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United States District Court, Western District of New York

August 19, 2003


The opinion of the court was delivered by: John T. Elfvin, Senior District Judge


The Court will not reiterate the facts of this case, which were set forth in its August 9, 2002 Order. On June 9, 2003 plaintiff filed a motion seeking leave to file an amended complaint — which would add ninety-nine additional plaintiffs as well as omit the now-dismissed due process claim. Inasmuch as there is no reason why plaintiffs must proceed as a class action — as opposed to seeking joinder under Rule 20 of the Federal Rules of Civil Procedure ("FRCvP") — plaintiff's motion for leave to file an amended complaint will be granted. Although plaintiff filed this motion four days before the end of discovery, no additional discovery will be necessitated. Indeed, as noted at oral argument, plaintiffs' equal protection claims would appear to stand or fall [ Page 2]

as a group and little, if any, additional information would be needed to oppose the "new" claims. Moreover, several discovery issues remain outstanding in any event. Leave to amend shall be freely given under FRCvP 15(a).*fn2 Judicial economy compels this Court to find that the requirements of FRCvP 20(a) are easily met under the circumstances of this case.*fn3 Accordingly, plaintiff's motion for leave to serve and file an amended complaint will be granted.*fn4

On June 13, 2003 plaintiff filed a motion for reconsideration and to compel discovery. The "reconsideration" motion seeks clarification of this Court's August 9, 2002 Order, which provided in relevant part that

"this Court declines respondent's [sic] invitation to convert its motion into one for summary judgment absent discovery on the issue of whether petitioner is similarly situated vis-a-vis any confidential/managerial employees other than those at the Library." August 9, 2002 Order at 8.
The parties have adopted different interpretations of this sentence, which has translated into heated discovery disputes. The Court was merely indicating that it would not convert defendants' FRCvP 12 motion into a FRCvP 56 motion absent discovery on [ Page 3]

who was similarly situated with plaintiff.*fn5 Beyond this clarification, plaintiff's motion for reconsideration will be denied.

Nonetheless, the parties continue to dispute the scope of discovery. Discovery shall be permitted concerning any confidential/managerial employee employed by the County — including Library employees. The scope of discovery shall exclude, however, all other employees — including union employees and part-time, hourly, seasonal and flat-salaried employees. Consequently, plaintiff's motion to compel will be granted to the extent that it seeks discovery concerning confidential/managerial employees of the County.

With respect to defendants' assertion of the deliberative process privilege, such cannot be considered in a vacuum. Accordingly, this Court will order defendants to produce a privilege log by September 30, 2003.

With respect to plaintiff's request to compel the deposition of County Executive Joel A. Giambra, this Court will defer decision until pending discovery has been completed. Indeed, plaintiffs may have to demonstrate, inter alia, that they cannot obtain such discovery from any other source. See e.g., Marisol A. v. Giuliani, 1998 WL 132810, at *2-3 (S.D.N.Y. 1998). [ Page 4]

With respect to plaintiff's request to compel the depositions of several County Legislators (and former legislator Crystal A. Peoples) who served when the subject Budget Provision was enacted, such will be granted inasmuch as no legislator has asserted legislative privilege — and the defendants lack standing to raise such a privilege on a legislator's behalf.*fn6

Accordingly, it is hereby ORDERED that plaintiff's motion seeking leave to file an amended complaint is granted, that plaintiff's motion for reconsideration is denied, that plaintiff's motion to compel discovery is granted in part and denied in part, that defendants shall produce a privilege log by September 30, 2003 and that the Court shall schedule a new FRCvP 16(b) conference after the Amended Complaint has been filed.*fn7

*fn2 See Foman v. Davis, 371 U.S. 178, 182 (1962).

*fn3 Cf. Puricelli v. CNA Ins. Co., 185 F.R.D. 139, 142-143 (N.D.N.Y. 1999).

*fn4 The Amended Complaint shall omit Timothy Lynch (for the reasons set forth by Judy S. Hernandez, Esq. in her letter dated July 18, 2003). Moreover, plaintiff should note that the caption reads "Frederick, J. Platek, Jr." — which this Court construes to contain an erroneous comma placed between the first name and middle initial.

*fn5 The phrase "other than those at the Library" merely acknowledged that the Complaint had already specifically referred to such class of employees.

*fn6 Inasmuch as plaintiffs do not assert a section 1983 claim, Bogon v. Scott-Harris, 523 U.S. 44 (1998) is inapplicable.

*fn7 This Court strongly encourages the parties to explore settlement options at this time. [ Page 1]

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