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FOSTER v. MORGENTHAU

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 17, 1986

DANIEL P. FOSTER, KIT CONELLY DECIOUS, AMANDA REID, DAVID MITCHELL a/k/a HAROLD JONES, KATHLEEN M. PAOLO, MARK C. ORRISCH, JOHN DOE and CHRISTOPHER DAY, Plaintiffs,
v.
ROBERT M. MORGENTHAU, in his official capacity as District Attorney of the County of New York, Defendant

The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

On April 7, 1986 some of the plaintiffs in the above-captioned matter appeared before this Court. They requested, and the Court issued, an order requiring the defendant to show cause why a temporary restraining order ("TRO") and a preliminary injunction precluding criminal prosecution of the instant plaintiffs as defendants in a state court proceeding should not be issued. The defendant appeared that afternoon, and the Court heard oral argument from both sides on plaintiffs' application for a TRO and a preliminary injunction. That same afternoon, the Court, after considering plaintiffs' moving papers and oral presentation, denied plaintiffs' application for a TRO. Because there appears to be some confusion about this Court's ruling and the events subsequent to April 7, the Court will attempt to clarify its ruling.

 On April 7, the Court denied plaintiffs' application for a TRO primarily for three reasons. First, the Court concluded that Younger v. Harris, 401 U.S. 37 (1971), precluded this Court from enjoining an ongoing state criminal proceeding. Because the state criminal proceeding to be enjoined was then on the eve of trial, after lengthy pre-trial proceedings, the Court concluded that the policy considerations which preclude enjoining ongoing state criminal proceedings were particularly strong in the instant case. The Court also denied the extraordinary relief sought by plaintiffs because their excessive delay in seeking that relief belied any legitimate claim of irreparable harm. See Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985). Finally, the Court concluded that plaintiffs' allegations of bad faith by the defendant were not properly supported, nor even sufficiently articulated. Plaintiffs, therefore, failed to show any likelihood of success on the merits, present any sufficiently serious question going to the merits of the litigation, or demonstrate irreparable harm.

 For the reasons outlined above and for the reasons outlined on the record on April 7, 1986, the Court denied plaintiffs' complaint at that time, however, the Court permitted plaintiffs to supplement their moving papers for a preliminary injunction.

 On April 10, 1986, plaintiffs once again sought an order to show cause. After reviewing those moving papers, the Court refused even to issue the order to show cause. Plaintiffs' allegations were no clearer and no more meritorious than those raised in the April 7 application. In view of this, the Court did want to burden state officials with answering this frivolous application. Nevertheless, the Court did not dismiss plaintiffs' complaint at that time.

 On April 15, 1986, plaintiffs, for the third time, sought an order to show cause from this Court. This application is also frivolous. Despite ample time to do so, plaintiffs have failed to specify clearly and demonstrate either bad faith by the defendant or any legitimate reason why this Court should enjoin a criminal trial already in progress in state court from continuing. In addition to all of the reasons already outlined above, the state trial and appellate courts are competent to consider all of the allegations plaintiffs raise in the instant case. Because plaintiffs have now taken, unsuccessfully, three bites of the apple, the Court will not only decline to sign the most recent order to show cause, but it will also deny the application for a preliminary injunction and dismiss the instant complaint with prejudice.

 SO ORDERED.

19860417

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