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Children First Foundation, Inc. v. Martinez

January 8, 2008

THE CHILDREN FIRST FOUNDATION, INC., A NEW YORK NON-PROFIT ORGANIZATION, PLAINTIFF,
v.
RAYMOND P. MARTINEZ, INDIVIDUALLY; DAVID J. SWARTZ, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK DEPARTMENT OF MOTOR VEHICLE; JILL A. DUNN, INDIVIDUALLY; COMMISSIONER AND COUNSEL FOR THE NEW YORK DEPARTMENT OF MOTOR VEHICLES; GEORGE E. PATAKI, INDIVIDUALLY, AND ELIOT SPITIZER, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK, DEFENDANTS.



RNEAL SCHOEN, in his official capacity as Deputy

RANDOLPH F. TREECE United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Presently before this Court is Defendant Dunn's Motion to Compel responses to limited interrogatories and production of documents which were served upon Children First Foundation (CFF). Dkt. No. 88, Dunn's Mot. to Compel, dated Apr. 13, 2007. CFF opposes Dunn's Motion to Compel. Dkt. No. 97. After seeking the Court's permission, Dunn was permitted to file a Reply to CFF's Opposition, Dkt. No. 103, and CFF was permitted to file a Sur-Reply, Dkt. No. 110. For the reasons to follow, Dunn's Motion to Compel is denied.

I. BACKGROUND

To truly appreciate the nuance of this Motion and the Opposition thereto, we must harken back to June 5, 2006, when the Uniform Pretrial Scheduling Order (UPTSO) was issued. Dkt. No. 45. The UPTSO, inter alia, set the discovery deadline as February 28, 2007. Id. We must remain mindful that during this discovery period the Attorney General's Office represented all of the Defendants and accordingly pursued discovery on their behalf. As the case drew nearer to the discovery deadline, the parties submitted a stipulation asking this Court to grant a stay pending a decision on the parties' respective motions for summary judgment on the issue of liability. Essentially, the parties were seeking only a stay of disclosures regarding the issue of damages. Dkt. No. 53, Stip., dated Dec. 29, 2006. It would appear then, with the exception of depositions, discovery as to liability was nearly completely explored. The Court stayed the discovery of damages and further directed that the parties complete liability discovery by February 28, 2007. Dkt. No. 56, R Order, dated Jan. 5, 2007. FT

Eventually, on January 26, 2007, this Court was alerted that depositions had come to a standstill as Defendant Dunn refused to appear for her scheduled deposition since she was retaining private counsel. Dkt. No. 57, Pl.'s Lt. Primarily due to the change in legal representation and the difficulties in coordinating twelve depositions, a joint application was made to extend the discovery deadline to May 31, 2007. Dkt. No. 60, Joint Lt.-Mot, dated Feb. 22, 2007. On this same day, Dunn's new counsel filed a Notice of Appearance. Dkt. No. 61. Accordingly, based upon the Joint Request, the Court extended the discovery deadline until May 31, 2007, "only for the purpose of permitting depositions."*fn1 Dkt. No. 62, Text Order, dated Feb. 23, 2007.

Dunn then made another appeal to the Court to reconsider our previous Order and permit a few "discreet, but important" documentary disclosures as well as grant her an opportunity to amend her Answer to clearly assert certain personal defenses that had not been pled when she was represented by the Attorney General's Office. Dkt. Nos. 63 & 64, Dunn's Lt.-Mot., dated Feb. 27, 2007. On March 7, 2007, the Court held a telephone conference, on the record, to hear Dunn's entreaties. After the conference, an Order was issued granting, inter alia, Dunn permission (1) to file a motion to amend her Answer and (2) to serve one last round of Demands for Interrogatories and Production which address solely the First Amendment. Dkt. No. 66, Text Order, dated Mar. 7, 2007.*fn2 Dunn served her Demands for Interrogatories and Production immediately after the March 7th Order and CFF responded promptly; one month later on April 13, 2007, the Motion to Compel was filed. See Dkt. Nos. 88-5 (Ex. C), Dunn's Demands, dated Mar. 13, 2007, & 88-6 (Ex. D), R CFF's Responses.

A relevant correlation to Dunn's Motion to Compel is her Motion to Amend her Answer to assert the defenses of government speech doctrine and the Establishment Clause neutrality defense. Dkt. No. 67.*fn3 As will be discussed further, it was the proposed defense of the Establishment Clause that begged the question as to granting further, yet limited discovery, at a point in time when, essentially, all other paper disclosure was foreclosed. In persuading the Court to grant Dunn permission to file a Motion to Amend, it was represented that an amended answer would "implicate defenses under the establishment clause[,] and we would like to see those defenses more clearly articulated in the answer and that defense . . . would also be the focus of some discrete discovery demands[.]" Dkt. No. 125, Tel. Conf. Transcript (hereinafter "Tr."), dated Mar. 7, 2007, at p. 5; see also Dkt. No. 66 (Order granting Dunn permission to file a Motion to Amend her answer). That Motion to Amend was filed on March 22, 2002, Dkt. No. 67, and we rendered a Memorandum-Decision and Order (MDO) granting in part and denying in part the Motion to Amend on August 3, 2007, Dkt. No. 128. This MDO was appealed. See Dkt. Nos. 130 & 131. Recently, on December 27, 2007, the Honorable Neal P. McCurn, Senior United States District Judge, rendered a Memorandum-Decision and Order (MDO) reversing this Court's MDO on Dunn's Motion to Amend. Dkt. No. 160.

R Succinctly, where this Court had found Dunn's proposed defense of government speech doctrine futile and granted her permission to amend her Answer to add only the Establishment Clause neutrality defense, Judge McCurn, for the reasons stated in his MDO, conducted a de novo review of our MDO and reinstated Dunn's government speech doctrine defense but denied her the right to amend her Answer to include an Establishment Clause neutrality defense. In denying Dunn the right to include the Establishment Clause neutrality defense in her Answer, Judge McCurn respectfully disagreed with this Court's assessment "that the 'Choose Life' message could have a religious message" and that "[t]here is substance to the argument that 'Choose Life,' as a pro-life affirming tenet, in material respects, transmits a religious message." See Dkt. No. 128, Treece MDO at pp. 30 & 31; Dkt. No. 16, McCurn MDO at p. 23. Judge McCurn's disagreement with this Court's finding that "Choose Life," a pro-life affirming tenet, as being particularly religious vernacular was clearly stated as follows:

Contrary to blatantly religious symbols such as a crucifix or menorah, or to obviously religious messages, such as well-known passages cited from the Bible or Koran, the above described proposed Picture Plate with the phrase "Choose Life," while possibly evoking the pro-life versus pro-choice abortion debate, is more aptly described as political, rather than religious, speech.

Dkt. No. 160 at p. 24.

It may very well be true that those who participate in the abortion debate on the pro-life side are members of religious organizations whose religious beliefs form the basis for their views. However, that does not transform the pro-life stance into one that is religious in nature, nor does it transform the phrase, "Choose Life" into religious speech.

Id.

Considering that the phrase, "Choose Life" is more "arguably non-religious" than religious, for Establishment Clause purposes, the court's conclusion should weigh on the less expansive side.

Id. at p. 25.

****

Thus, in the final analysis, Judge McCurn concluded "that analysis of government endorsement under the Establishment Clause is unnecessary, rendering Dunn's proposed Establishment Clause neutrality defense futile." Id. (citation omitted). Upon finding the defense futile and consequentially denying its inclusion in ...


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