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IRISH LESBIAN & GAY ORG. v. GIULIANI

March 2, 1996

THE IRISH LESBIAN AND GAY ORGANIZATION, Plaintiff, against RUDOLPH W. GIULIANI, in his official capacity as Mayor of the City of New York, WILLIAM J. BRATTON, in his official capacity as Police Commissioner of the City of New York, and THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 Plaintiff brings this action challenging defendants' denial of the plaintiff's application for a permit to conduct a parade on March 16, 1996 prior to the annual St. Patrick's Day Parade (the "Parade") on 5th Avenue in New York City. Plaintiff alleges that Section 10-110 of the Administrative Code of the City of New York, the provision under which the defendants allegedly administer applications for parade permits, violates the United States Constitution and the New York State Constitution, both on its face and as applied to the plaintiff. The plaintiff seeks a preliminary injunction and injunctive and declaratory relief pursuant to 42 U.S.C. § 1983, and 28 U.S.C. § 2201, respectively. On February 27, 1996, the plaintiff brought an Order to Show Cause why an order should not be entered granting the plaintiff expedited discovery with respect to its complaint. At a hearing held on February 27, 1996 the defendants made an application to transfer this action to the Honorable John F. Keenan as a related matter. See Irish Lesbian and Gay Org. v. Bratton, 882 F. Supp. 315 (S.D.N.Y.) (Keenan, J.), aff'd, 52 F.3d 311 (2d Cir. 1995). The defendants also made an application to submit a motion to dismiss the complaint on the basis of res judicata or collateral estoppel by the middle of next week before proceeding with discovery or a hearing on the merits of the preliminary injunction. The defendants submitted a memorandum of law in support of their application to transfer and in response to the plaintiff's motion for expedited discovery. The plaintiff submitted its reply papers with respect to both issues on March 1, 1996. After reviewing the submissions of the parties and the relevant cases, and having considered the arguments by counsel, the Court hereby orders that:

 1. The defendants' application to transfer this action to Judge Keenan is denied. In the Southern District of New York, whether to transfer a case to another District Judge is a matter left solely to the discretion of the Court under the Rules for the Division of Business Among District Judges, adopted pursuant to 28 U.S.C. §§ 137, 2071, and Fed. R. Civ. P. 83. Principally, these rules govern the assignment and transfer of actions among judges. The Division of Business Rules explicitly state that litigants and their attorneys have no rights under the Rules. See S.D.N.Y. Division of Business Rules, preamble. See also United States v. International Bhd. of Teamsters, 697 F. Supp. 710 (S.D.N.Y. 1988); Shea v. Angulo, No. 93 Civ. 4183, 1994 U.S. Dist. LEXIS 3007, *5, 1994 WL 86374, at *1 & n.3 (S.D.N.Y. Mar. 16, 1994).

 The transfer of related cases is governed by Division of Business Rule 15. That Rule provides, in relevant part:

 
[A] civil case will be deemed related to one or more other civil cases and will be transferred for consolidation or coordinated pretrial proceedings when the interests of justice and efficiency will be served. In determining relatedness, a judge will consider whether (i) a substantial saving of judicial resources would result; or (ii) the just efficient and economical conduct of the litigations would be advanced; or (iii) the convenience of the parties or witnesses would be served. Without intending to limit the criteria considered by the judges of this court in determining relatedness, a congruence of parties or witnesses or the likelihood of a consolidated or joint trial or joint pretrial discovery may be deemed relevant.

 2. The defendants' application to make a motion to dismiss the complaint on the basis of res judicata or collateral estoppel before proceeding with discovery or a hearing on the merits of the preliminary injunction is denied. The defendants may of course make any motion available to them under the Federal Rules of Civil Procedure, including a motion to dismiss under Rule 12(b). That is not an independent reason to delay discovery, however, or to defer consideration of the preliminary injunction motion. Given the timing of the Parade which is scheduled in only two weeks, it is plain that the preliminary injunction must be heard and determined before that time. Deferring the full briefing and hearing until a hearing on any motion to dismiss could prevent a full opportunity for the parties to present their arguments and evidence on the preliminary injunction. The issues of res judicata and collateral estoppel, to whatever extent they may apply in this case, are best addressed in the context of the determination of the preliminary injunction itself. The defendants can raise all of those arguments as part of their argument that the plaintiff is unlikely to succeed on the merits of its claim.

 3. The plaintiff's application for expedited discovery is denied. To evaluate a request for expedited discovery, the following factors must be considered:

 
(1) irreparable injury, (2) some probability of success on the merits, (3) some connection between expedited discovery and the avoidance of the irreparable injury, and (4) some evidence that the injury that will result without expedited discovery looms greater than the injury that the defendant will suffer if the expedited relief is granted.

 Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982). See Rosecliff, Inc. v. C3, Inc., No. 94 Civ. 9104, 1995 U.S. Dist. LEXIS 5, *5, 1995 WL 3024, at *2 (S.D.N.Y. Jan. 3, 1995); Advanced Portfolio Technologies, Inc. v. Advanced Portfolio Technologies Ltd., No. 94 Civ. 5620, 1994 U.S. Dist. LEXIS 18457, 87, 1994 WL 719696, at *3 (S.D.N.Y. Dec. 28, 1994); Twentieth Century Fox Film Corp. v. Mow Trading Corp., 749 F. Supp. 473, 475 (S.D.N.Y. 1990); see also Crown Crafts, Inc. v. Aldrich, 148 F.R.D. 151, 152 (E.D.N.C. 1993) (adopting Notaro as "compelling"). The parties agree that, based upon the alleged deprivation of constitutional rights, the plaintiff has alleged sufficient irreparable injury if the relief they seek is not granted. The defendants contest, however, the remaining three elements under the Notaro test.

 The plaintiff's document request is vast. It encompasses all documents relating to permit applications, whether granted or denied, for any parade since 1985. It also seeks memoranda and reports from administrative and law enforcement sources regarding the assignment or provision of police, traffic control, sanitation, and other services for each of the St. Patrick's Day parades since 1990. The plaintiff also requests all correspondence between the defendants, the plaintiff, and numerous others concerning the plaintiff's efforts to march in, or to obtain a permit to march in or protest the annual St. Patrick's Day parades since 1991. The plaintiff's efforts have been the subject of substantial prior litigation.

 In sum, the plaintiff's discovery request is a broadside not reasonably tailored to the time constraints under which both parties must proceed or to the specific issues that will have to be determined at the preliminary injunction hearing. The scope of the requested documents, in some cases going back over ten years, does not correspond to the plaintiff's allegations with respect to this year's permit denial or its claimed need for expeditious relief. Insofar as the documents are requested in support of the plaintiff's assertion that the permitting scheme is unconstitutional, that alleged relationship does not justify expedited discovery under the time constraints presented here--circumstances largely of the plaintiff's making. The plaintiff's claim that the permitting scheme is unconstitutional does not depend on the denial of this year's permit application. Indeed, when this action was filed the plaintiff was not aware its application had been denied. The claim could have been brought in October 1995 when ILGO submitted ...


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