Case: Berg v. Kelly

1:12-cv-03391 | U.S. District Court for the Southern District of New York

Filed Date: April 30, 2012

Closed Date: April 22, 2019

Clearinghouse coding complete

Case Summary

On Apr. 30, 2012, five members of the Occupy Wall Street movement filed this lawsuit in the United States District Court for the Southern District of New York, against the City of New York and individual New York City Police Department officers. The plaintiffs, represented by private counsel, sought class certification, as well as injunctive and declaratory relief under 42 U.S.C. § 1983, alleging that officers of the NYPD violated their rights under the First, Fourth, and Fourteenth Amendments …

On Apr. 30, 2012, five members of the Occupy Wall Street movement filed this lawsuit in the United States District Court for the Southern District of New York, against the City of New York and individual New York City Police Department officers. The plaintiffs, represented by private counsel, sought class certification, as well as injunctive and declaratory relief under 42 U.S.C. § 1983, alleging that officers of the NYPD violated their rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, as well as their rights under the Constitution of the State of New York. Specifically, the plaintiffs alleged that they were unlawfully detained by NYPD officers during an Occupy Wall Street demonstration held in New York City on Nov. 8, 2011.

The plaintiffs' claims arose from the NYPD's usage of barricades during the demonstration, when protesters gathered in Bryant Park. Their plan was to march toward a fundraising event attended by President Obama at the Sheraton Hotel and protest outside of the hotel. The plaintiffs alleged that they were illegally confined in a closed pen formed by police-erected barricades for nearly two hours. The plaintiffs alleged that they repeatedly asked to leave the enclosure, but the officers refused and threatened to arrest anyone who tried to leave, while tourists and journalists were permitted to leave the barricaded area. The plaintiffs were never arrested nor charged with any violation, misdemeanor, or crime.

The plaintiffs alleged that this conduct amounted to false arrest, and violated their First Amendment rights to freedom of speech, association, and assembly, as well as their Fourth Amendment right to be free from unreasonable seizures. The plaintiffs also alleged that the defendants subjected them to selective enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment. Furthermore, the plaintiffs claimed that the other NYPD officers had an affirmative duty to assess the constitutionality of their actions, and that their failure to intervene amounted to a separate and distinct violation of plaintiffs' constitutional rights.

The plaintiffs argued that the NYPD's conduct violated a Stipulation of Settlement and Order in another Southern District of New York case, Stauber v. City of New York, 1:03-cv-9163. That settlement amended Section 213-11, 21(h)(3) of the New York Police Department Patrol Guide to state the following:

Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.

In their complaint, the plaintiffs asked the court to issue an order compelling the NYPD to comply with this section.

On Mar. 6, 2013, the defendants filed a motion to dismiss for (1) failure to state a claim and (2) failure to fulfill conditions precedent to filing suit. The defendants argued that the barricades amounted to a reasonable time, place, manner restriction under the First Amendment, and that the need to ensure the President's security rendered the plaintiffs' Fourth Amendment claim non-actionable. The defendants also pointed to New York General Municipal Law § 50-i(1), which sets forth certain procedures for suing the City. The defendants claimed that plaintiffs' had failed to comply with § 50-i(1), and that their claims were therefore barred.

On Nov. 21, 2013, District Judge Thomas P. Griesa for the United States District Court for the Southern District of New York denied the defendants' motion for judgment on the pleadings. Judge Griesa acknowledged that although it was "a close question as to whether [the complaint] states a valid cause of action for violation of constitutional rights . . . [t]he court believes that it is not appropriate at this stage to rule on the merits of the case." Berg v. Kelly, 12-cv-03391 TPG, 2013 WL 6153253, at *2 (S.D.N.Y. Nov. 22, 2013). However, the court noted that "a summary judgment motion, or cross-summary judgment motions, may be appropriate in order to avoid a drawn-out litigation with full discovery and trial." Id.

On Dec. 18, 2015, the plaintiffs filed an amended complaint. On Jan. 21, 2016, the defendants moved for summary judgment on all claims.

On Aug. 10, 2016, the district court granted in part and denied in part the defendants' motion for summary judgment. The court denied the defendants' summary judgment motion with respect to the Fourth Amendment false-arrest claim, the First Amendment retaliation claim, the Fourteenth Amendment selective-enforcement claim, and the failure-to-intervene claim, finding that genuine issues of material fact existed. The court also found that the defendants had failed to show that they were entitled to qualified immunity. The court granted the motion to dismiss with respect to the plaintiffs' § 1983 claims against the Commissioner of the NYPD and the Chief of Department of the NYPD, finding that they failed for lack of sufficient involvement in the alleged constitutional violations, as neither defendant was at the scene was at the scene of the protest. The court also dismissed the state constitutional claims, because as the plaintiffs had alternate remedies available under a federal statute such as § 1983, their state constitutional tort claims were "redundant and precluded" under Biswas v. City of New York, 973 F. Supp. 2d 504, 522 (S.D.N.Y. 2013).

On Sept. 9, 2016, the defendants appealed to the U.S. Court of Appeals for the Second Circuit, from the district court's opinion dated Aug. 10, 2016. The case was assigned Docket No. 16-3146. On Nov. 18, 2016, several of the plaintiffs-appellees moved to dismiss the appeal for lack of jurisdiction, but the Sixth Circuit denied the motion on Jan. 11, 2017. A Second Circuit panel of Judges Reena Raggi, Susan Carney, and Peter Hall ruled on the appeal on July 25, 2018 (897 F.3d 99). They noted that the officers did have a special need that could exempt them from the Fourth Amendment's probable cause requirement--the need to protect the President--but found that the ensuing detention procedure did not balance the competing interests of protecting the President, since the protesters were not allowed to leave at all while non-protesters successfully left the area in small groups without incident. However, they overturned the District Court's analysis that the officers were not entitled to qualified immunity because there was a question of material fact as to the mental state of the officers erecting the barricades. They stated that qualified immunity is analyzed through the lens of a reasonable officer, not the mental state of the officer at issue, and found that a reasonable officer protecting the President could think that this detention strategy did not violate any Constitutional rights. With this grant of qualified immunity, all the Constitutional complaints were invalidated, and the Second Circuit recommended that the District Court dismiss the case with prejudice.

District Court Judge Lewis A. Kaplan, assigned to the case since 2018, took up the Second Circuit's recommendation and declined to reargue the case on April 22, 2019. The decision to decline to reargue was based on a November 30, 2018 recommendation from Magistrate Judge Gabriel Gorenstein (343 F.Supp.3d 419). In the same order, he noted that all claims were now dismissed, and ordered the plaintiffs to pay attorney's fees. The case is closed.

Summary Authors

Greg in den Berken (7/21/2014)

Elizabeth Greiter (3/20/2018)

Ellen Aldin (5/29/2020)

Related Cases

Stauber v. City of New York, Southern District of New York (2003)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4350542/parties/berg-v-kelly/


Judge(s)

Gorenstein, Gabriel W. (New York)

Griesa, Thomas Poole (New York)

Hall, Peter W. (Vermont)

Kaplan, Lewis A. (New York)

Attorneys(s) for Plaintiff

Borchetta, Jennifer Rolnick (New York)

Moore, Jonathan C. (New York)

Moskovitz, Joshua Samuel (New York)

Rankin, David Bruce (New York)

Attorneys(s) for Defendant

Anakhu, Joy Tolulope (New York)

Goykadosh, Brachah (New York)

Judge(s)

Gorenstein, Gabriel W. (New York)

Griesa, Thomas Poole (New York)

Hall, Peter W. (Vermont)

Kaplan, Lewis A. (New York)

Attorneys(s) for Plaintiff

Borchetta, Jennifer Rolnick (New York)

Moore, Jonathan C. (New York)

Moskovitz, Joshua Samuel (New York)

Rankin, David Bruce (New York)

Attorneys(s) for Defendant

Anakhu, Joy Tolulope (New York)

Goykadosh, Brachah (New York)

Lucas, Andrew Joseph (New York)

Robinson, Amy (New York)

Weiss, Dara Lynn (New York)

Documents in the Clearinghouse

Document

Docket [PACER]

June 6, 2019 Docket
1

Class Action Complaint

April 30, 2012 Complaint
62

Opinion [Denying Motion to Dismiss]

2013 WL 6153253

Nov. 21, 2013 Order/Opinion
86

Class Action Amended Complaint

Dec. 18, 2015 Complaint
116

Opinion

Berg vs. Kelly

2016 WL 4257525

Aug. 10, 2016 Order/Opinion
134

Opinion

U. S. Court of Appeals for the Second Circuit

897 F.3d 99

July 25, 2018 Order/Opinion
144

Report and Recommendation

343 F.Supp.3d 419

Nov. 30, 2018 Magistrate Report/Recommendation

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4350542/berg-v-kelly/

Last updated May 11, 2022, 8 p.m.

ECF Number Description Date Link
1

COMPLAINT against Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, John Does 1-10(Individually, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), John Does 1-10(In official capacity, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Filing Fee $ 350.00, Receipt Number 465401036730)Document filed by Dayna Rozental, Phoebe Berg, Toshiro Kida, Jonathan Jetter, John Rivera.(rdz) (Entered: 05/02/2012)

April 30, 2012 RECAP

Summons Issued

April 30, 2012 PACER

Case Designation

April 30, 2012 PACER

Case Designated ECF

April 30, 2012 PACER

SUMMONS ISSUED as to All Defendants. (rdz)

April 30, 2012 PACER

Magistrate Judge Gabriel W. Gorenstein is so designated. (rdz)

April 30, 2012 PACER

Case Designated ECF. (rdz)

April 30, 2012 PACER
2

AFFIDAVIT OF SERVICE. Raymond Kelly served on 4/30/2012, answer due 5/21/2012. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
3

AFFIDAVIT OF SERVICE. Joseph Esposito served on 4/30/2012, answer due 5/21/2012. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
4

AFFIDAVIT OF SERVICE. Yesenia Ayala served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
5

AFFIDAVIT OF SERVICE. Cynthia Boyle served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
6

AFFIDAVIT OF SERVICE. Stephen Carolan served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
7

AFFIDAVIT OF SERVICE. Michael Casale served on 5/7/2012, answer due 5/29/2012. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
8

AFFIDAVIT OF SERVICE. Francisco Costa served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
9

AFFIDAVIT OF SERVICE. Jesse Cotton served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
10

AFFIDAVIT OF SERVICE. Joseph Diaz served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
11

AFFIDAVIT OF SERVICE. Jeanette Fiuerou served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
12

AFFIDAVIT OF SERVICE. Deborah Garbutt served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
13

AFFIDAVIT OF SERVICE. Michael Roder served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
14

AFFIDAVIT OF SERVICE. Dixon Su served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
15

AFFIDAVIT OF SERVICE. Peter Volaire served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
16

AFFIDAVIT OF SERVICE. Christopher Clark served on 5/7/2012, answer due 5/29/2012. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
17

AFFIDAVIT OF SERVICE. Nathan Collins served on 5/7/2012, answer due 5/29/2012. Service was accepted by Patricia Herman, 13th Precinct, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
18

AFFIDAVIT OF SERVICE. James Gatto served on 5/7/2012, answer due 5/29/2012. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
19

AFFIDAVIT OF SERVICE. Douglas Sheehan served on 5/7/2012, answer due 5/29/2012. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)

May 8, 2012 PACER
20

ENDORSED LETTER addressed to Judge Thomas P. Griesa from Andrew Lucas dated 5/24/2012 re: Defendant respectfully requests an extension of his time to answer or otherwise respond to the complaint from May 29, 2012 until July 30, 2012. ENDORSEMENT: Approved., Raymond Kelly answer due 7/30/2012. (Signed by Judge Thomas P. Griesa on 5/25/2012) (lmb) (Entered: 05/25/2012)

May 25, 2012 PACER
21

NOTICE OF APPEARANCE by Andrew Joseph Lucas on behalf of Raymond Kelly (Lucas, Andrew) (Entered: 05/30/2012)

May 30, 2012 PACER
22

NOTICE OF APPEARANCE by Dara Lynn Weiss on behalf of Raymond Kelly (Weiss, Dara) (Entered: 05/30/2012)

May 30, 2012 PACER
23

AFFIDAVIT OF SERVICE. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
24

SUMMONS RETURNED EXECUTED. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
25

SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
26

SUMMONS RETURNED EXECUTED. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
27

SUMMONS RETURNED EXECUTED. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
28

SUMMONS RETURNED EXECUTED. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
29

SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
30

SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
31

SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
32

SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
33

SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
34

SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
35

SUMMONS RETURNED EXECUTED. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
36

SUMMONS RETURNED EXECUTED. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
37

SUMMONS RETURNED EXECUTED. Service was accepted by Patricia Herman, 13th Precinct, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
38

SUMMONS RETURNED EXECUTED. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
39

SUMMONS RETURNED EXECUTED. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
40

SUMMONS RETURNED EXECUTED. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

June 1, 2012 PACER
41

SUMMONS RETURNED EXECUTED. Mathew Betting served on 6/1/2012, answer due 6/22/2012. Service was accepted by New York City Police Officer Grullon. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/05/2012)

June 5, 2012 PACER
42

SUMMONS RETURNED EXECUTED. Matthew Gresswell served on 6/5/2012, answer due 6/26/2012. Service was accepted by New York City Police Officer Frizziola. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/05/2012)

June 5, 2012 PACER
43

SUMMONS RETURNED EXECUTED. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/05/2012)

June 5, 2012 PACER
44

SUMMONS RETURNED EXECUTED. Brenda Batcher served on 6/1/2012, answer due 6/22/2012. Service was accepted by Lan Bang, NYPD employee, 106th Precinct. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/15/2012)

June 15, 2012 PACER
45

SUMMONS RETURNED EXECUTED. Thanya Duhaney served on 6/1/2012, answer due 6/22/2012. Service was accepted by Officer Washington, 113th Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/15/2012)

June 15, 2012 PACER
46

SUMMONS RETURNED EXECUTED. Chris Defeo served on 6/13/2012, answer due 7/5/2012. Service was accepted by Christina M. Bylon, NYPD Detective, 1 Police Plaza, RM 1310. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/27/2012)

June 27, 2012 PACER
47

SUMMONS RETURNED EXECUTED. Stephen Mazzard served on 6/13/2012, answer due 7/5/2012. Service was accepted by Officer Ranieri, NYPD 120th Precinct. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/27/2012)

June 27, 2012 PACER
48

ANSWER to 1 Complaint,,, with JURY DEMAND. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 07/27/2012)

July 27, 2012 PACER
49

ANSWER to 1 Complaint,,, with JURY DEMAND. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 07/31/2012)

July 31, 2012 PACER
50

NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental (Borchetta, Jennifer) (Entered: 08/02/2012)

Aug. 2, 2012 PACER
51

NOTICE OF APPEARANCE by Jonathan C Moore on behalf of Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental (Moore, Jonathan) (Entered: 08/03/2012)

Aug. 3, 2012 PACER

Pretrial Conference - Initial

Dec. 17, 2012 PACER

Minute Entry for proceedings held before Judge Thomas P. Griesa: Initial Pretrial Conference held on 12/17/2012. (tro)

Dec. 17, 2012 PACER
52

NOTICE OF CHANGE OF ADDRESS by David Bruce Rankin on behalf of All Plaintiffs. New Address: Rankin & Taylor, PLLC, 11 Park Place, Suite 914, New York, NY, USA 10007, 212-226-4507. (Rankin, David) (Entered: 12/31/2012)

Dec. 31, 2012 PACER
53

CASE MANAGEMENT PLAN: This Civil Case Management Plan (the "Plan") is submitted by the parties in accordance with Rule 26(f)(3), Fed. R. Civ. P. All parties do not consent to conducting all further proceedings before a Magistrate Judge, including motions and trial. 28 U.S.C. 5636(c). The parties are free to withhold consent without adverse substantive consequences. This case is to be tried to a jury. Amended pleadings may not be filed and additional parties may not be joined except with leave of the Court. Any motion to amend or to join additional parties shall be filed by February 25, 2013. All fact discovery shall be completed no later than September 17, 2013. The parties are to conduct discovery in accordance with the Federal Rules of Civil Procedure and the Local Rules of the Southern District of New York. The following interim deadlines may be extended by the written consent of all parties without application to the Court, provided that all fact discovery is completed by the date set forth in paragraph 5 above: Initial requests for production of documents to be served by February 8, 2013; Interrogatories to be served by February 8, 2013; Non-expert depositions to be completed by the close of fact discovery; and Requests to Admit to be served no later than August 16, 2013. All Expert discovery shall be completed no later than November 1, 2013. All motions and applications shall be governed by the Court's Individual Practices, including promotion conference requirements, except that motions in limine may be made without a promotion conference. Pursuant to the authority of Rule 16(c)(2), Fed. R. Civ. P., any motion for summary judgment will be deemed untimely unless a request for a premotion conference relating thereto is made in writing within 14 days of the date in paragraph 5 and the close of fact discovery or by October 1,2013. Counsel for the parties have conferred and their present best estimate of the length of trial is three weeks. Amended Pleadings due by 2/25/2013. Motions due by 10/1/2013. Deposition due by 8/16/2013. Fact Discovery due by 9/17/2013. Expert Discovery due by 11/1/2013. (Signed by Judge Thomas P. Griesa on 1/16/2013) (ago) (Entered: 01/16/2013)

Jan. 16, 2013 PACER
54

ENDORSED LETTER addressed to Judge Thomas P. Griesa from David B. Rankin dated 2/25/2013 re: Plaintiffs write to seek a three week extension of our time to amend our complaint. The time in our case management plan set this deadline for today, February 25,2013. An extension would set the new date for amending our complaint at March 18, 2013. Defendants consent to this request. ENDORSEMENT: Approved., ( Amended Pleadings due by 3/18/2013.) (Signed by Judge Thomas P. Griesa on 2/28/2013) (ama) (Entered: 02/28/2013)

Feb. 28, 2013 PACER
55

FIRST MOTION to Dismiss. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 03/06/2013)

March 6, 2013 PACER
56

DECLARATION of Andrew Lucas in Support re: 55 FIRST MOTION to Dismiss.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, John Does 1-10(Individually, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), John Does 1-10(In official capacity, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Attachments: # 1 Exhibit A - Summons and Complaint, # 2 Exhibit B - Statements via Twitter)(Lucas, Andrew) (Entered: 03/06/2013)

1 Exhibit A - Summons and Complaint

View on PACER

2 Exhibit B - Statements via Twitter

View on PACER

March 6, 2013 PACER
57

FIRST MEMORANDUM OF LAW in Support re: 55 FIRST MOTION to Dismiss.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Lucas, Andrew) (Entered: 03/06/2013)

March 6, 2013 PACER
58

FILING ERROR - DEFICIENT DOCKET ENTRY - REPLY MEMORANDUM OF LAW in Opposition re: 55 FIRST MOTION to Dismiss.. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) Modified on 4/18/2013 (ldi). (Entered: 04/17/2013)

April 17, 2013 PACER
59

FILING ERROR - DEFICIENT DOCKET ENTRY - MEMORANDUM OF LAW in Opposition re: 55 FIRST MOTION to Dismiss.. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, Dayna Rozental. (Rankin, David) Modified on 4/18/2013 (ldi). (Entered: 04/17/2013)

April 17, 2013 PACER
60

MEMORANDUM OF LAW in Opposition re: 55 FIRST MOTION to Dismiss.. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 04/18/2013)

April 18, 2013 PACER
61

REPLY MEMORANDUM OF LAW in Support re: 55 FIRST MOTION to Dismiss.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Lucas, Andrew) (Entered: 04/25/2013)

April 25, 2013 PACER
62

OPINION re: #103777 55 FIRST MOTION to Dismiss. filed by Peter Volaire, Joseph Diaz, Douglas Sheehan, Nathan Collins, Michael Casale, Thanya Duhaney, Chris Defeo, Raymond Kelly, Matthew Gresswell, Brenda Batcher, Francisco Costa, Mathew Betting, Michael Roder, Stephen Mazzard, Christopher Clark, Cynthia Boyle, James Gatto, Jesse Cotton, Dixon Su, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, Stephen Carolan, Yesenia Ayala. The motion to dismiss is denied. (Signed by Judge Thomas P. Griesa on 11/21/2013) (djc) Modified on 11/22/2013 (djc). Modified on 11/25/2013 (djc). Modified on 11/26/2013 (ca). (Entered: 11/22/2013)

Nov. 21, 2013 RECAP
63

MOTION for Jenn Rolnick Borchetta to Withdraw as Attorney. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Borchetta, Jennifer) (Entered: 12/18/2013)

Dec. 18, 2013 PACER
64

ORDER granting 63 Motion to Withdraw as Attorney.. On motion of Jenn Rolnick Borchetta to withdraw her appearance as counsel for the plaintiffs in the above referenced action IT IS ORDERED that the motion is GRANTED. Attorney Jennifer Rolnick Borchetta terminated(Signed by Judge Thomas P. Griesa on 12/19/2013) (ama) (Entered: 12/20/2013)

Dec. 20, 2013 PACER
65

NOTICE OF APPEARANCE by Joshua Samuel Moskovitz on behalf of Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Moskovitz, Joshua) (Entered: 01/23/2014)

Jan. 23, 2014 PACER
66

LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Thomas P. Griesa from Joshua S. Moskovitz dated February 13, 2014. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Attachments: # 1 Exhibit 1)(Moskovitz, Joshua) (Entered: 02/13/2014)

1 Exhibit 1

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Feb. 13, 2014 PACER
67

LETTER RESPONSE in Opposition to Motion addressed to Judge Thomas P. Griesa from Andrew Lucas dated 02/19/2014 re: 66 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Thomas P. Griesa from Joshua S. Moskovitz dated February 13, 2014.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Lucas, Andrew) (Entered: 02/19/2014)

Feb. 19, 2014 PACER

Scheduling Conference

March 14, 2014 PACER

Minute Entry for proceedings held before Judge Thomas P. Griesa: Plaintiff by David Rankin and Josh Moskovitz, defendant by Andrew Lucas & Dara Weiss.Scheduling Conference held on 3/12/2014. (Beale, Jon)

March 14, 2014 PACER
68

NOTICE OF APPEARANCE by Joy Tolulope Anakhu on behalf of Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Anakhu, Joy) (Entered: 07/02/2014)

July 2, 2014 PACER
69

JOINT LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Thomas P. Griesa from Joy T. Anakhu dated September 3, 2014. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Anakhu, Joy) (Entered: 09/03/2014)

Sept. 3, 2014 PACER
70

MEMO ENDORSED ORDER granting 69 Letter Motion for Extension of Time to Complete Discovery. ENDORSEMENT: Approved. Deposition due by 12/3/2014. Motions due by 12/17/2014. (Signed by Judge Thomas P. Griesa on 10/8/2014) (ajs) (Entered: 10/08/2014)

Oct. 8, 2014 PACER
71

LETTER MOTION for Extension of Time to Complete Discovery and for Defendants to file their SJM addressed to Judge Thomas P. Griesa from Joy T. Anakhu dated December 17, 2014. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Attachments: # 1 Exhibit A)(Anakhu, Joy) (Entered: 12/17/2014)

1 Exhibit A

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Dec. 17, 2014 PACER
72

ORDER granting 71 Letter Motion for Extension of Time to Complete Discovery and for Defendants to file their SJM. Approved. (Signed by Judge Thomas P. Griesa on 12/17/2014) (ajs) (Entered: 12/17/2014)

Dec. 17, 2014 PACER
73

JOINT LETTER MOTION for Extension of Time to Complete Discovery by May 15, 2015, addressed to Judge Thomas P. Griesa from Andrew Lucas dated 3/17/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 03/17/2015)

March 17, 2015 PACER
74

ORDER granting 73 Letter Motion for Extension of Time to Complete Discovery.The parties request a two month extension in discovery to May 15, 2015, and until June 19, 2015, to file any Summary Judgment motions. Approved. Discovery due by 5/15/2015. Motions due by 6/19/2015. (Signed by Judge Thomas P. Griesa on 3/23/2015) (ama) (Entered: 03/24/2015)

March 23, 2015 PACER
75

JOINT LETTER MOTION for Extension of Time to Complete Discovery by July 17, 2015 addressed to Judge Thomas P. Griesa from Andrew Lucas dated 5/12/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 05/12/2015)

May 12, 2015 PACER
76

ORDER granting 75 Letter Motion for Extension of Time to Complete Discovery. Approved. (Discovery due by 8/17/2015) (Signed by Judge Thomas P. Griesa on 5/14/2015) (kl) (Entered: 05/14/2015)

May 14, 2015 PACER
77

JOINT LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Thomas P. Griesa from Andrew Lucas dated 7/13/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 07/13/2015)

July 13, 2015 PACER

Set/Reset Deadlines

July 13, 2015 PACER
78

ORDER granting 77 Letter Motion for Extension of Time to Complete Discovery. So ordered. (Signed by Judge Thomas P. Griesa on 7/13/2015) (kl) (Entered: 07/13/2015)

July 13, 2015 PACER

Set/Reset Deadlines: Fact Discovery due by 9/15/2015. Motions due by 10/15/2015. Responses due by 11/6/2015. Replies due by 11/13/2015. (kl)

July 13, 2015 PACER
79

LETTER MOTION for Local Rule 37.2 Conference - for an in camera inspection addressed to Judge Thomas P. Griesa from David B. Rankin dated August 31, 2015. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 08/31/2015)

Aug. 31, 2015 PACER
80

LETTER RESPONSE in Opposition to Motion addressed to Judge Thomas P. Griesa from Andrew Lucas dated September 3, 2015 re: 79 LETTER MOTION for Local Rule 37.2 Conference - for an in camera inspection addressed to Judge Thomas P. Griesa from David B. Rankin dated August 31, 2015. & Cross-Motion. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Anakhu, Joy) (Entered: 09/03/2015)

1 Exhibit A

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2 Exhibit B

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Sept. 3, 2015 PACER

Set/Reset Scheduling Order Deadlines

Sept. 4, 2015 PACER

Set/Reset Scheduling Order Deadlines: Pre-Motion Conference set for 9/28/2015 at 03:30 PM in Courtroom 26B, 500 Pearl Street, New York, NY 10007 before Judge Thomas P. Griesa. (Zaepfel, Kenneth)

Sept. 4, 2015 PACER

Status Conference

Sept. 28, 2015 PACER

Minute Entry for proceedings held before Judge Thomas P. Griesa: Status Conference held on 9/28/2015. Attorney David Bruce Rankin, representing all plaintiffs. Attorney Andrew Lucas, representing all defendants. The Court directs counsel to complete the remaining additional depositions, on notice. (This resolves doc. No. 79.) The Court further establishes a briefing schedule, as follows: all defendants are to file a summary judgment motion not later than November 13, 2015; all plaintiffs are to file opposition briefs not later than December 15, 2015, and all defendants are to file reply briefs not later than January 15, 2016. (No transcript taken.) (Zaepfel, Kenneth)

Sept. 28, 2015 PACER
81

JOINT LETTER MOTION for Extension of Time to File Motion for Summary Judgment addressed to Judge Thomas P. Griesa from Andrew Lucas dated 11/10/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 11/10/2015)

Nov. 10, 2015 PACER

Set/Reset Deadlines

Nov. 10, 2015 PACER
82

ORDER granting 81 Letter Motion for Extension of Time to File. APPROVED. SO ORDERED. (Signed by Judge Thomas P. Griesa on 11/10/2015) (kl) (Entered: 11/12/2015)

Nov. 10, 2015 PACER

Set/Reset Deadlines: Motions due by 12/11/2015. Responses due by 1/8/2016. Replies due by 1/29/2016. (kl)

Nov. 10, 2015 PACER

State / Territory: New York

Case Type(s):

Policing

Special Collection(s):

Occupy

Key Dates

Filing Date: April 30, 2012

Closing Date: April 22, 2019

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiffs are five members of the Occupy Wall Street movement who were allegedly detained by the New York Police Department during a demonstration on Nov. 30, 2011.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Pending

Defendants

City of New York (New York, New York), City

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

42 U.S.C. § 1983

State law

Constitutional Clause(s):

Due Process

Equal Protection

Freedom of speech/association

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Confinement/isolation

False arrest

Over/Unlawful Detention

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