Free Motion to Vacate - District Court of Connecticut - Connecticut

Case 3:03-cv-00221-AVC

Document 110-2

Filed 04/22/2006

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STATE EMPLOYEES BARGAINING AGENT COALITION, ET AL, Plaintiffs, V. JOHN G. ROWLAND, ET AL, Defendants.

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CIV. NO. 3:03CV221 (AVC)

APRIL 21, 2006

PLAINTIFFS' MEMORANDUM IN SUPPORT OF MOTION TO VACATE OR MODIFY STAY Plaintiffs respectfully move this Court to review, one last time, the stay of discovery entered in this action. The stay is premised on the Court's view of the possible merits of defendants' absolute legislative immunity defense and the possibility that defendants will succeed on appeal in establishing their entitlement to that defense. However, even should defendants prevail on appeal on their legislative immunity defense, the defense only applies to plaintiffs' claims against defendants in their individual capacities. Board of Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 677 n. * (1996); Kentucky v. Graham, 473 U.S. 159, 167 (1985); Goldberg v. Town of Rocky Hill, 973 F.2d 70, 73 (2d Cir. 1992); Baines v. Masiello, 288 F.Supp.2d 376, 383-84 (W.D.N.Y. 2003); Legal Aid Society v. City of New York, 114 F.Supp.2d 204, 231 (S.D.N.Y. 2000); Herbst v. Daukus, 701 F. Supp. 964, 969 (D. Conn. 1988) (Dorsey, J.). The defense is inapplicable to plaintiffs' claims against defendants in their official capacity. Id.

Case 3:03-cv-00221-AVC

Document 110-2

Filed 04/22/2006

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As the United States Supreme Court stated in Umbehr in rejecting a legislative immunity claim in a suit brought under 42 U.S.C. § 1983: Because only claims against the Board members in their official capacities are before us, and because immunity from suit under § 1983 extends to public servants only in their individual capacities, the legislative immunity claim is moot. Umbehr. at 677 n.*; accord Kentucky v. Graham, 473 U.S. at 167 (in an official-capacity action, immunity defenses, including absolute immunity defenses, "are unavailable"); Goldberg v. Town of Rocky Hill, 973 F.2d at 73 (town councilmen not entitled to legislative immunity on official capacity claims against them); Baines v. Masiello, 288 F.Supp.2d at 383-84 ("well-established" that legislative immunity does not protect officials sued in their official capacities); Legal Aid Society v. City of New York, 114 F.Supp.2d at 231 (same); Herbst v. Daukus, 701 F. Supp. at 969 ("Town Council Defendants are only entitled to assert legislative immunity as to claims against them in their individual capacity"). In its Ruling on Defendants' Motion to Dismiss, the Court dismissed plaintiffs' claims for lost wages asserted defendants in their individual capacities, but allowed plaintiffs' claim for reinstatement, asserted against defendants in their official capacities, to proceed. Ruling at 13. Plaintiffs respectfully submit that, since the defense of legislative immunity does not apply to their claim for reinstatement (and since, as this Court has recognized, there is a need for prompt discovery and resolution of that claim1), the stay of discovery entered in this action

"Further delay is simply too costly because, if the plaintiffs are to prevail, they cannot recover money damages for their lost time, only reinstatement to lost jobs." March 8, 2006 Order.

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Case 3:03-cv-00221-AVC

Document 110-2

Filed 04/22/2006

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should be vacated or, at the least, modified to allow discovery to proceed on plaintiffs' claims against defendants in their official capacities.2 PLAINTIFFS STATE EMPLOYEES BARGAINING AGENT COALITION, ET AL,

BY DAVID S. GOLUB ct 00145 JONATHAN M. LEVINE ct 07584 SILVER GOLUB & TEITELL LLP 184 ATLANTIC STREET P.O. BOX 389 STAMFORD, CONNECTICUT 06904 TEL. (203) 325-4491 FAC. (203) 325-3759 [email protected] [email protected]

While plaintiffs' claim for lost wages was, of course, a major component of their individualcapacity claims against defendants, plaintiffs' individual-capacity claims also seek monetary damages for defendants' interference with their First Amendment rights and punitive damages. Defendants' appeal on the legislative immunity issue is, presumably, directed to these remaining aspects of plaintiffs' individual-capacity claims.

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Case 3:03-cv-00221-AVC

Document 110-2

Filed 04/22/2006

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CERTIFICATION This is to certify that a copy of the foregoing has been hand-delivered, this 21st day of April, 2006 to: Albert Zakarian, Esq. Allan B. Taylor, Esq. Victoria Woodin Chavey, Esq. Douglas W. Bartinik, Esq. Day, Berry & Howard LLP CityPlace I Hartford, CT 06103-3499 Ann H. Rubin, Esq. Carmody and Torrance 50 Leavenworth Street Waterbury, CT 06721-1110.

DAVID S. GOLUB

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