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KELLY v. CITY OF NEW YORK

United States District Court, S.D. New York


September 7, 2005.

ALBERT KELLY, et al., Plaintiffs,
v.
THE CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

Plaintiffs are former employees of the Department of Corrections of the City of New York (the "DOC"). Plaintiffs' federal claims are brought under 42 U.S.C. § 1983 for alleged violations of the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also assert claims under the New York State Human Rights Law and the New York City Human Rights Law.

Defendants now move for summary judgment. Plaintiffs oppose that motion, and cross-move to strike certain evidence presented by defendants and for a continuance pursuant to Fed.R.Civ.P. 56(f).

  Plaintiffs' motion to strike is granted in part and denied in part. Plaintiffs' motion for a continuance is denied. Defendants' motion for summary judgment is granted. Procedural History

  Plaintiffs initiated this action by the filing of a complaint on October 4, 2001, and filed an amended complaint on January 23, 2002. Plaintiffs' amended complaint asserted eight causes of action. The parties cross-moved for partial summary judgment, and on July 9, 2002 the late Judge Allen Schwartz issued an order granting defendants summary judgment on all but the equal protection claim. On January 6, 2003, plaintiffs moved for reconsideration of the July 9 order. On February 20, 2003, Judge Schwartz issued an order granting in part plaintiffs' motion for reconsideration, and reinstating plaintiffs' claims under the New York State and City Human Rights Laws. In April 2003, this case was reassigned to the docket of the undersigned judge.

  Part One of this opinion will address defendants' motion for summary judgment. Plaintiffs' motions will be addressed in Part Two.

  Part One

  Facts

  Plaintiffs in this action are Albert Kelly, Michael Flynn, Ajama Jabari Bey, Wayne Bollin Bey, Ntchwaidumela Bey, Agnes Bey, and Zaimah El. These are the names which are used in the caption and the names which generally appear in the motion papers. However, certain of the plaintiffs are now or in the past have been referred to by different names: Albert Kelly is now known as Faruq Noble Bey; Ajama Jabari Bey was formerly known as Tyrone Weston; Wayne Bollin Bey was formerly known as Wayne Bollin; Ntchwaidumela Bey was formerly known as Ashley Steward; Agnes Bey was formerly known as Agnes Conrad; and Zaimah El was formerly known as Gwendolyn Poche-Houston. For the sake of consistency and clarity, this court will refer to the plaintiffs using the names under which they filed this action, even though certain papers in evidence bear the other names. Plaintiffs were all DOC employees.

  The Investigation

  Sometime in 1996, the NYPD received intelligence information about a group known as "The Great Seal Association of Moorish Affairs." This information was communicated throughout the NYPD by a memorandum dated April 26, 1996. That memorandum was from the Chief of Detectives, and was titled "Heightened Security Alert on Car Stops Involving `Moorish National' License Plates." The memorandum cautioned that members of the group known as "The Great Seal Association of Moorish Affairs" were suspected of armed robberies and trafficking in high-powered automatic weapons. The memorandum warned law enforcement officers to look out for, among other things, vehicles bearing "Moorish National" license plates; persons bearing official-looking documents asserting that the bearer has diplomatic immunity or is an employee of the Justice Department; or persons who refuse to recognize the authority of police officers. The memorandum does not mention religion. The memorandum was forwarded to defendant Michael Caruso as part of a fax sent on July 9, 1996.

  At all relevant times, defendant Michael Caruso was the Inspector General of the DOC. In 1996, a number of suspicious tax forms and other papers submitted by DOC employees were forwarded to the DOC's Inspector General's Office. The submitted papers included statements by certain DOC employees that they were exempt from paying taxes or that they were immune from the jurisdiction of the United States and the State of New York.

  The tax forms in question were forms filed by an employee with an employer dealing with the withholding of income tax. The federal form is a W-4 and the New York State form is an IT-2104. Both are entitled "Employee's Withholding Allowances Certificate." These forms permit an employee to claim "allowances," such as dependents, in order to reduce the amount of withholding. The forms also permit an employee to claim complete exemption from withholding. In 1996, the New York City Office of Payroll Administration (the "OPA") reported that many New York City employees had filed their W-4 tax forms with either unusually high numbers of claimed allowances or notations that they were totally exempt from paying any income tax. As a result of this information, the New York City Department of Investigation (the "DOI") initiated a City-wide investigation to determine whether any City employee had engaged in criminal activity in submitting tax documents related to employment by the City. As part of the investigation, the OPA generated a list of approximately 1800 New York City employees who had filed W-4 forms with 40 or more claimed allowances. The report indicated certain information about each employee, but did not contain information about an employee's race, religion, or nationality.

  The OPA list was provided to the New York State Attorney General's Office and the Manhattan District Attorney's Office. Those offices then directed DOI to arrest approximately 100 of the 1800 employees on the OPA list. The arrested employees were subsequently criminally prosecuted by the Attorney General or the District Attorney. Approximately 70 of those arrested and criminally charged were DOC employees, six of whom identified themselves as "Moorish-American" nationals. The arrested DOC employees were suspended from work without pay. Those DOC employees who were later convicted of felonies or of certain misdemeanors involving the oath of office were automatically terminated from their employment with the DOC pursuant to § 30(1)(e) of the Public Officers Law. Those DOC employees who were criminally prosecuted but were not terminated pursuant to § 30(1)(e) were served with disciplinary charges for, inter alia, filing false tax information.

  Of the remaining 1700, approximately 1100 to 1200 were employees of the DOC. Of the DOC employees, 184 had submitted federal or state tax forms indicating that they were not subject to federal or state income taxation. Some of the 184 also submitted other papers in support of their claimed exemption. Caruso recommended that charges and specifications be brought against the 184 DOC employees for, among other things, filing false tax information.

  Out of these 184 employees, Caruso recommended that 21 be terminated. The 21 individuals recommended for termination included the seven plaintiffs in this action. He viewed these 21 as being guilty of particularly serious misconduct in the filing of allowance forms and the supporting papers. For instance, many of them had alleged that they were not subject to the jurisdiction of the United States and the State of New York, and had purported to renounce their United States citizenship. Some had stated that they were not subject to arrest. All of them indicated that they were "Moorish American" nationals. This raised at least a suspicion that they were part of the group known as the "The Great Seal Association of Moorish Affairs," which, as explained earlier, had been determined to be a dangerous group by the police.

  Documents Submitted by Plaintiffs

  The following is a description of the documents received by the DOC Inspector General's Office (Caruso's office) in the course of its inquiry. These consisted of withholding tax allowance forms and other documents submitted to the DOC in support of the claims in the allowance forms.

  Albert Kelly

  The Inspector General's Office was forwarded seven tax forms signed by Kelly: two federal W-8 forms titled Certificate of Foreign Status, one each from 1995 and 1996, certifying under penalty of perjury that Kelly was not a U.S. citizen or resident for those years; four federal W-4 forms, two each from 1996 and 1997, certifying under penalty of perjury that Kelly was exempt from withholding for those years; and one state IT-2104-E form titled Certificate of Exemption from Withholding certifying under penalty of perjury that Kelly was exempt from state withholding for 1996. Kelly does not deny that he signed and submitted these forms. The Inspector General's Office also received a document titled "Constructive Notice of Waiver of Tort" (the "Notice"). The Notice is not dated, but a photocopy of the envelope indicates that it was sent to the DOC by certified mail on March 28, 1997. The return address on the envelope indicates that the sender was Jawan Akil Bey. Kelly admits signing the Notice during March 1997, but claims that he did not know it would be filed with the DOC. Although the Notice contains a distribution page listing at least four DOC employees as recipients, Kelly claims that he never saw that page.

  The Notice purports to establish that "We the People, `Beys', `Els' and `Washitaw Nationals', Natural Persons Sui Juris, the aboriginal, Free National Moors and Continental united states Citizens . . . cannot be lawfully obligated or compelled to be subjugated to involuntary withholding without our informed consent pursuant to Rodrigues v. Secretary of Labor Donovan, 769 F.2d 1344 (1985)." The Notice also purports to establish a contract, under which "violations henceforth shall constitute acceptance of the contract herein offered for ONE MILLION DOLLARS ($1,000,000) in GOLD (31 U.S.C. § 5112) per Right, per Day." Not surprisingly, the above-cited case and statute are utterly inapposite. The Notice includes the statement that "[t]he fact that our actions are pursuant to our sincerely held spiritual convictions means that even Congress shall make no law prohibiting the free exercise thereof." The final line of the Notice reads "We are aboriginal `Beys', `Els' and `Washitaw Nationals'" and is followed by a number of signatures, including that of Faruq Noble Bey, aka Albert Kelly.

  The final document forwarded to the Inspector General's Office as part of Kelly's file is a letter from David Chavis El. The letter is not specifically addressed to any DOC employee; rather, it is addressed to "All That May Be Concerned." The return address on the letter indicates that it was sent on behalf of the "Azizan Moorish Nation", and the signature line indicates that Chavis El is the National Ambassador. The letter purports to establish that

The Azizan Moorish National presenting this correspondence is a Citizen of the Azizan Moorish Nation, in good standing, and is protected by International Law. Our National is NOT a U.S. citizen, therefore falling within the jurisdiction of the Azizan Moorish Nation, and is not subject to U.S. regulations, but protected by them.
We of the Azizan Moorish Nation are Indigenous and Aboriginal to the Continental Amexem (Americas). This has been substantiated by the historical research of Prof. Ivan Van Sertima regarding the Moorish presence in Ancient Amexem (America), as well as documentation from the Moroccan Embassy testifying to the presence of Moors on this land mass at least a thousand years before the arrival of Columbus.
The letter is neither signed nor dated, and does not name any specific person. Kelly does not deny submitting this document, but denies that he intended to renounce his United States citizenship or claim immunity from the jurisdiction of the United States or the State of New York. Michael Flynn

  The Inspector General's Office was forwarded three tax documents signed by Flynn. The first tax document is titled "Certificate of Exemption from Withholding in Lieu of Form W-4" and is paired with single-page cover letter. The letter is undated, though the Certificate indicates that it is to apply to withholdings during 1996. The Certificate certifies under penalty of perjury that Flynn is "EXEMPT by law from withholding for the year of 1996." The cover letter is ostensibly from Flynn's employer and purports to give notice to the IRS that the employer will stop withholding from Flynn's income unless the IRS responds within 30 days. The cover letter appears to be an uncompleted form, as spaces marked "[ON EMPLOYER'S LETTERHEAD]" and "Sincerely: Owner/Manager of Business" have not been replaced with the actual information. The second is a federal W-4 form from 1996, certifying under penalty of perjury that Flynn claimed 99 allowances for that year. The third is a state IT-2104 form titled "Employee's Withholding Allowance Certificate" dated August 21, 1996, certifying that Flynn claimed 99 allowances for that year. Flynn does not deny that he signed and submitted these documents.

  The Inspector General's Office was also forwarded a letter from Flynn to Alan Vengersky, the DOC's Director of Personnel. In the letter, dated November 12, 1996, Flynn requests that the DOC "stop deducting taxes from my paycheck" because, based on his research, the government has no authority to impose a direct tax on him. Flynn does not deny that he signed and submitted this letter.

  The Inspector General's Office also received a document titled "Constructive Notice of Waiver of Tort" signed by Michael Flynn. This document is identical to the Notice described earlier. However, the Notice in Flynn's file also contained a cover letter on the letterhead of The Great Seal National Association of Moorish Affairs. The cover letter is undated, and signed by Jawan Akil Bey, the apparent sender of the Notice. Flynn admits signing the Notice, but claims that he is not a Moorish American or a Washitaw National. Rather, Flynn claims he signed the Notice "to support their religious beliefs about why they are not subject to taxes." Like Kelly, Flynn claims that he did not submit the Notice to the DOC. Unlike Kelly, Flynn does not claim that he was unaware that a third party might submit the Notice to the DOC.

  Ajamu Jabari Bey

  The Inspector General's Office received five tax documents signed by Jabari Bey: two federal W-4 forms, one each from 1981 and 1996, certifying under penalty of perjury that Jabari Bey was exempt from withholding for those years; one document titled "Withholding Exemption Certificate in Lieu of Form W-4" from 1997, certifying under penalty of perjury that Jabari Bey was exempt from withholding for the year 1997; one document titled "Certificate of Foreign Status for a Moorish-American" dated January 17, 1997, certifying under penalty of perjury that Jabari Bey is not a citizen or resident of the United States; and one state IT-2104 form dated August 7, 1996, certifying that Jabari Bey claimed 99 allowances for that year. Jabari Bey does not deny that he signed and submitted those documents.

  The Inspector General's Office also received a "Constructive Notice of Waiver of Tort" signed by Jabari Bey. The Notice is identical to the ones described earlier, and includes the same cover letter. Jabari Bey admits signing the Notice, but claims that he did not know that it would be sent to the DOC. However, Jabari Bey admits that Jawan Akil Bey mailed a copy of the Notice to the DOC.

  The Inspector General's Office was forwarded a number of other documents signed or submitted by Jabari Bey. The first document was titled "Legal Notice Declaration of Status" and, like the Notice, was on the letterhead of The Great Seal National Association of Moorish Affairs. The document is undated, and there is no addressee. Three copies of this document were forwarded to the Inspector General's Office: though not identical, the only differences are cosmetic. The document purports to give "lawful and legal notification, to you, concerning the RIGHT(S), IMMUNITY(IES) and SOVEREIGN STATUS of the FREE MOORISH NATIONALS; the Beys and Els of the Continental United States." The document states that

the FREE MOORISH NATIONALS "were not included and were not intended to be included" as "citizens" (subjects) of the Union States Rights Republic. Resultantly, the FREE MOORISH NATIONALS, bearers of the names/titles Bey and El, are excluded from Union States Rights Republic (U.S.A.) jurisdiction. The FREE MOORISH NATIONALS are Sovereign (self-governed) by and ONLY obligated to THE FREE MOORISH ZODIAC CONSTITUTION, THE GREAT SEAL and the principles and standards embodied in the MOORISH NATIONAL FLAG . . . THE FREE MOORISH NATIONALS maintain a NON-OBLIGATORY respect for the Union States Rights Republic (U.S.A.), its members, laws, ordinances, codes, customs and tradition.
The document goes on to state that

 

the FREE MOORISH NATIONALS, bearers of the names/titles Bey and El, the LEGAL CITIZENS of the Continental United States, the land of our Moorish forefathers of Moroccan descent, having and retaining ALL SUBSTANTIVE "RIGHTS AND IMMUNITIES OF NATIONALS", enjoy and operate upon consummated, vested Constitutional RIGHTS AND IMMUNITY(IES) from TAXATION, CRIMINAL AND CIVIL JURISDICTION by, and of, the Union States Rights Republic (U.S.A.) . . . [and] this firmly establishes a WANT OF JURISDICTION on the part of the Union States Rights Republic (U.S.A.).
The document is signed by Jabari Bey, and the phrase under the signature line indicates that Jabari Bey is "A FREE AND SOVEREIGN MOORISH-AMERICAN." Jabari Bey does not deny that he signed and submitted this document.

  The Inspector General's Office was also forwarded two copies of a document titled "Letter of Credence: Notification of Rights and Immunities." The copies appear to be identical. The document is on the letterhead of The Great Seal National Association of Moorish Affairs and is undated. The document is addressed to all federal, state, and city officials and public servants, and states that "[t]he Sovereign individual, named herein, is not to be arrested or held for detention under any circumstances. The individual named herein is exempt from Customs, tariffs, taxation, and any hindrance or restriction of his or her freedom of movement." The document is signed by Jabari Bey, and his signature is dated August 1996. Jabari Bey does not deny that he signed and submitted this document.

  The Inspector General's Office also received two copies of a document titled "TO ALL WISE MAN KIND." The copies appear to be identical. The document contains what appears to be a picture of Jabari Bey next to his name, title, certification number, and signature. The document is a "legal guide . . . dedicated to the chief of police and the staff of the police department in regard to the arrest of the free conscious Moors." The document goes on state that "I concede in the name of the law truth and justice that I cannot be legally arrested or tried in the fifty Union States of America by said law of the land," apparently because the laws of the United States govern "only the rights and conduct of the so called white people." Jabari Bey does not deny that he signed and submitted this document.

  The Inspector General's Office also received two copies of a document entitled "Clock of Destiny." The documents are identical, except that one is attached to a document that appears to be the Zodiac Constitution for the Moorish Nation of North America. The document contains Jabari Bey's name and signature next to what is apparently a photo of his face. Article 3 of the Zodiac Constitution states that "The lawmakers of the 48 States Union order cannot force the Moors — the Beys and Els, to pay taxes." Jabari Bey does not deny that he signed and submitted this document.

  The Inspector General's Office also received a document titled "LEGAL NOTICE!". The document is undated, and in it Jabari Bey professes that "having legally obtained my Moorish Nationality/Birthright and Name/Title, being aboriginal by birth and inheritance, let it be resolved, that my former name has been changed to Ajamu Jabari Bey." The document thus purports to be a "lawful legal entry of notification of nationality and name change." Jabari Bey does not deny that he signed and submitted this document. Wayne Bollin Bey

  The Inspector General's Office received two tax documents signed by Bollin Bay: one form titled "Withholding Exemption Certificate in Lieu of Form W-4" from 1996, certifying under penalty of perjury that Bollin Bey was exempt from withholding for the year 1996; and one federal W-4 form dated 1994, certifying under penalty of perjury that Bollin Bey was exempt from withholding for that year.

  The Inspector General's Office also received a document titled "Certificate of Foreign Status for a Moorish-American, Non-Resident Alien Outside the District of Columbia, i.e., the United States, 26 USC 7701(a)(9)." The document purports to be filed with the IRS in place of a Form 1099 or Form W-8. The document states that the signer is immune from withholding because "the signer is an exempt foreign individual" and is not a resident or citizen of the United States. The document also refers to the "Moorish Nation" and mentions the signer's "non-obligatory respect for the laws of the United States of America." The document, which is notarized, bears the signature of Wayne Bollin Bey. Bollin Bey does not deny that he signed and submitted this document. Ntchwaidumela Bey

  The Inspector General's Office received five tax documents signed by Bey: two federal W-4 forms, one each from 1996 and 1997, certifying under penalty of perjury that Bey was exempt from withholding for those years; one document titled "Withholding Exemption Certificate" from 1996, certifying under penalty of perjury that Bey was exempt from withholding for the year 1996; and two state IT-2104 forms dated April 30, 1996, and November 29, 1996, certifying that Bey claimed 99 allowances for that year. Bey does not deny that he signed and submitted those documents.

  The Inspector General's Office also received a "Constructive Notice of Waiver of Tort" signed by Ntchwaidumela Bey. The Notice is identical to those described earlier, and includes the same cover letter. Bey admits signing the Notice, but claims that he did not know that it would be sent to the DOC.

  The Inspector General's Office was also forwarded documents titled "Legal Notice Declaration of Status," "Letter of Credence: Notification of Rights and Immunities," "TO ALL WISE MAN KIND," and "Clock of Destiny." Those documents are the same as those submitted by Jabari Bey and described above, except these bear Ntchwaidumela Bey's name and likeness instead. The Inspector General's Office also received a document titled "LEGAL NOTICE!". The document is undated, and in it Bey professes that "having legally obtained my Moorish Nationality/Birthright and Name/Title, being aboriginal by birth and inheritance, let it be resolved, that my former name has been changed to Ntchwaidumela Bey." The document thus purports to be a "lawful legal entry of notification of nationality and name change." Bey does not deny that he signed and submitted this document.

  There is also a document titled "Declaration of Sovereignty." The document is on the letterhead of The Great Seal National Continental Congress Assembled, and appears to be based on the Declaration of Independence. The Declaration states that "the Indigenous Moorish-Americans have the right to a nationality, possess sovereign immunity, are Free from discrimination, and Exempt from all statutes, rules and regulations." There is also a copy of the Zodiac Constitution for the Moorish Nation of North America, which was described above.

  The Inspector General's Office also received a document titled "Constructive Notice by Affidavit." The document, which is addressed to the DOC's Payroll Department, states that Bey is a "Moorish-American National" and that he is an "Official of The Great Seal Nation Association of Moorish Affairs." The document then advises the Payroll Department that it does not have authority to withhold taxes from Bey's income. The document lists as enclosures, among others, a "Certificate of Foreign Status for a Moorish-American," a "Certificate of Exemption from Withholding," and a document titled "Employer Options." The "Constructive Notice by Affidavit" is signed by Bey and dated January 12, 1997. There is also a Certificate of Service in which Bey avers that he served the document and the enclosures by hand on the Payroll Department of the DOC on January 13, 1997.

  The Inspector General's Office apparently received only two of the above-mentioned enclosures. There are two copies of a document titled "Certificate of Exemption from Withholding In Lieu of Form W-4." That document states that Bey is immune from federal income tax, and orders the DOC to immediately stop all withholdings.

  There is also the document titled "Employer Options." That document, which is unsigned, advises that the person submitting it is a "Moorish-American National" and an "Official of The Great Seal Nation Association of Moorish Affairs." It also purports to advise the employer on how to deal with the IRS, and threatens legal action of taxes are not withheld.

  There is also a document titled "Rights Pursuant to Zodiac Constitutional Law, Without Prejudice ARR." That document, which is signed by Bey, notes that he has "reclaimed my Moorish Nationality and Birthrights," and that he is an "Official of The Great Seal Nation Association of Moorish Affairs." The document also states that Bey, as a "Free Moorish-American," is not "subject to the jurisdiction of the State or the forum of any United States, corporate State, corporate County, or corporate city." The document makes no mention of any religious beliefs, but instead asserts that Bey is protected by the Moroccan Treaty of 1787.

  Agnes Bey

  The Inspector General's Office received three tax documents signed by Bey: one document titled "Certificate of Exemption From Withholding In Lieu of Form W-4" certifying under penalty of perjury that Bey was exempt from withholding for the year 1996; one document titled "Withholding Exemption Certificate" from 1997, certifying under penalty of perjury that Bey was exempt from withholding for the year 1997; and one state IT-2104 forms dated September 10, 1996, certifying that Bey claimed exempt status for that year. Bey does not deny that she signed and submitted those documents.

  The Inspector General's Office also received a "Constructive Notice of Waiver of Tort" signed by Agnes Bey. The Notice is identical to those described earlier, and includes the same cover letter. Bey does not deny signing the Notice. The Inspector General's Office also received a document titled "LEGAL NOTICE!". The document is undated, and in it Bey professes that "having legally obtained my Moorish Nationality/Birthright and Name/Title, being aboriginal by birth and inheritance, let it be resolved, that my former name has been changed to Agnes Bey." The document thus purports to be a "lawful legal entry of notification of nationality and name change claim." Bey does not deny that she signed and submitted this document.

  The Inspector General's Office was also forwarded a document titled "Letter of Credence: Notification of Rights and Immunities." That document is exactly the same as that submitted by Jabari Bey and Ntchwaidumela Bey and described above, except it bears Agnes Bey's name and likeness instead.

  There is also a document titled "Affidavit of Refusal for Cause" addressed to the DOC. That document states that the DOC lacks jurisdiction to withhold taxes from Bey's income. The document lists a number of specious arguments in support of Bey's position, including the argument that Bey is a "nonresident alien to the United States" and that she is not a citizen. Zaimah El

  The Inspector General's Office received a "Withholding Exemption Certificate" dated December 12, 1996, in which El claims exempt status for that year. El does not deny signing and submitting that document.

  The Inspector General's Office also received a "Constructive Notice of Waiver of Tort" signed by Zaimah El. The Notice is identical to those described above, and includes the same cover letter. El does not deny signing the Notice.

  The Placement on Modified Duty

  The seven plaintiffs in this action, together with 14 other DOC employees, were placed on modified duty in or around January 1998. The determination to do so was based on security concerns. The security concerns apparently arose from the statements by the DOC employees that they were subject neither to arrest nor to the jurisdiction of the United States and the State of New York, their statements renouncing their United States citizenship, and the NYPD's intelligence regarding the group known as "The Great Seal Association of Moorish Affairs." The DOC employees placed on modified duty were required to surrender their firearms and shields, and were reassigned to a facility where they would not come in contact with inmates. The Administrative Charges and Sanctions

  After reviewing the above-described files, Caruso recommended to the DOC Trials Division that administrative charges be drawn against the seven plaintiffs and the 14 others referred to above. He also recommended their termination. The DOC Trials Division filed charges against those 21 employees. Those charges alleged (1) that plaintiffs' filings of false tax documents constituted conduct unbecoming an officer; and (2) that plaintiffs' claims that they were not citizens and were not subject to the jurisdiction of the United States violated their oaths of office, New York State penal law, and other federal and state laws. Caruso also recommended that those 21 employees be terminated from their employment as officers with the DOC. Those charges were filed between March 1998 and June 1998.

  Plaintiffs and the others subsequently received trials before the Office of Administrative Trial and Hearings ("OATH"), where, in November 1998, they were found guilty of conduct unbecoming an officer for filing the false tax documents. Plaintiffs were acquitted of the charges of violating their oaths of office. The administrative law judge recommended a penalty of termination for plaintiffs and 13 of the other employees, and the DOC then terminated them in December 1998. One of the 21 employees, Mildred Lambert, only received a 60-day suspension, apparently because she took affirmative steps to satisfy her tax obligations prior to any investigation or arrest.

  The Security Procedures at 60 Hudson Street

  Certain plaintiffs allege that, following the OATH hearings but prior to the issuance of any decisions, they went to a DOC office building located at 60 Hudson Street to pick up transcripts of those hearings. At the building, plaintiffs encountered what they perceived to be higher than normal security. They allege that officers there had previously received plaintiff's photographs, and the increased security measures were in response to their presence. Plaintiffs also claim that they were approached by Chief Fraser, who told them that they were not authorized to be there, and that they would be arrested if they did not leave. Plaintiffs left, and allege that they were then suspended for another 30-day period.

  Discussion

  Summary Judgment Standard

  Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) requires summary judgment be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the record, this court must assess the evidence "in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." Frito-Lay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944, 957 (2d Cir. 1993). The court may only grant summary judgment when the record taken as whole could not lead a rational trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

  The Equal Protection — Selective Prosecution Claims

  Plaintiffs allege that they were suspended and recommended for termination because of their adherence to the Moorish faith. In order to prevail on their selective enforcement claims, each plaintiff must prove that (i) compared with others similarly situated, the plaintiff was selectively treated, and (ii) the selective treatment was based on an impermissible consideration, in this case religion. Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir. 2001). Each plaintiff bears the burden of showing that he is "similarly situated in all material respects" to the individuals with whom he seeks to compare himself. Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000); see also Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997). The plaintiff need only show that there is a reasonably close resemblance of the facts and circumstances of the plaintiff's and the comparators' cases — not that the cases are identical. Moreover, the plaintiff must establish that the acts of the plaintiff and of the comparators are of comparable seriousness. In addition to an examination of the acts themselves, the determination that two acts are of comparable seriousness requires an examination of the context and surrounding circumstances in which those acts are evaluated. Graham, 230 F.3d at 40.

  Similarly Situated

  Plaintiffs amended complaint alleges that they were selectively treated because of their adherence to the Moorish-American religion. Plaintiffs allege that the selective treatment includes (i) their placement on modified duty, (ii) the implementation of the security procedures at 60 Hudson Street, and (iii) the termination of their employment.

  Plaintiffs claim that they and the 14 other DOC employees (the group of 21 referred to earlier) were recommended by Caruso for termination and that this was selective prosecution. There were 184 DOC employess recommended by Caruso for disciplinary action because of their filing of a false tax form. However, only the 21 were recommended for termination. As a result of the administrative process, the 7 plaintiffs were in fact terminated. Of the others, 13 were either terminated or left the department, and one, who remedied her tax forms prior to any investigation or arrest, received a 60-day suspension. Consequently, the selective prosecution issue raised by these plaintiffs is whether they were improperly selected for termination in contrast to those in the group of 184 who received more lenient treatment.

  The first question to be resolved is whether plaintiffs were "similarly situated" to those in the group of 184 who were not recommended for termination. The court rules that they were not. Unlike the other in the group of 184 who were not recommended for termination, plaintiffs did not merely submit forms or other papers in support of their claimed exemption. They asserted that they were not subject to arrest, or that they were immune from taxation and the jurisdiction of the United States, or that they were not citizens of the United States, or some combination of the above. Moreover, each of the plaintiffs submitted some form or other paper indicating a link to a dangerous group known as The Great Seal Association of Moorish Affairs. These acts are not of comparable seriousness as the acts committed by plaintiffs' proposed comparators, who did not submit forms linking themselves to dangerous groups about whom the NYPD possessed intelligence information. In this case, the appropriate set of comparators is the group of 21 DOC employees who submitted documentation to the DOC in support of their claims of total exemption from withholding, including assertions that those employees were not subject to arrest, were immune from taxation, or were not citizens of the United States. These employees also submitted forms or other papers linking them to a group about which the NYPD and the DOC had serious security concerns.

  Plaintiffs have not shown that they were treated differently from any of the other 21 DOC employees who were similarly situated. Indeed, all of the 21 were suspended. The DOC charged each of them and recommended termination, and those who were found guilty after an OATH hearing were terminated, except for one employee who received a 60-day suspension because she affirmatively attempted to remedy her tax obligations. Even the others left the DOC before the conclusion of the administrative proceedings.

  Assuming plaintiffs could show that they were similarly situated to other DOC employees treated more leniently, they would also have to show that they were selectively treated because of their religious beliefs. However, the evidence is clear that such treatment was because of security concerns raised by their self-identification as Moorish-Americans or Moorish nationals.

  There is no evidence that the NYPD's intelligence information referred to members of any religious group. Rather, it specifically mentioned "diplomatic immunity" and official-looking license plates reading "Moorish National," as well as the group known as "The Great Seal Association of Moorish Affairs." None of those attributes is religious — indeed, the first two implicate prerogatives of nationality or sovereignty. There was no reference to religion or religious beliefs. Indeed, plaintiffs have not submitted any evidence indicating that the group known as "The Great Seal Association of Moorish Affairs" was in any way a religious group, or that its members were adherents of the Moorish religion, or that its membership was limited to practitioners of the Moorish religion. Nor have plaintiffs shown that all Moorish nationals or Moorish-Americans are necessarily practitioners of the Moorish religion.

  The evidence shows that the plaintiffs specifically identified themselves as Moorish nationals or Moorish-Americans, and most of them did so on documents bearing the letterhead of "The Great Seal National Association of Moorish Affairs." The name of that group is almost identical to the name of the non-religious group about which the NYPD's intelligence memorandum warns. Indeed, plaintiffs have not shown that the groups were in fact different or separate. The references to religion are so few and far between that no reasonable finder of fact could find that the documents functioned as or could reasonably be interpreted to be affirmations of a specific religious belief. Indeed, it is not apparent that the defendants were even aware of plaintiffs' religious affiliation.

  Moreover, there is no evidence that the defendants' security concerns were pretextual. Plaintiffs do not challenge the general accuracy of NYPD's intelligence information. Their sole argument is that it did not specifically identify them as security concerns by name. But in light of the intelligence information, and given the contents of the papers the plaintiffs submitted to the DOC, there is no question that the plaintiffs would reasonably be the subject of the DOC's security concerns. Plaintiffs have produced no evidence to show that the DOC in fact targeted plaintiffs because of their religious beliefs. Indeed, the evidence is overwhelming that plaintiffs were selected for discipline because of the bogus tax documents they submitted and because the DOC reasonably believed that they were affiliated with a dangerous non-religious group.

  The Pendent State Law and City Law Claims

  Plaintiffs also assert claims under the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). Five plaintiffs (Ajama Jabari Bey, Wayne Bollins Bey, Ntchwaidumela Bey, and Zaimah E1) have previously filed complaints with the New York State Division of Human Rights alleging violations of the NYSHRL. In each of those cases, the New York State Division of Human Rights issued a determination that there was no probable cause to find that plaintiffs had been discriminated against. Defendants now move for summary judgment on those plaintiffs' claims, arguing that the court lacks subject matter jurisdiction because of the election of remedies clauses in the NYSHRL and NYCHRL.

  The election of remedies provision of the NYSHRL provides, in relevant part, that:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person has filed a complaint hereunder or with any local commission on human rights. . . .
N.Y. Exec. Law § 297(9). The NYCHRL contains a similar provision. See N.Y. City Admin. Code § 8-502(a). The Second Circuit, noting the nearly identical language of the two statutes, has held that the meaning of the city statute is identical to the meaning of the state statute. York v. Assoc. of the Bar of the City of New York, 286 F.3d 122 (2d Cir. 2002). Thus, a plaintiff is barred from maintaining an action under the NYSHRL or NYCHRL when "she has already pursued a statutory claim of employment discrimination encompassing the same allegedly invidious behavior on the part of her employer over the same period of time." Craig-Oriol v. Mount Sinai Hospital, 607 N.Y.S.2d 391 (2d Dept. 1994) (interpreting the NYSHRL). In determining whether an instant claim is barred by the election of remedies provision, the ultimate question is "whether a sufficient identity of issue exists between the complaint before the division and the instant claim." James v. City of New York, 01 Civ. 30 (LTS), 2003 WL 21991591, at *5 (S.D.N.Y. Aug. 20, 2003) (quoting Spoon v. American Agriculturist, Inc., 478 N.Y.S.2d 174, 175 (3d Dept. 1984) (finding a claim barred where facts emanated from "a continuing process of alleged retaliation giving rise to one claim, not several").

  Defendants argue that plaintiffs' claims under the NYSHRL and NYCHRL are barred by the election of remedies clauses. Plaintiffs contend that their earlier complaints to the New York State Division of Human Rights are based on different acts which took place over a different period of time, and are therefore not barred by the election of remedies provision.

  The most obvious flaw in plaintiffs' position here is that it directly contradicts plaintiffs' positions regarding the statute of limitations and the liability of the City of New York. For purposes of those questions, plaintiffs argue that defendants' actions were part of a policy or practice of discrimination on the basis of plaintiffs' adherence to the Moorish-American religion. In support of that argument, plaintiffs assert that defendants' actions are not discrete acts, but rather should be viewed together as part of a discriminatory policy or practice. Despite their protests to the contrary, it is clear that the acts which provided the basis for the claims previously asserted before the New York State Division of Human Rights are part of the same allegedly discriminatory practice as the acts which provide the basis for their current claims. See McNulty v. New York City Dept. of Finance, 45 F.Supp.2d 296, 303 (S.D.N.Y. 1999). Those plaintiffs who elected to pursue remedies before the New York State Division of Human Rights are therefore foreclosed from bringing claims under the NYSHRL and NYCHRL in this court. Since the court does not have subject matter jurisdiction, the claims under the NYSHRL and the NYCHRL brought by Albert Kelly, Ajama Jabari Bey, Wayne Bollins Bey, Ntchwaidumela Bey, and Zaimah El must be dismissed.

  The claims brought by Michael Flynn under the NYSHRL and the NYCHRL remain. The parties have not briefed the merits of those claims. The court declines to exercise supplemental jurisdiction over those claims, and now dismisses them.

  Part Two

  The court will now address plaintiffs' motions to strike certain evidence and for a continuance. Plaintiffs' Motion to Strike

  Facts

  Plaintiffs move to strike the declaration in support of summary judgment made by defendant Michael Caruso, the Inspector General of the DOC, as well as all of the attached exhibits. Plaintiffs also move to strike the exhibits attached to the declaration of Michael DeLarco, counsel for defendants.

  Caruso has made two declarations. The first declaration (the "Caruso Declaration") is dated December 10, 2003, and consists of 52 numbered paragraphs and 22 attached exhibits, marked A through V. The second declaration (the "Caruso Supplement"), which plaintiffs do not challenge, was made in response to plaintiffs' motion to strike, and is dated April 25, 2004. The Caruso Supplement consists of 12 numbered paragraphs and 4 attached exhibits, marked UU through XX. The Caruso Supplement includes the following:

(i) A declaration that the Caruso Declaration is based on Caruso's "personal knowledge and the books and records of DOI and DOC," unless otherwise noted;
(ii) Specific identification of those parts of the Caruso Declaration that are based on conversations with other DOI or DOC employees; (iii) A declaration that the exhibits marked A through U that are attached to the Caruso Declaration are true and correct copies of those documents; and
(iv) An admission that the Caruso Declaration did not attach certain documents referred to in paragraphs 18, 43-46, 48-49, and 51. Those documents are attached to the Caruso Supplement as exhibits UU through XX.
  DeLarco has also made two declarations. The first declaration (the "DeLarco Declaration") is dated December 11, 2003, and consists of 27 numbered paragraphs and 24 attached exhibits, marked W through TT. The second declaration (the "DeLarco Supplement"), which plaintiffs do not challenge, was made in response to plaintiffs' motion to strike and is dated April 28, 2004. The DeLarco Supplement consists of 6 numbered paragraphs and 1 exhibit, and includes a statement that the exhibits marked W through TT that are attached to the DeLarco Declaration are true and correct copies of those documents.

  Discussion

  Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits in support of a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e) also requires that sworn or certified copies of all papers or parts thereof referenced in the affidavit shall be attached thereto or served therewith.

  Plaintiffs urge the court to disregard defendants' memorandum in opposition to plaintiffs' motion to strike because it was filed more than 10 days after plaintiffs served the motion on defendants. However, by order dated May 28, 2004, the court directed the Clerk to accept defendants' late filing. Therefore, the court will consider defendants' memorandum in opposition.

  Plaintiffs assert nine reasons why certain portions of the Caruso Declaration fail to meet the requirements of Rule 56(e), and should thus be stricken. First, plaintiffs claim that there is no way to determine which parts of the Caruso Declaration are based on personal knowledge as opposed to inadmissible hearsay. However, the Caruso Supplement explicitly states that the entire Caruso Declaration is based on Caruso's personal knowledge and the books and records of the DOI and DOC, unless otherwise noted. The court credits the Caruso Supplement.

  Second, plaintiffs argue that paragraphs 15 and 41 of the Caruso Declaration should be stricken because they are based on inadmissible hearsay. There does not appear to be any dispute that the first portion of paragraph 15 is based on Caruso's personal knowledge. Only the second portion of paragraph 15 is disputed. That portion reads, in relevant part: "It is my understanding, based on conversations with employees of DOC's Trial Division who prosecuted the charges against these 184 individuals, that the lesser penalty of revocation of vacation days or suspension was imposed for those individuals who submitted to DOC documentation demonstrating, among other things, that they were repaying any unpaid taxes and/or had changed their tax documentation to represent their proper tax status. Those employees who refused to submit payments for unpaid taxes or refused to change their tax status were subject to the more severe penalties."

 Plaintiffs argue that both of the above sentences are based on conversations with others, and are therefore inadmissible hearsay. Defendants concede the inadmissibility of the first of the above sentences, but argue that the second sentence, which does not mention any such conversations, is based on caruso's personal knowledge. Indeed, the Caruso Supplement specifically avers that only the first of the above sentences is based on conversations with others. The court therefore will only strike the first of the above sentences from paragraph 15 of the Caruso Declaration.

  The disputed portion of paragraph 41 reads:

"It is my understanding that the Trials Division does not ordinarily conduct an independent investigation into the charges and specifications but rather, relies on the information provided by DOI and/or the IG's office." Plaintiffs claim that this portion of paragraph 41 is based on inadmissible hearsay. However, defendants argue that it is based on Caruso's personal knowledge of the practice of the DOC Trials Division, and is therefore admissible. The sentence does not reference any conversations with third parties. Indeed, on its face the sentence is based solely on Caruso's personal knowledge of the Trial Division practice, and is therefore admissible.
Third, plaintiffs argue that paragraphs 8, 9, 20, and 51 of the Caruso Declaration should be stricken because they are made "on information and belief," and therefore do not meet the personal knowledge requirement of Rule 56(e). Plaintiffs are correct that a statement made on "information and belief" does not meet the personal knowledge requirement of Rule 56(e). See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988). However, there is no need to strike an entire paragraph when only an identifiable portion thereof is made "on information and belief." Therefore, only those sentences of paragraphs 8, 9, 20, and 51 that contain the phrase "upon information and belief" will be stricken.

  Fourth, plaintiffs argue that paragraphs 5, 16-19, 21-24, 26-27, 31, 33, 37, 40, 42-45, 49, and 50-51 of the Caruso Declaration should be stricken because Caruso is not competent to testify about documents allegedly submitted by plaintiffs to the DOC. This is simply wrong. Fifth, plaintiffs argue that all of the exhibits attached to the Caruso and DeLarco Declarations should be stricken because they are not sworn or certified copies of the documents. However, the Caruso and DeLarco Supplements explicitly affirm that those exhibits are true and correct copies of the documents therein. This complies with Rule 56(e).

  Sixth, plaintiffs argue that paragraphs 5, 14, 16-19, 43-46, 48-49, and 51 of the Caruso Declaration should be stricken because they are not supported by sworn or certified copies of the documents. Since the court has decided that the attached exhibits are sworn copies of the documents relied upon in those paragraphs, those paragraphs will not be stricken.

  Seventh, plaintiffs argue that paragraphs 5, 16-20, 23, 27, 29, 31, 33, 38, 40, 42-45, 50, and 51 of the Caruso Declaration should be stricken because they contradict a judicial admission made by defense counsel. Plaintiffs argue that defense counsel made a judicial admission in an October 31, 2002 letter to Magistrate Judge Freeman regarding the discovery process. In that letter, defense counsel wrote that "for purposes of plaintiffs' selective enforcement claim, plaintiff would need to demonstrate that non-African-Americans or non-Moorish Americans who were part of the scope of the investigation were not served with disciplinary charges." A judicial admission is a statement of fact, not a legal argument made to a court. New York State Nat. Organization for Women v. Terry, 159 F.3d 86, 97 n. 7 (2d Cir. 1998). The statement in question is nothing more than defense counsel's theory of the case. Since it is not a judicial admission, the above-listed paragraphs will not be stricken.

   Eighth, plaintiffs argue that paragraphs 8, 9, 10-12, 15, 71, and 72 of the Caruso Declaration should be stricken because they are irrelevant to the issues presented in defendants' motion for summary judgment. But, they are in fact relevant.

   Finally, plaintiffs also assert that the admission into evidence of paragraphs 5, 16-20, 23, 27, 29, 31, 33, 38, 40, 42-45, 50, and 51 of the Caruso Declaration would violate their rights to due process. The essence of plaintiffs' argument appears to be that defendants were required to notify plaintiffs of all the charges against them, as well as an explanation of the evidence against them, before plaintiffs could be terminated by way of a disciplinary proceeding. The court notes that plaintiffs brought a due process claim in their amended complaint, and Judge Schwartz granted defendants summary judgment on that claim on July 9, 2002. Therefore, there is no longer a due process claim in this case. In any event, plaintiffs' argument does not provide any reason for the exclusion of relevant evidence in this case. Plaintiffs' Motion for a Continuance

   Plaintiffs also move for a continuance pursuant to Fed.R. Civ. P. 56(f). Rule 56(f) provides that the court, when presented with a motion for summary judgment, may order a continuance to permit depositions to be taken or discovery to be had. Such a continuance may issue only if the party opposing summary judgment shows by affidavit that facts essential to its opposition cannot yet be presented. Such an affidavit must describe (i) what facts are sought and how they are to be obtained; (ii) how the facts sought are reasonably expected to create a genuine issue of material fact; (iii) the efforts the affiant has made to obtain those facts; and, (iv) why those efforts were unsuccessful. Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). Even where a Rule 56(f) motion is properly supported, the court may decline to order a continuance for further discovery if it deems the requested discovery to be speculative or cumulative. Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994).

   Irene Thomas, counsel for plaintiffs, has submitted an affidavit dated March 15, 2004 in support of plaintiffs' motion for a continuance. In that affidavit, Thomas alleges three areas where further discovery is needed.

   First, Thomas states that defendants have failed to comply with an order by Magistrate Judge Freeman dated March 7, 2003 requiring them to produce approximately 6,000 additional documents that were part of an "investigatory file." Those documents, along with others sought by plaintiffs, were to be produced on a rolling basis. Defendants had not produced those documents when this court closed discovery on May 23, 2003. Thomas admits, however, that defendants did produce between 50,000 and 60,000 documents. Although Thomas claims that the additional documents are reasonably expected to create a genuine issue of material fact as to whether defendants instituted a municipal policy or practice of discriminating against adherents of the Moorish-American religion, it is not clear what facts Thomas reasonably expects to learn from the requested documents. In a letter to the court dated July 18, 2003, Thomas wrote that the additional documents were necessary to determine "the precise individuals involved in the scope of the investigation and the information obtained during the investigation." Defendants responded, in a letter to the court dated July 28, 2003, that they had produced the name, race, and individual investigative file of each corrections officer investigated by the DOC. Thomas does not dispute defendants' position in her March 15 affidavit. Therefore, the court finds that (i) Thomas has failed to specify the facts expected to be learned from the requested discovery, and (ii) the requested discovery is both speculative and cumulative. Second, Thomas requests a continuance in order to conduct four depositions. Plaintiffs seek to depose defendant Michael Caruso, defendant Bernard Kerik, Nicholas Kaiser, and David Klopman. The court will address each individual in turn. Thomas states that plaintiffs seek to depose Caruso in order to "determine the exact nature of his knowledge about Moorish Americans." Plaintiffs have already deposed Caruso once in this case, and Thomas deposed Caruso a second time in the case Bolden v. City of New York, 02 Civ. 1608 (RB), which arises out of the same facts. Indeed, plaintiffs have submitted portions of Caruso's testimony from his deposition in the Bolden case as part of their opposition to defendants' motion for summary judgment. The court also notes that plaintiffs are in possession of Caruso's deposition testimony in Lambert v. Kerik, 00 Civ. 4466 (BSJ), another case arising out of the same facts. Plaintiffs have not shown any valid reason for a further deposition of Caruso.

   Thomas states that plaintiffs seek to depose Kerik in order to determine whether there was a municipal policy or practice of discrimination against plaintiffs. Defendants moved to quash any deposition of Kerik, and that motion had not been decided when discovery closed. Kerik submitted a sworn declaration, dated March 25, 2003, in which he states that he has no particular, first-hand knowledge of the facts and circumstances surrounding plaintiffs' terminations, and that he relied entirely on the report and recommendation of the administrative law judge. Plaintiffs have not shown that a Kerik deposition will add to the information now on the record.

   Finally, Thomas states that the plaintiffs seek to depose Nicholas Kaiser and David Klopman. Kaiser and Klopman are former DOC attorneys who were involved in the investigation of and disciplinary proceedings against the plaintiffs. Thomas alleges that deposing Kaiser and Klopman would reveal facts indicating that the DOC discriminated against plaintiffs and denied them due process. To the extent these depositions bear on any due process claims, they are clearly unnecessary, since no due process claims remain in this case. Moreover, ten depositions have already been conducted in this case, not including depositions in other related cases to which plaintiffs have access. Most importantly, plaintiffs have already deposed Martha Hernandez, the DOC attorney in charge of the investigation and prosecution of plaintiffs. To the extent that plaintiffs argue that the depositions of Kaiser and Klopman will reveal facts supporting their equal protection claims, the court finds that those depositions would be cumulative.

   The court will not grant a continuance allowing plaintiffs to conduct the requested depositions.

   Third, Thomas claims that a continuance is needed to allow time for plaintiffs to move to compel defendants to answer plaintiffs' first request for admissions and plaintiffs' interrogatories. Thomas does not argue that defendants refused to answer plaintiffs' interrogatories or requests for admission. Rather, Thomas apparently believes that defendants' objections to portions of those documents were improper. However, Thomas has not specified which admissions or interrogatories she wants defendants to answer, and does not allege that such answers are reasonably expected to create a genuine issue of material fact. Since Thomas has not shown how the motions to compel would enable her clients to obtain necessary facts in opposition to defendants' motion for summary judgment, the court will not grant a continuance.

   CONCLUSION

   Plaintiffs' motion to strike is granted in part and denied in part. Plaintiffs' motion for a continuance is denied.

   Defendants' motion for summary judgment is granted.

  

SO ORDERED. [Page 789, ]
20050907

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