Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00617-LTB-BNB

Document 69-2

Filed 09/09/2005

Page 1 of 4

PolyRock Technologies, LLC, v. General Steel Domestic Sales, LLC, et al.

EXHIBIT 1 to P A N IFS P O II NT L I TF ' O P STO O DEFENDANTS GENERAL STEEL DOMESTIC SALES, LLC, GENSTONE ENTERPRISES, LLC AND JEFF KNIGHT MOTION TO STRIKE PARAGRAPHS 5 AND 53 OF PLAINTIFSS C N A N E C MP A N F ' E O D ME D D O L I T

Murphy v. Arlington Cent. School Dist., 2000 WL 511564 (S.D.N.Y. April 27, 2000)

EXHIBIT 1 04-cv-617-LTB-BNB

Case 1:04-cv-00617-LTB-BNB

Document 69-2

Filed 09/09/2005

Page 2 of 4

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2000 WL 511564 (S.D.N.Y.) (Cite as: Not Reported in F.Supp.2d)

Page 1

Not Reported in F.Supp.2d, 2000 WL 511564 (S.D.N.Y.) Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court, S.D. New York. Pearl MURPHY and Theodore Murphy, Plaintiffs, v. ARLINGTON CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendant. No. 99 Civ. 9294 CSH. April 27, 2000.

tuition at Kildonan for the remainder of his education. However, until a new placement is established by either an actual agreement between the parents and the District, or by an administrative decision upholding the District's proposed placement which Plaintiffs choose not to appeal, or by a court, the District remains financially liable. Id. at 366 (emphasis added). The March 1 Opinion concluded that " Kildonan is Joseph's current educational placement. Accordingly, the District is financially responsible for Joseph's tuition beginning from the effective date of the SRO decision, September 17, 1999, and going forward." 86 F.Supp.2d at 368. To implement that Opinion, the March 1 Order provided: Therefore, the District is directed to reimburse Plaintiffs for Joseph's tuition covering the period September 17, 1999 to date. That reimbursement is to be made within twenty (20) days of the date of this Opinion and Order. The District is further directed to continue to fund Joseph's tuition as long as Kildonan remains Joseph's current educational placement. Id. The March 1 Order directed the District to reimburse Plaintiffs for Joseph's 1999-2000 tuition at Kildonan not later than March 21, 2000. That date has come and gone. The District has not made the reimbursement called for by the March 1 Order. Following entry of the March 1 Opinion and Order, the District has taken two steps but failed to take a third. On March 23, 2000, the District filed in the United States Court of Appeals for the Second Circuit a notice of appeal from this Court's March 1 Opinion and Order. On April 14, 2000 (the last available day), the District filed in the Supreme Court of the State of New York, Dutchess County, an Article 78 proceeding appealing the SRO's decision. But the District has failed to seek a stay of this Court's March 1 Order pursuant to Rule 8(a), Fed. R.App. P. *2 Plaintiffs have written a letter to this Court dated April 12, 2000, seeking an " order to compel pendency payment during the 1999-2000 school year"by the District. Plaintiffs were aware of the District's notice of appeal to the Second Circuit, but the District did not file its Article 78 proceeding in

MEMORANDUM OPINION AND ORDER HAIGHT, Senior J. *1 The most recent submissions from the pro se Plaintiffs and Defendant Arlington Central School District Board of Education (" District" focus the ) upon the District's non-compliance with the Court's Memorandum Opinion and Order dated March 1, 2000, reported at 86 F.Supp.2d 354 (S.D.N.Y.2000) (" March 1 Opinion"and " March 1 Order" the the ). Familiarity with that opinion and all prior opinions of the Court is assumed. The March 1 Opinion was written in the aftermath of the decision of the State Review Officer (" SRO" ), rendered on December 14, 1999 and effective for tuition purposes as of September 17, 1999, see 86 F.Supp.2d at 367. The SRO concluded that " the District had not met its burden to demonstrate that the IEP proposed for the 1998-1999 school year was properly tailored to meet Joseph's needs, and that the services provided by Kildonan were appropriate. Accordingly, the SRO upheld the IHO's award of tuition reimbursement ."86 F.Supp.2d at 356. The March 1 Opinion also observed that the parties " have four months from the date of the SRO decision, that is until April 14, 2000, within which to bring an appeal ... to any state or federal court of competent jurisdiction."Id. at 356 n.1. Construing the relevant statutes and regulations, the March 1 Opinion further held that " once the SRO rendered its decision, there was an ` agreement' changing Joseph's pendent placement to Kildonan. From that day forward, the District is responsible for maintaining that placement.... This does not mean that the District must fund Joseph's

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:04-cv-00617-LTB-BNB

Document 69-2

Filed 09/09/2005

Page 3 of 4

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2000 WL 511564 (S.D.N.Y.) (Cite as: Not Reported in F.Supp.2d) the state court until two days later. Reading these pro se Plaintiffs' April 12, 2000 submission with the requisite lenity, I construe it as a motion to hold the District in contempt for failing to comply with the March 1 Order. Counsel for the District have written to the Court a letter dated April 17, 2000. That letter reads in part: Since the pendency analysis contained in this Court's March 1, 2000 Memorandum Opinion and Order ultimately turns on the validity of the State Review Officer's decision concerning the 1998/99 school year, an Order of this Court compelling payment by the School District is premature pending the outcome of the School District's state court appeal. Should it be the Court's opinion that the pending state court action is insufficient to stay the March 1, 2000 Memorandum Opinion and Order, the School District respectfully requests that the Court notify the parties of such opinion, whereupon the School District will immediately file an application for a stay of the Court's March 1, 2000 Opinion and Order pursuant to Rule 8(a) of the Federal Rules of Appellate Procedure. This Opinion considers the parties' rights and obligations in light of these most recent developments and submissions.

Page 2

to stay"the March 1 Order. The only way to stay a federal district court's order pending appeal is to apply for a stay under Rule 8(a), first to the district court and, if refused there, to the Court of Appeals. As noted, the District did file a timely notice of appeal to the Second Circuit. But that notice did not operate to stay the March 1 Order. " mere filing The of an appeal does not act to suspend execution or enforcement of a judgment or injunction; a stay must be applied for and granted.... If the judgment grants an injunction, the injunction is effective unless stayed." Moore's Federal Practice (3d ed.1997), § 20 308-2 at 308-7-8. The March 1 Order is an injunction directing the District to make certain payments. The District does not argue that filing the notice of appeal stayed the order; nor, given this familiar principle, could it have done so. But the filing of an appeal from a state agency decision in a state court fares no better in suspending the execution or enforcement of an order of a federal court; indeed, that proposition follows a fortiori.

III. *3 Perhaps anticipating the conclusion reached in Part II, the District's April 17 letter declares its intention to apply for a stay under Rule 8(a) in case of need. That intention gives rise to one procedural and several substantive questions. Procedurally, it is well recognized that a district court may grant a brief stay of a preliminary injunction in an appropriate case to permit the Court of Appeals an opportunity to consider an application for a stay pending an expedited appeal. Such brief stays for a matter of days are frequently issued when a district court denies an open-ended stay pending appeal. They give the appellate court an opportunity to decide whether an additional stay and an expedited appeal should be granted. Rodriguez v. DeBuono, 175 F.3d 227, 235-36 (2d Cir.1999). That procedure is useful in cases where, absent a stay, the district court's injunctive order takes place immediately. However, the March 1 Order was not a preliminary injunction pendente lite, contemplating the development of a further factual record by plenary trial or otherwise. Rather, the March 1 Order has the characteristics of a permanent injunction; it was based upon this Court's interpretation of the statutory and regulatory scheme against a background of undisputed facts, and enjoined the District to make a specific payment in

II. The District's April 17, 2000 letter is disingenuous. There is no basis for contending that this Court's March 1 reimbursement Order was " premature." The District did not move for reconsideration on that point; it simply let the time for compliance pass. The quoted language from the March 1 Opinion made it crystal clear that, in this Court's view, under the statutory and regulatory scheme the SRO's decision in plaintiffs' favor triggered the District's obligation to fund the Kildanon tuition, which obligation continues unless and until the District persuades a court to reverse the SRO. The March 1 Order directed the District to reimburse Plaintiffs for the 1999/2000 tuition not later than March 21, and to fund subsequent tuition so long as Kildonan remained its designation as Joseph' appropriate placement. The District is entitled to disagree with that Opinion and Order, but its remedy is an appeal to the Second Circuit. There is no validity whatsover to the District's suggestions that the unambiguous March 1 Order of this federal court " premature pending the is outcome of the School District's state court appeal," or that " pending state court action is " ]sufficient the [

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:04-cv-00617-LTB-BNB

Document 69-2

Filed 09/09/2005

Page 4 of 4

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2000 WL 511564 (S.D.N.Y.) (Cite as: Not Reported in F.Supp.2d) futuro, namely, on March 21. That date having passed without the District either making the payment or applying to stay the Order, the threshold question arises whether the District has waived the right to apply for a stay. The District must address that question in the brief supporting its application. As to the substantive issues: assuming without deciding that the District is able at this time to apply for a stay of the March 1 Order pending appeal, its entitlement to that relief depends upon its ability to make the showings required by Second Circuit case law. The standards in this circuit for a stay or injunction pending appeal are (1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that may be affected. LaRouche v. Kezer, 20 F.3d 68, 72 (2d Cir.1994) (internal quotation marks and citation omitted). See also In re the Seizure of All Funds in the Names Registry Publishing, Inc., 58 F.3d 855, 856 (2d Cir.1995) (citing and applying the standards described in Larouche v. Kezer and denying stay). The papers supporting the District's motion for a stay must comply with the specific requirements of Rule 8(a). As the Rule provides, if the facts pertinent to the granting or denial of a stay are in dispute, the District may submit affidavits. This Opinion intimates no view on whether or not a stay should be granted. I raise but do not presently address the question whether any stay the District may obtain should be " upon such terms as to bond or otherwise as [the court] considers proper for the security of the rights of the adverse party." its motion papers the District In must describe the availability of funds in its current budget or otherwise to make the reimbursement payment if a stay is denied.

Page 3

of Appeals, the District will be obligated to reimburse Plaintiffs for the 1999/2000 tuition forthwith, and should it fail to do so, a daily fine payable to Plaintiffs to coerce compliance with the March 1 Order may be an appropriate remedy for contempt. If a stay is granted, the question remains whether Plaintiffs are entitled at this time to a more limited remedy in contempt, such as interest on the amount of tuition they have paid between March 21, 2000 and the date a stay is granted. This Opinion raises those questions but does not undertake to answer them.

V. As the District's April 17 letter recognizes, in these circumstances any application for a stay must be made promptly. The District is directed to file and serve papers consistent with this Opinion on or before May 5, 2000. Plaintiffs may file and serve answering papers on or before May 15, 2000. If so advised, the District may file and serve reply papers not later than May 22, 2000. The Court does not presently contemplate hearing oral argument. If that changes, the parties will be advised. The foregoing is SO ORDERED. S.D.N.Y.,2000. Murphy v. Arlington Cent. School Dist. Bd. of Educ. Not Reported in F.Supp.2d, 2000 WL 511564 (S.D.N.Y.) Briefs and Other Related Documents (Back to top) · 1:99cv09294 (Docket) (Aug. 30, 1999) END OF DOCUMENT

IV. *4 Decision on Plaintiffs' cross-motion to hold the District in contempt for failure to comply with the March 1 Order is reserved pending resolution of the District's anticipated motion for a stay. If a stay is refused by both this Court and the Court © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.