and conditions agreed upon by the parties, and there are no other terms relied upon by the parties, verbal or otherwise.
34. Severability. If for any reason any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall be construed, performed, or enforced as if the invalidated or unenforceable provision had not been included in the text of the Agreement.
35. Attorneys' Fees or Costs. In the event Plaintiffs' claims are dismissed with prejudice at the end of the Settlement Period without the reinstatement of the Litigation, Plaintiffs shall not seek to recover attorneys' fees or costs and will waive any rights to the same. In the event the Litigation is reinstated for any reason pursuant to Paragraph 2, Plaintiffs preserve all rights under applicable law to seek recovery of attorneys' fees and costs incurred before, during, or after the Settlement Period, and Defendants preserve all rights to assert any and all available defenses in opposition to such an application.
16

Case 1:16-cv-03455-GBD-GWG Document 109 Filed 08/09/18 Page 17 of 19 Case 1:16-cv-03455-GBD-GWG Document 108 Filed 08/09/18 Page 17 of 19
36. Notices. All notices under this Agreement shall be delivered by overnight mail or overnight courier, with an additional copy by email, and shall be addressed as follows:
FOR THE PLAINTIFFS: Scott D. Levy The Bronx Defenders 360 East 161 st Street Bronx, NY 10451 Email: scottl@bronxdefenders.org FOR THE DEFENDANTS: (a) Alissa S. Wright
New York State Office of the Attorney General 28 Liberty Street New York, NY 10005 Email: alissa.wright@ag.ny.gov and (b) The individual designated as the OCA representative pursuant to Paragraph 26. The parties may substitute the individual designated to receive notice by advising all other parties in writing sent by overnight mail or overnight courier, and by email. 37. Execution. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one Agreement, and facsimile and electronic signatures shall have the same force and effect as original signatures.
17

Case 1:16-cv-03455-GBD-GWG Document 109 Filed 08/09/18 Page 18 of 19 Case 1:16-cv-03455-GBD-GWG Document 108 Filed 08/09/18 Page 18 of 19

Dated:

August 9, 2018 Bronx, New York

Johanna B. Steinberg 360 East 161st Street Bronx, NY 10451 (718) 838-7878
EMERY CELLI BRINCKERHOFF & ABADYLLP
Matthew B. Brinckerhoff Ilann M. Maazel Douglas E. Lieb 600 Fifth Avenue, 10th Floor New York, NY l 0020 (212) 763-5000
MORRISON & FOERSTER LLP
Gary S. Lee Ruti Smithline Jennifer K. Brown Katie L. Viggiani James A. Newton 250 West 55th Street New York, NY 10019 (212) 468-8000
Attorneys for Plaintiffs

Dated:

August 9, 2018 New York, New York

BARBARA D. UNDERWOOD Attorney General State of New York
By: ( } ~ 4 . ~
Alissa S. Wright Assistant Attorney General 28 Liberty Street New York, NY 10005 (212) 416-6035

Attorney for Defendants

OFFICE OF COURT ADMINI

By:

Counsel 25 Beaver Street, 11 th Floor New York, New York 10004 (212) 428-2150

Case 1:16-cv-03455-GBD-GWG Document 109 Filed 08/09/18 Page 19 of 19 Case 1:16-cv-03455-GBD-GWG Document 108 Filed 08/09/18 Page 19 of 19

SO ORDERED.

Dated:

AUG

,201s

New York,'t~v2918k

United States District Judge

 
 STAYED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:16−cv−03455−GBD−GWG

Trowbridge et al v. Cuomo et al Assigned to: Judge George B. Daniels Referred to: Magistrate Judge Gabriel W. Gorenstein Cause: 42:1983dp Civil Right Denial of Due Process
Plaintiff

Date Filed: 05/10/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Christopher Trowbridge individually and on behalf of a class of all others similarly situated

represented by Gary Solomon Lee Morrison & Foerster 1290 Avenue of The Americas New York, NY 10104 212−468−8000 Fax: 212−468−7900 Email: gary.lee@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Andrew Newton Morrison & Foerster LLP 1290 Avenue of The Americas New York, NY 10104 (212)−336−4116 Fax: (212)−468−7900 Email: jnewton@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Kay Brown Morrison & Foerster LLP (NYC) 250 West 55th Street New York, NY 10019 212−468−8000 Fax: 212−468−7900 Email: jbrown@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katie Louise Viggiani Morrison & Foerster LLP (NYC) 250 West 55th Street New York, NY 10019 212−468−8000 Fax: 212−468−7900 Email: kviggiani@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruti Smithline Morrison & Foerster LLP (NYC) 250 West 55th Street New York, NY 10019 212−468−8000 Fax: 212−468−7900 Email: rsmithline@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Edward Lieb Emery Celli Brinckerhoff & Abady, LLP

Plaintiff
Michael Torres individually and on behalf of a class of all others similarly situated

600 Fifth Avenue 10th Floor New York, NY 10020 (212)−763−5000 Email: dlieb@ecbalaw.com ATTORNEY TO BE NOTICED
Ilann M. Maazel Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: imaazel@ecbalaw.com ATTORNEY TO BE NOTICED
Johanna Beth Steinberg The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−508−3447 Fax: 718−838−7819 Email: johannas@bronxdefenders.org ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: mbrinckerhoff@ecbalaw.com ATTORNEY TO BE NOTICED
Scott Duffield Levy The Bronx Defenders 860 Courtlandt Ave. Bronx, NY 11238 (718)−838−7833 Fax: (718)−508−3547 Email: scottl@bronxdefenders.org ATTORNEY TO BE NOTICED
represented by Gary Solomon Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Andrew Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Kay Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katie Louise Viggiani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruti Smithline

Plaintiff
Ronnie Pagan individually and on behalf of a class of all others similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Edward Lieb (See above for address) ATTORNEY TO BE NOTICED
Ilann M. Maazel (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Scott Duffield Levy (See above for address) ATTORNEY TO BE NOTICED
represented by Gary Solomon Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Andrew Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Kay Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katie Louise Viggiani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruti Smithline (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Edward Lieb (See above for address) ATTORNEY TO BE NOTICED
Ilann M. Maazel (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address)

Plaintiff Juan Ortiz individually and on behalf of a class of all others similarly situated
Plaintiff Joseph Joshua

ATTORNEY TO BE NOTICED
Scott Duffield Levy (See above for address) ATTORNEY TO BE NOTICED
represented by Gary Solomon Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Andrew Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Kay Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katie Louise Viggiani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruti Smithline (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Edward Lieb (See above for address) ATTORNEY TO BE NOTICED
Ilann M. Maazel (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Scott Duffield Levy (See above for address) ATTORNEY TO BE NOTICED
represented by Katie Louise Viggiani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Scott Duffield Levy (See above for address)

Plaintiff Luis Virella
Plaintiff Jason Garcia
V. Defendant Andrew Cuomo in his official capacity as the Governor of the State of New York TERMINATED: 12/22/2016
Defendant Janet DiFiore in her official capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System

ATTORNEY TO BE NOTICED
represented by Katie Louise Viggiani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Scott Duffield Levy (See above for address) ATTORNEY TO BE NOTICED
represented by Katie Louise Viggiani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Scott Duffield Levy (See above for address) ATTORNEY TO BE NOTICED
represented by Alissa Schecter Wright New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212)−416−6035 Fax: (212)−416−6009 Email: alissa.wright@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Lambert Office of the Attorney General State of New York 120 Broadway, 24th floor New York, NY 10271−0332 212−416−8610 Fax: 212−416−6075 Email: michelle.lambert@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Alissa Schecter Wright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Lambert (See above for address)

Defendant
Lawrence Marks in his capacity as Chief Administrative Judge of the Unified Court System

ATTORNEY TO BE NOTICED
represented by Alissa Schecter Wright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Lambert (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016 05/10/2016

# Docket Text
1 COMPLAINT against Andrew Cuomo, Janet DiFiore, Lawrence Marks. (Filing Fee $ 400.00, Receipt Number 0208−12280684)Document filed by Christopher Trowbridge, Juan Ortiz, Ronnie Pagan, Michael Torres.(Levy, Scott) (Entered: 05/10/2016)
2 CIVIL COVER SHEET filed. (Levy, Scott) (Entered: 05/10/2016)
3 REQUEST FOR ISSUANCE OF SUMMONS as to Andrew Cuomo, re: 1 Complaint. Document filed by Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Levy, Scott) (Entered: 05/10/2016)
4 REQUEST FOR ISSUANCE OF SUMMONS as to Janet DiFiore, re: 1 Complaint. Document filed by Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Levy, Scott) (Entered: 05/10/2016)
5 REQUEST FOR ISSUANCE OF SUMMONS as to Lawrence Marks, re: 1 Complaint. Document filed by Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Levy, Scott) (Entered: 05/10/2016)
6 NOTICE OF APPEARANCE by Matthew D. Brinckerhoff on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Brinckerhoff, Matthew) (Entered: 05/10/2016)
7 NOTICE OF APPEARANCE by Ilann M. Maazel on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Maazel, Ilann) (Entered: 05/10/2016)
8 NOTICE OF APPEARANCE by Douglas Edward Lieb on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Lieb, Douglas) (Entered: 05/10/2016)
9 NOTICE OF APPEARANCE by Gary Solomon Lee on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Lee, Gary) (Entered: 05/10/2016)
10 NOTICE OF APPEARANCE by Ruti Smithline on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Smithline, Ruti) (Entered: 05/10/2016)
11 NOTICE OF APPEARANCE by Jennifer Kay Brown on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Brown, Jennifer) (Entered: 05/10/2016)
12 NOTICE OF APPEARANCE by Katie Louise Viggiani on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Viggiani, Katie) (Entered: 05/10/2016)
13 NOTICE OF APPEARANCE by James Andrew Newton on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Newton, James) (Entered: 05/10/2016)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Scott Duffield Levy. The party information for the following party/parties has been modified: Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. The information for the party/parties has been

05/10/2016 05/10/2016 05/10/2016 05/10/2016
05/10/2016 05/10/2016 05/10/2016 05/12/2016
05/16/2016
05/16/2016
05/16/2016
05/26/2016 05/26/2016
05/26/2016
05/27/2016 06/01/2016

modified for the following reason/reasons: party text was omitted. (rch) (Entered: 05/10/2016)
14 ELECTRONIC SUMMONS ISSUED as to Andrew Cuomo. (rch) (Entered: 05/10/2016)
15 ELECTRONIC SUMMONS ISSUED as to Janet DiFiore. (rch) (Entered: 05/10/2016)
16 ELECTRONIC SUMMONS ISSUED as to Lawrence Marks. (rch) (Entered: 05/10/2016)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge George B. Daniels. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (rch) (Entered: 05/10/2016)
Magistrate Judge Gabriel W. Gorenstein is so designated. (rch) (Entered: 05/10/2016)
Case Designated ECF. (rch) (Entered: 05/10/2016)
17 NOTICE OF APPEARANCE by Johanna Beth Steinberg on behalf of Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Steinberg, Johanna) (Entered: 05/10/2016)
18 INITIAL PRETRIAL CONFERENCE: Initial Conference set for 6/15/2016 at 09:30 AM in Courtroom 11A, 500 Pearl Street, New York, NY 10007 before Judge George B. Daniels. (Signed by Judge George B. Daniels on 5/11/2016) (spo) (Entered: 05/12/2016)
19 SUMMONS RETURNED EXECUTED Summons and Complaint served. Andrew Cuomo served on 5/11/2016, answer due 6/1/2016. Service was accepted by Denise Gagnon, Person Authorized to Accept Service. Document filed by Christopher Trowbridge; Juan Ortiz; Ronnie Pagan; Michael Torres. (Smithline, Ruti) (Entered: 05/16/2016)
20 SUMMONS RETURNED EXECUTED Summons and Complaint served. Janet DiFiore served on 5/11/2016, answer due 6/1/2016. Service was accepted by Lisa Evans, Person Authorized to Accept Service. Document filed by Christopher Trowbridge; Juan Ortiz; Ronnie Pagan; Michael Torres. (Smithline, Ruti) (Entered: 05/16/2016)
21 SUMMONS RETURNED EXECUTED Summons and Complaint served. Lawrence Marks served on 5/11/2016, answer due 6/1/2016. Service was accepted by Lisa Evans, Person Authorized to Accept Service. Document filed by Christopher Trowbridge; Juan Ortiz; Ronnie Pagan; Michael Torres. (Smithline, Ruti) (Entered: 05/16/2016)
22 NOTICE OF APPEARANCE by Alissa Schecter Wright on behalf of Andrew Cuomo, Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 05/26/2016)
23 FIRST LETTER addressed to Judge George B. Daniels from Alissa S. Wright dated May 26, 2016 re: Extension of Time to Respond to the Complaint and Adjournment of Initial Pretrial Conference. Document filed by Andrew Cuomo, Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 05/26/2016)
24 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated 05/26/2016 re: Response to Defendants Request to Adjourn Initial Pretrial Conference. Document filed by Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge.(Levy, Scott) (Entered: 05/26/2016)
25 NOTICE OF APPEARANCE by Michelle Renee Lambert on behalf of Andrew Cuomo, Janet DiFiore, Lawrence Marks. (Lambert, Michelle) (Entered: 05/27/2016)
26 ORDER: Defendants' request for an extension of time to answer, move, or otherwise respond to the Complaint from June 1, 2016 to June 30, 2016 is GRANTED. Defendants' request to adjourn the June 15, 2016 9:30 a.m. initial conference is

06/08/2016 06/14/2016 06/15/2016
06/30/2016 06/30/2016 07/13/2016
07/13/2016
07/29/2016 08/19/2016 09/07/2016
09/13/2016 09/13/2016

DENIED. SO ORDERED., Andrew Cuomo answer due 6/30/2016; Janet DiFiore answer due 6/30/2016; Lawrence Marks answer due 6/30/2016. (Signed by Judge George B. Daniels on 5/31/2016) (ama) (Entered: 06/01/2016)
27 JOINT LETTER addressed to Judge George B. Daniels from Alissa Wright & Scott Levy dated June 8, 2016 re: Proposed Case Management Plan. Document filed by Andrew Cuomo, Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 06/08/2016)
28 LETTER addressed to Judge George B. Daniels from Katie L. Viggiani dated June 14, 2016 re: Copies of Transmittal Letters Pursuant to the Court's 5/11/16 Order. Document filed by Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Viggiani, Katie) (Entered: 06/14/2016)
Minute Entry for proceedings held before Judge George B. Daniels: Initial Pretrial Conference held on 6/15/2016. Plaintiff Counsel: Matthew D. Brinckerhoff; Ilann M. Maazel; James Andrew Newton; Katie Louise Viggiani; Johanna Beth Steinberg; Scott Duffield LevyDefense Counsel: Michelle Renee Lambert; Alissa Schecter Wright and Court Reporter present. The Oral argument is scheduled for September 7, 2016 at 10:30 a.m. (Vega, Elizabeth) (Entered: 06/15/2016)
29 MOTION to Dismiss . Document filed by Andrew Cuomo, Janet DiFiore, Lawrence Marks. Responses due by 7/29/2016(Wright, Alissa) (Entered: 06/30/2016)
30 MEMORANDUM OF LAW in Support re: 29 MOTION to Dismiss . . Document filed by Andrew Cuomo, Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 06/30/2016)
31 TRANSCRIPT of Proceedings re: conference held on 6/15/2016 before Judge George B. Daniels. Court Reporter/Transcriber: Jerry Harrison, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/8/2016. Redacted Transcript Deadline set for 8/18/2016. Release of Transcript Restriction set for 10/14/2016.(McGuirk, Kelly) (Entered: 07/13/2016)
32 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 6/15/16 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/13/2016)
33 MEMORANDUM OF LAW in Opposition re: 29 MOTION to Dismiss . . Document filed by Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge. (Levy, Scott) (Entered: 07/29/2016)
34 REPLY MEMORANDUM OF LAW in Support re: 29 MOTION to Dismiss . . Document filed by Andrew Cuomo, Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 08/19/2016)
Minute Entry for proceedings held before Judge George B. Daniels: Oral Argument held on 9/7/2016 re: 29 MOTION to Dismiss . filed by Lawrence Marks, Janet DiFiore, Andrew Cuomo. Plaintiff Counsel: Matthew D. Brinckerhoff; Douglas Edward Lieb; Ilann M. Maazel; James Andrew Newton; Ruti Smithline; Katie Louise Viggiani; Johanna Beth Steinberg; Scott Duffield LevyDefense Counsel: Michelle Renee Lambert; Alissa Schecter Wright; Charles Sanders and Court Reporter present. The subsequent conference is scheduled for January 11, 2017 at 10:30 a.m. (Vega, Elizabeth) (Entered: 09/08/2016)
35 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated 09/13/16 re: Discovery Schedule. Document filed by Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge.(Levy, Scott) (Entered: 09/13/2016)
36 LETTER addressed to Judge George B. Daniels from Alissa S. Wright dated September 13, 2016 re: Response to Plaintiffs' Letter Concerning Discovery.

10/05/2016 10/05/2016 12/22/2016
12/22/2016 01/23/2017 01/25/2017 01/26/2017 01/26/2017 01/26/2017 03/08/2017

Document filed by Andrew Cuomo, Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 09/13/2016)
37 TRANSCRIPT of Proceedings re: motion held on 9/7/2016 before Judge George B. Daniels. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/31/2016. Redacted Transcript Deadline set for 11/10/2016. Release of Transcript Restriction set for 1/6/2017.(Siwik, Christine) (Entered: 10/05/2016)
38 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a motion proceeding held on 9/7/16 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Siwik, Christine) (Entered: 10/05/2016)
39 MEMORANDUM DECISION AND ORDER. Defendants' Motion to Dismiss each named Plaintiff's claims for lack of standing is GRANTED. Defendants' Motion to Dismiss on abstention grounds is DENIED. Defendants' Motion to Dismiss for failure to state a claim against Chief Judge Difiore and Chief Administrative Judge Marks pursuant to Rule 12(b)(6) is DENIED. Governor Cuomo is DISMISSED as a defendant from this action. Accordingly, Plaintiffs may move to file an amended Complaint within sixty days of this Order provided amendment would not be futile. The Clerk of Court is directed to close the motion at ECF No. 29. Andrew Cuomo (in his official capacity as the Governor of the State of New York) terminated. Motions terminated: 29 MOTION to Dismiss filed by Lawrence Marks, Janet DiFiore, Andrew Cuomo. (Signed by Judge George B. Daniels on 12/21/2016) (rjm). (Entered: 12/22/2016)
40 INTERNET CITATION NOTE: Material from decision with Internet citation re: 39 Order of Dismissal, Add and Terminate Parties, Terminate Motions. (Attachments: # 1 Internet Citation, # 2 Internet Citation, # 3 Internet Citation, # 4 Internet Citation, # 5 Internet Citation, # 6 Internet Citation, # 7 Internet Citation) (vf) (Entered: 01/11/2017)
41 AMENDED COMPLAINT amending 1 Complaint against Janet DiFiore, Lawrence Marks.Document filed by Ronnie Pagan, Michael Torres, Juan Ortiz, Christopher Trowbridge, Joseph Joshua, Luis Virella, Jason Garcia. Related document: 1 Complaint filed by Michael Torres, Christopher Trowbridge, Juan Ortiz, Ronnie Pagan.(Levy, Scott) Modified on 1/24/2017 (laq). Modified on 1/25/2017 (laq). (Entered: 01/23/2017)
42 LETTER MOTION for Leave to File Amended Complaint (Pursuant to the Court's 12/22/16 Order) addressed to Judge George B. Daniels from Katie L. Viggiani dated January 25, 2017. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Attachments: # 1 Exhibit A: Amended Complaint)(Viggiani, Katie) (Entered: 01/25/2017)
43 LETTER RESPONSE in Opposition to Motion addressed to Judge George B. Daniels from Alissa S. Wright dated January 26, 2017 re: 42 LETTER MOTION for Leave to File Amended Complaint (Pursuant to the Court's 12/22/16 Order) addressed to Judge George B. Daniels from Katie L. Viggiani dated January 25, 2017. . Document filed by Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 01/26/2017)
44 ORDER: ( Status Conference set for 3/8/2017 at 09:45 AM before Judge George B. Daniels.) The parties shall next appear before this Court for a conference on March 8, 2017 at 9:45 a.m. (Signed by Judge George B. Daniels on 1/25/2016) (jwh) (Entered: 01/26/2017)
***DELETED DOCUMENT. Deleted document number 45 ORDER. The document was incorrectly filed in this case. (ama) (Entered: 01/31/2017)
Minute Entry for proceedings held before Judge George B. Daniels: Interim Pretrial Conference held on 3/8/2017. Plaintiff Counsel: Matthew D. Brinckerhoff, Ilann M.

03/08/2017 03/08/2017 03/08/2017 03/17/2017 03/17/2017
03/17/2017
03/20/2017 03/20/2017
03/22/2017 03/22/2017 03/22/2017 03/22/2017

Maazel, Katie Louise Viggiani, Scott Duffield Levy Defense Counsel: Alissa Schecter Wright and Court Reporter present. The subsequent conference is scheduled for May 10, 2017 at 9:45 a.m. (Vega, Elizabeth) (Entered: 03/08/2017)
45 MOTION to Certify Class . Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Brinckerhoff, Matthew) (Entered: 03/08/2017)
46 DECLARATION of Matthew D. Brinckerhoff in Support re: 45 MOTION to Certify Class .. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Errata H, # 9 Exhibit I)(Brinckerhoff, Matthew) (Entered: 03/08/2017)
47 MEMORANDUM OF LAW in Support re: 45 MOTION to Certify Class . . Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Brinckerhoff, Matthew) (Entered: 03/08/2017)
48 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated March 17, 2017 re: Jointly Proposed Case Management Plan and Scheduling Order. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Attachments: # 1 Exhibit Proposed Case Management Plan and Scheduling Order)(Levy, Scott) (Entered: 03/17/2017)
49 TRANSCRIPT of Proceedings re: conference held on 3/8/2017 before Judge George B. Daniels. Court Reporter/Transcriber: Lisa Picciano Fellis, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/7/2017. Redacted Transcript Deadline set for 4/17/2017. Release of Transcript Restriction set for 6/15/2017.(McGuirk, Kelly) (Entered: 03/17/2017)
50 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conferernce proceeding held on 3/8/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/17/2017)
51 MEMO ENDORSEMENT on re: 48 Letter, filed by Jason Garcia, Luis Virella, Michael Torres, Christopher Trowbridge, Juan Ortiz, Ronnie Pagan, Joseph Joshua. ENDORSEMENT: SO ORDERED. ( Responses due by 5/5/2017, Replies due by 5/19/2017.) (Signed by Judge George B. Daniels on 3/20/2017) (mro) (Entered: 03/20/2017)
52 CASE MANAGEMENT PLAN AND SCHEDULING ORDER: Status Conference set for 5/10/2017 at 09:45 AM before Judge George B. Daniels. Janet DiFiore answer due 4/7/2017; Lawrence Marks answer due 4/7/2017. Amended Pleadings due by 6/7/2017. Joinder of Parties due by 6/7/2017. Dispositive Motions due by 11/15/2017. Fact Discovery due by 8/16/2017. Expert Discovery due by 10/11/2017. (Signed by Judge George B. Daniels on 3/20/2017) (jwh) (Entered: 03/20/2017)
53 MOTION for Reconsideration of Court's Acceptance of Plaintiffs' Amended Complaint. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 03/22/2017)
54 MEMORANDUM OF LAW in Support re: 53 MOTION for Reconsideration of Court's Acceptance of Plaintiffs' Amended Complaint. . Document filed by Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 03/22/2017)
55 LETTER MOTION to Stay Defendants' Time to Answer addressed to Judge George B. Daniels from Alissa S. Wright dated March 22, 2017. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 03/22/2017)
56 LETTER MOTION for Local Rule 37.2 Conference Seeking a Stay of Discovery addressed to Judge George B. Daniels from Alissa S. Wright dated March 22, 2017. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered:

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03/22/2017)
57 LETTER addressed to Judge George B. Daniels from Douglas E. Lieb dated March 23, 2017 re: Defendants' Stay Requests. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Lieb, Douglas) (Entered: 03/23/2017)
58 ORDER: denying 55 Letter Motion to Stay ; denying 56 Letter Motion for Local Rule 37.2 Conference. Defendants' March 22, 2017 letter request that Defendants' time to answer the amended complaint be stayed pending the outcome of Defendants' motion for reconsideration is DENIED. Defendants' separate letter request for a pre−motion conference and a stay of discovery is DENIED. (Signed by Judge George B. Daniels on 3/24/2017) (ap) (Entered: 03/27/2017)
59 FIRST LETTER MOTION for Extension of Time to File Response/Reply as to 53 MOTION for Reconsideration of Court's Acceptance of Plaintiffs' Amended Complaint. with consent addressed to Judge George B. Daniels from Alissa S. Wright dated March 30, 2017. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 03/30/2017)
60 ORDER: granting 59 Letter Motion for Extension of Time to File. SO ORDERED. Response/Reply re 59 FIRST LETTER MOTION for Extension of Time to File Response/Reply as to 53 MOTION for Reconsideration of Court's Acceptance of Plaintiffs' Amended Complaint with consent addressed to Judge George B. Daniels from Alissa S. Wright. Responses due by 4/14/2017 Replies due by 4/25/2017. (Signed by Judge George B. Daniels on 3/30/2017) (ap) (Entered: 03/30/2017)
61 ANSWER to 41 Amended Complaint,. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 04/07/2017)
62 MEMORANDUM OF LAW in Opposition re: 53 MOTION for Reconsideration of Court's Acceptance of Plaintiffs' Amended Complaint. . Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Levy, Scott) (Entered: 04/14/2017)
63 REPLY MEMORANDUM OF LAW in Support re: 53 MOTION for Reconsideration of Court's Acceptance of Plaintiffs' Amended Complaint. . Document filed by Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 04/25/2017)
64 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated May 5, 2017 re: Rescheduling May 10 Conference. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Levy, Scott) (Entered: 05/05/2017)
65 MEMORANDUM OF LAW in Opposition re: 45 MOTION to Certify Class . . Document filed by Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 05/05/2017)
66 AFFIDAVIT of Chester Mount in Opposition re: 45 MOTION to Certify Class .. Document filed by Janet DiFiore, Lawrence Marks. (Attachments: # 1 Exhibit A − Chart of Arraignment to Disposition, # 2 Exhibit B − Top Arraignment Charge Chart, # 3 Exhibit C − Misdemeanor Disposition 2016)(Wright, Alissa) (Entered: 05/05/2017)
67 AFFIRMATION of Alissa S. Wright in Opposition re: 45 MOTION to Certify Class .. Document filed by Janet DiFiore, Lawrence Marks. (Attachments: # 1 Exhibit 1− 2015 Annual Report, # 2 Exhibit 2 − Judicial Term Assignments, # 3 Exhibit 3 − Misdemeanor Activity Report, # 4 Exhibit 4 − WebCrims data on Plaintiff Virella, # 5 Exhibit 5 − WebCrims data of Plaintiff Garcia, # 6 Exhibit 6 − Weekly Changes in Misdemeanors, # 7 Exhibit 7 − NYCC Executive Summary)(Wright, Alissa) (Entered: 05/05/2017)
68 MEMO ENDORSEMENT on re: 64 Letter, filed by Jason Garcia, Luis Virella, Michael Torres, Christopher Trowbridge, Juan Ortiz, Ronnie Pagan, Joseph Joshua. ENDORSEMENT: SO ORDERED. ( Status Conference set for 6/28/2017 at 10:00 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 5/10/2017) (mro) (Entered: 05/10/2017)

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69 JOINT LETTER addressed to Judge George B. Daniels from Douglas E. Lieb dated May 12, 2017 re: Stipulated Protective Order. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Attachments: # 1 Exhibit A − Stipulated Protective Order)(Lieb, Douglas) (Entered: 05/12/2017)
70 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge George B. Daniels on 5/17/17) (yv) (Entered: 05/17/2017)
71 STIPULATION AND ORDER TO STAY LITIGATION, IT IS HEREBY STIPULATED AND AGREED between the parties that: To enable the parties to engage in meaningful settlement negotiations, this litigation, including all pending deadlines and motions, is hereby STAYED for a period of six months from the date of the parties' signatures below; The parties will confer and negotiate in good faith with the goal of reaching an enforceable settlement agreement; Material exchanged in the course of negotiations may be designated Confidential under the Stipulated Protective Order entered by the Court on May 17, 2017; The parties recognize that it may be helpful in the course of negotiations to share material designated Confidential with other persons and entities involved in the day−to−day functioning of the Bronx Criminal Court, such as the Office of the Bronx District Attorney and other criminal defense providers (collectively, "Stakeholders"). If a party shares material that it has designated Confidential with Stakeholders for the purpose of facilitating settlement negotiations, such materials may only be shared pursuant to the terms of the Protective Order, and the party shall not be deemed to have waived the confidentiality designation or otherwise waived its rights under the Stipulated Protective Order. The parties will submit a status letter updating the Court on their status one month before the scheduled expiration of the stay. If any party believes in good faith that settlement negotiations have irretrievably broken down, that party may apply to the Court for such relief as it deems appropriate. Any party intending to seek relief from the Court will notify the opposing party at least seven days in advance to allow the parties to meet and confer prior to making any application to the Court. So Ordered. (Case stayed.) (Signed by Judge George B. Daniels on 5/18/17) (yv) (Entered: 05/18/2017)
72 JOINT LETTER addressed to Judge George B. Daniels dated October 18, 2017 re: Status. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 10/18/2017)
73 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated November 9, 2017 re: Request to Extend Stay of Litigation by Two Weeks. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Levy, Scott) (Entered: 11/09/2017)
74 MEMO ENDORSEMENT: on re: 73 Letter, filed by Jason Garcia, Luis Virella, Michael Torres, Christopher Trowbridge, Juan Ortiz, Ronnie Pagan, Joseph Joshua. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 11/13/2017) (ap) (Entered: 11/13/2017)
75 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated December 2, 2017 re: Second Joint Request for Extension of Stay. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Levy, Scott) (Entered: 12/02/2017)
76 MEMO ENDORSEMENT on re: 75 Letter, filed by Jason Garcia, Luis Virella, Michael Torres, Christopher Trowbridge, Juan Ortiz, Ronnie Pagan, Joseph Joshua. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 12/5/2017) (jwh) (Entered: 12/05/2017)
77 JOINT LETTER addressed to Judge George B. Daniels from Alissa Wright dated January 17, 2018 re: Request for Extension of the Stay. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 01/17/2018)
78 MEMO ENDORSEMENT on re: 77 Letter filed by Lawrence Marks, Janet DiFiore. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 1/18/2018) (jwh) (Entered: 01/18/2018)

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79 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated 2/8/18 re: Joint Request for Briefing Schedule on Plaintiffs' Motion for Class Certification. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Levy, Scott) (Entered: 02/08/2018)
80 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated 2/8/18 re: Plaintiffs' Request to Order Settlement Conference. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Levy, Scott) (Entered: 02/08/2018)
81 LETTER addressed to Judge George B. Daniels from Alissa Wright dated February 8, 2018 re: Defendants' Response to Plaintiffs' Request for a Settlement Conference. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 02/08/2018)
82 MEMO ENDORSEMENT on re: 79 Letter. ENDORSEMENT: SO ORDERED. (Set Deadlines/Hearing as to 79 Letter, 45 MOTION to Certify Class: Responses due by 2/26/2018, Replies due by 3/12/2018.) (Signed by Judge George B. Daniels on 2/8/2018) (jwh) (Entered: 02/08/2018)
83 ORDER: This case is referred to Magistrate Judge Gabriel W. Gorenstein for settlement. (Signed by Judge George B. Daniels on 2/12/2018) (jwh) (Entered: 02/12/2018)
84 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Gabriel W. Gorenstein. (Signed by Judge George B. Daniels on 2/12/2018) (jwh) (Entered: 02/12/2018)
85 ORDER: A telephone conference to discuss the parties' preferred process and timing for a settlement conference is scheduled for Wednesday, February 14, 2018, at 4:00 p.m. The parties should discuss this topic among themselves prior to the telephone conference. At the above date and time, Mr. Scott D. Levy or another attorney is directed to place a call to the Court at (212) 805−4260 with all parties on the line. All counsel who intend to speak during the call must use a landline. Also, when addressing the Court, counsel must not use a speakerphone. Upon receipt of this order each party is directed to ensure that all other parties on the case are aware of the conference date and time. The parties should follow paragraph 1.F of this Court's Individual Practices (available at: www.nysd.uscourts.gov/judge/Gorenstein) for any request for an adjournment. SO ORDERED., ( Telephone Conference set for 2/14/2018 at 04:00 PM before Magistrate Judge Gabriel W. Gorenstein.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/12/2018) (ama) (Entered: 02/12/2018)
Minute Entry for proceedings held before Magistrate Judge Gabriel W. Gorenstein: Telephone Conference held on 2/14/2018. (rch) (Entered: 02/14/2018)
86 ORDER SCHEDULING SETTLEMENT CONFERENCE: A settlement conference in this matter is scheduled for Wednesday, March 7, 2018 at 10:00 a.m. in Courtroom 6−B, 500 Pearl Street, New York, New York. All persons attending the conference must arrive at least fifteen minutes beforehand to allow for the time required to pass through the security process. Counsel must read the Court's "Standing Order Applicable to Settlement Conferences Before Judge Gorenstein," which is attached and is incorporated herein by reference. Upon receipt of this Order. Each counsel is directed to confirm with all other counsel that they have received a copy of this Order, and as further set forth in this order. (Settlement Conference set for 3/7/2018 at 10:00 AM in Courtroom 6B, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Gabriel W. Gorenstein.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/14/2018) (ap) Modified on 2/15/2018 (ap). (Entered: 02/14/2018)
87 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 45 MOTION to Certify Class . . Document filed by Janet DiFiore, Lawrence Marks. (Wright, Alissa) (Entered: 02/26/2018)
88 AFFIRMATION of Alissa S. Wright in Opposition re: 45 MOTION to Certify Class .. Document filed by Janet DiFiore, Lawrence Marks. (Attachments: # 1 Exhibit 1 − 2016 Annual Report, # 2 Exhibit 2 − Judicial Term Assignments, # 3 Exhibit 3 − Misdemeanor Activity Report, # 4 Exhibit 4 − WebCrims data on Plaintiff Virella, # 5 Exhibit 5 − WebCrims data on Plaintiff Garcia, # 6 Exhibit 6 − Weekly Changes in

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Misdemeanors, # 7 Exhibit 7 − NYCC Executive Summary)(Wright, Alissa) (Entered: 02/26/2018)
89 AFFIDAVIT of Chester Mount in Opposition re: 45 MOTION to Certify Class .. Document filed by Janet DiFiore, Lawrence Marks. (Attachments: # 1 Exhibit A − Chart of Arraignment to Disposition, # 2 Exhibit B − Top Arraignment Charge Chart, # 3 Exhibit C − Misdemeanor Disposition 2017)(Wright, Alissa) (Entered: 02/26/2018)
90 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from Alissa Wright dated March 1, 2018 re: Request to Bring Electronic Device. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 03/01/2018)
91 ORDER, The settlement conference is adjourned to March 21, 2018, at 10:00 a.m. SO ORDERED. (Settlement Conference set for 3/21/2018 at 10:00 AM before Magistrate Judge Gabriel W. Gorenstein.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/7/18) (yv) (Entered: 03/09/2018)
92 DECLARATION of Douglas E. Lieb in Support re: 45 MOTION to Certify Class .. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Attachments: # 1 Exhibit A)(Brinckerhoff, Matthew) (Entered: 03/12/2018)
93 REPLY MEMORANDUM OF LAW in Support re: 45 MOTION to Certify Class . . Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Brinckerhoff, Matthew) (Entered: 03/12/2018)
94 ORDER: The settlement conference is adjourned to April 9, 2018, at 10:00 a.m. SO ORDERED., ( Settlement Conference set for 4/9/2018 at 10:00 AM before Magistrate Judge Gabriel W. Gorenstein.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/23/2018) (ama) (Entered: 03/23/2018)
95 JOINT LETTER addressed to Judge George B. Daniels from Scott Levy dated March 29, 2018 re: Request for Status Conference. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Levy, Scott) (Entered: 03/29/2018)
96 AMENDED ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement) and Specific Non−Dispositive Motion/Dispute: ECF No. 95 − Discovery Dispute and Amendment to Case Management Deadlines. Referred to Magistrate Judge Gabriel W. Gorenstein. Motions referred to Gabriel W. Gorenstein. (Signed by Judge George B. Daniels on 4/2/2018) (jwh) (Entered: 04/03/2018)
Minute Entry for proceedings held before Magistrate Judge Gabriel W. Gorenstein: Settlement Conference held on 4/9/2018. (rch) (Entered: 04/09/2018)
97 LETTER addressed to Judge George B. Daniels from Scott D. Levy dated April 17, 2018 re: Notice of Tentative Settlement and Request to Hold Decisions in Abeyance. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella.(Levy, Scott) (Entered: 04/17/2018)
98 NOTICE OF CHANGE OF ADDRESS by Alissa Schecter Wright on behalf of Janet DiFiore, Lawrence Marks. New Address: New York State Office of the Attorney General, 28 Liberty Street, New York, New York, 10005, 212−416−6035. (Wright, Alissa) (Entered: 04/23/2018)
99 JOINT LETTER addressed to Judge George B. Daniels from Alissa S. Wright dated May 4, 2018 re: Status Update. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 05/04/2018)
100 JOINT LETTER addressed to Judge George B. Daniels from Alissa S. Wright dated May 25, 2018 re: Status Update. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 05/25/2018)

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101 MEMO ENDORSEMENT on re: 100 Letter filed by Lawrence Marks, Janet DiFiore. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 5/29/2018) (rro) (Entered: 05/29/2018)
102 JOINT LETTER addressed to Judge George B. Daniels from Alissa S. Wright dated June 14, 2018 re: Status Update. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 06/14/2018)
103 MEMO ENDORSEMENT on re: 102 Letter filed by Lawrence Marks, Janet DiFiore. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 6/19/2018) (jwh) (Entered: 06/19/2018)
104 JOINT LETTER addressed to Judge George B. Daniels from Alissa S. Wright dated July 6, 2018 re: Status Update. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 07/06/2018)
105 MEMO ENDORSEMENT on re: 104 Letter filed by Lawrence Marks, Janet DiFiore. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 7/9/2018) (jwh) (Entered: 07/09/2018)
106 JOINT LETTER addressed to Judge George B. Daniels from Alissa S. Wright dated July 19, 2018 re: Status Update. Document filed by Janet DiFiore, Lawrence Marks.(Wright, Alissa) (Entered: 07/19/2018)
107 MEMO ENDORSEMENT on re: 106 Letter filed by Lawrence Marks, Janet DiFiore. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 7/23/2018) (rro) (Entered: 07/23/2018)
108 PROPOSED STIPULATION AND ORDER. Document filed by Jason Garcia, Joseph Joshua, Juan Ortiz, Ronnie Pagan, Michael Torres, Christopher Trowbridge, Luis Virella. (Brinckerhoff, Matthew) (Entered: 08/09/2018)
109 STIPULATION AND ORDER OF SETTLEMENT: The Litigation, including all pending deadlines and motions, shall be stayed for a period of four years from the date this Agreement is so−ordered by the Court (the "Settlement Period"), unless the Litigation is reinstated pursuant to Paragraph 2, and as further set forth in this stipulation. (Signed by Judge George B. Daniels on 8/9/2018) (jwh) (Entered: 08/09/2018)