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In re Nassau County Strip Search Cases

United States District Court, E.D. New York

April 11, 2014

In re NASSAU COUNTY STRIP SEARCH S

          For Plaintiffs: Herbst Law PLLC, Robert L. Herbst, Esq., Giskan Solotaroff Anderson & Stewart LLP, Iliana Konidaris, Esq., Beldock Levine & Hoffman LLP, Jonathan C. Moore, Esq., Emery Celli Brinckerhoff & Abady LLP, Matthew D. Brinckerhoff, Esq., Wolf Haldenstein Adler Freeman & Herz, LLP, Jeffrey G. Smith, Esq., Cuti Hecker Wang LLP, Mariann Meier Wang, Esq., Law Offices of Martin E. Restituyo Esq., Martin E. Restituyo, Esq.

          For Defendants: Nassau County Attorney's Office Carnell T. Foskey County Attorney, Liora M. Ben-Sorek, Esq., Robert F. Van der Waag, Esq.

          MEMORANDUM & ORDER

          DENIS R. HURLEY, UNITED STATES DISTRICT JUDGE

         The purpose of this Memorandum and Order is to address and, to the extent necessary, resolve the issues raised in the plaintiffs’ July 8, 2016 letter. By way of format, the subjects will be discussed sequentially under the captions utilized by plaintiffs.

Deadline by Which the County Must Deposit the Amount of the Judgment into Court

         In the Court’s final judgment, defendants were directed “to deposit into Court the sum of $11, 508, 000 within 30 days.” (Apr. 11, 2014 Final Judgment at 2.) Stays were thereafter put in place pending appeal.

         The Second Circuit affirmed the final judgment with its mandate being issued on June 16, 2016. As a result, the deposit into Court was to be made by July 16, 2016. Plaintiffs reminded defendants of this obligation by, inter alia, a letter dated June 17th. Hearing nothing in response, plaintiffs provided the Court with a status report via their July 8th letter and an implicit request for the Court’s assistance as to this - should such prove to be necessary - and some other “loose ends” discussed infra.

[T]he County, subsequent to this Court’s [April 11, 2014] Judgment, had the County Legislature approve the full amount of the Judgment; and, approved the issuance of any and all bonds to pay the Judgment, if necessary. Further, the County now has a Litigation Fund sufficient to pay these amounts. Incidentally, these developments are the elements which the County did not have in place when it first asked this Court to dispense with any deposit or bond posting.
Accordingly, the County is ready, willing and able to pay any amount of that judgment into Court or a bank, if required. However, the County requests that this Court modify its initial directive since it is no longer necessary. It is respectfully requested that the County, if this Court directs, will deposit Five Million ($5, 000, 000.00) Dollars into a Special Revenue Account which would be a segregated account earmarked, and to be used solely, for this litigation. As any further money is needed beyond that amount, the County can and will make those payments from its Litigation Fund. This is especially appropriate in the instant case since we will not know what claims will be submitted to the Administrator and their amounts. Again, the timeframe for the claims to be filed will not even expire for almost two years (February, 2018).

(Defs.’ July 13, 2016 Letter at 2.)

         The Court, like plaintiffs, is “glad to hear that County is able to comply with [the] July 16 deadline to pay the amount of the Final Judgment into Court in compliance with the 30-day period in the Final Judgment.” (Pls.’ July 13, 2016 Letter at 1.) Defendants’ concomitant request that its payment provisions be restructured in the manner suggested is rejected for several reasons including:

         (1) the April 11, 2014 Judgment, including the appeal therefrom, represents the law of the case, and defendants have proffered no convincing reason to disturb the Court’s earlier directive, see Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)(“The mandate rule prevents re-litigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly decided by the appellate court’s mandate.”);

         (2) to the extent the County may be concerned about the interest earned on the deposited money prior to its disbursement, the $11, 508, 000 shall be deposited by the Clerk of Court into an interest bearing account with the interest earned inuring to the benefit of the County;

         (3) the County’s apparent suggestion that the $5, 000, 000 it proposes be deposited into a “Special Revenue Account” may ultimately prove to be sufficient to satisfy the defendants’ payment obligations seems unrealistic given that there is already a charge of over $4, 000, 000 against the judgment. (See Defs.’ July 13, 2016 Letter at 2; Apr. 11, 2014 Final Judgment at 3-4 (“. . . in accordance with the Memorandum and Order dated April 7, 2014, class counsel are awarded attorneys’ fees of $3, 836, 000, and expenses of $182, 030, 25, to be paid first from the Common Fund and then by defendants if, after the claims period ends, there is insufficient money in the common fund to pay all class ...


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