Stay Motion/ricci

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ----------------------------------------------------------x MICHAEL BRISCOE : Plaintiff : : v. : : CITY OF NEW HAVEN : Defendant : ----------------------------------------------------------x

NO: 3:09-CV-01642 (CSH)

NOVEMBER 2, 2009

MEMORANDUM IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS The defendant, the City of New Haven, submits this memorandum of law in support of its Motion for Stay of Proceedings. In determining whether to grant a stay, district courts within the Second Circuit typically analyze the interests of the plaintiff, the defendant, the court, non-parties and the public. When the interests of each are considered in light of the procedural posture and facts of this case, it is clear that a stay should be entered. Proceeding at this time will not benefit the plaintiff in any way. However, it will waste judicial resources and possibly result in inconsistent and conflicting rulings, thus causing a detriment to the defendant, this Court, nonparties and the public. I.

INTRODUCTION The results of the promotional examinations at issue were the subject of five days

of intense hearings and yet, although any and everyone who wanted to testify had the

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opportunity to do so, the plaintiff sat silent. After other firefighters filed suit to force the City to make the promotions, the plaintiff did not say anything, much less seek to intervene to protect his rights. While the case of these other firefighters ran its course through this District Court, the United States Court of Appeals for the Second Circuit and the Supreme Court of the United States, he still said nothing. Now, on the eve of the other case arriving back to the District Court to resolve who should be promoted, Mr. Briscoe comes forth and asks a different judge in this Court to promote him and him alone and to do so on an expedited basis. The City asks this Court instead to require Briscoe to continue doing what he has been doing for the last five and a half years: wait until the underlying Ricci v. DeStefano litigation is resolved. Having waited until the eleventh hour to file his claim, he certainly can wait “one hour” more. II.

FACTUAL AND PROCEDURAL BACKGROUND Although Briscoe filed this case only weeks ago, at bottom, this case is really

about another case pending before Judge Janet Bond Arteron: Ricci, et al. v. City of New Haven, et al., Docket No. 3:04-CV-1109 (JBA). In 2003, the City of New Haven’s fire department administered two promotional exams to determine eligibility for appointment to the positions of Captain and Lieutenant.

Due to a fear that certification of the

eligibility lists would violate the disparate impact provision of Title VII of the Civil

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Rights Act of 1964, the Civil Service Board voted to not certify the eligibility lists. In response, twenty White firefighters filed suit to force the City to certify the eligibility lists and make promotions in accordance therewith. The City prevailed at the summary judgment stage in the District Court and this decision was upheld by the Second Circuit. In a sharply divided 5-4 decision, the Supreme Court of the United States ruled otherwise. The Supreme Court held that the proper standard for evaluating whether the City improperly failed to certify the 2003 civil service examinations was its newly created “strong basis in evidence” standard. Ricci v. DeStefano, --- U.S. ---, 129 S. Ct. 2658, 2676 (2009) (“[W]e adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.”). Under this standard, the Court held that the City failed to provide a strong basis in evidence that a disparate impact violation would have occurred because it did not present sufficient facts that either the test was not job-related or that there was a viable less discriminatory alternative than the exam process already administered. Id. at 2681. The Ricci case has now been remanded to the District Court for further proceedings. On October 15, 2009, Michael Briscoe, filed the present action alleging that the 2003 Lieutenant examination “had a disparate impact on African-American candidates;

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and it will prevent the plaintiff from being promoted to the rank of lieutenant, even though he is one of the most highly qualified candidates.” (Complaint, ¶ 1.) He, therefore, seeks to be promoted immediately to the rank of lieutenant with retroactive seniority or require the City to “use a nondiscriminatory selection system to make promotions to any vacant lieutenant positions” as a remedy. (Complaint, Prayer For Relief.)

He further seeks to enjoin the City from “adopting and applying a weighting

system for the components of any examination,” or any other selection device “that is not job related and justified by business necessity or that is likely to have an adverse impact greater than is required by business necessity.” Id. Briscoe maintains that he is not seeking to hold up the promotion or consideration for promotion of the Ricci plaintiffs who would otherwise be considered.” (Letter from David Rosen to Victor A. Bolden, dated October 16, 2009, ¶ 4) (Exhibit A.) Instead, he claims to seek his own “promotion, not the delay of the promotion of others.” Id. However, plaintiff readily concedes that he is not eligible for promotion based on the results of the 2003 exam (Complaint, ¶ 3), and the City already has announced its intention to make promotions consistent with those results. See Alison Leigh Cowan, Firefighter Test Brings New Haven a Fresh Suit, N.Y. Times, October 15, 2009, at http://www.nytimes.com/2009/10/16/nyregion/16firefighters.html?_r=1&scp=3&sq=bris coe&st=cse.

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III.

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ARGUMENT This Court should enter a stay of any and all proceedings, including but not

limited to the filing of motions, dispositive or otherwise, or the taking of discovery, on an expedited basis or any other basis, while the proceedings in the Ricci case are still ongoing.1 The stay should be entered, because proceeding expeditiously will not benefit the plaintiff, nor will he be disadvantaged if the case is stayed. However, the interests of the defendant, the Court, non-parties, and the public will be served by a stay. A stay should be entered because proceeding would require the defendant to simultaneously litigate the same issues in both Briscoe and Ricci. A stay would also benefit the interests of the Court by obviating the need for simultaneous litigation of identical issues, allowing it to obtain guidance from the Ricci case for the resolution of the present case and eliminating the possibility of inconsistent or conflicting rulings. Allowing the Briscoe case to proceed at this time could also have an adverse affect on the interests of the Ricci plaintiffs. Finally, the public interest favors entering a stay because proceeding would waste judicial resources, encourage further litigation and could further delay the promotions of supervisory fire personnel.

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Initially, the City expressed to the Court an interest in staying the matter until at least the Ricci matter returned to the District Court from the Second Circuit. Last week, the Second Circuit remanded the matter back to the District Court. In any event, upon further review of the case, as well as the applicable case law, the more appropriate course is for this case to be stayed in its entirety until the Ricci matter is concluded or, at least there is clarity on how promotions will proceed in the Ricci case.

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“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936); see also Clinton v. Jones, 520 U.S. 681, 706 (1997) (noting that district courts have broad discretion to control cases within its docket); Kashi v. Grastos, 790 F.2d 1050, 1057 (2 nd Cir. 1986) ([A] court may decide in its discretion to stay civil proceedings . . . ‘when the interests of justice seem . . . to require such action . . . .”) (citations and quotations omitted). If any “cause” currently in the United States District Court of Connecticut requires a stay “to control the disposition” with an “economy of time and effort for itself, for counsel, and for litigants,” it is this one. District Courts within the Second Circuit have considered five factors in deciding whether to grant a stay: (1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest.

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Volmar Distribution v. New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993); Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. E.P.A., 630 F. Supp. 2d 295, 304 (S.D.N.Y. 2009); Finn v. Barney, 2008 WL 5215699, (S.D.N.Y.) (Swain, D.J., Dec. 8, 2008) (Exhibit B); LaSala v. Needham & Co., 399 F. Supp. 2d 421, 427 (S.D.N.Y. 2005). “Balancing these factors is a case-by-case determination, with the basic goal being to avoid prejudice.” Id.

The balancing of these factors here heavily weighs in favor of

granting the requested stay. A.

The Plaintiff’s Interests

A stay should be entered because proceeding expeditiously will not benefit the plaintiff, nor will he be disadvantaged if the case is stayed. First, regardless of whether the case is stayed, the threshold issue in the present case is whether the action should be maintained or dismissed under Rule 12 of the Federal Rules of Civil Procedure. 2

No

discovery is necessary to resolve this issue. Additionally, the need for discovery does not warrant proceeding expeditiously. The plaintiff took the examination in 2003 and knew that the exam was the subject of both controversy and litigation and that the outcome thereof could affect his opportunity for promotion. Nevertheless, he waited until months after the Ricci litigation resulted in 2

Indeed, the very reason the City is moving to stay, rather than dismiss, this action is to ensure that the disposition is consistent with the handling of the Ricci matter. Certainly, the Supreme Court’s own words suggest that the plaintiff has no viable cause of action. See Ricci, 129 S. Ct. at 2681 (“If after it certifies the test results the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”).

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a Supreme Court ruling to claim that his rights might be adversely affected by its outcome. If the plaintiff had moved to alter the course of the Ricci litigation at its outset, rather than its sunset, he surely would already have the discovery he now belatedly seeks. Moreover, the plaintiff cannot suggest that there is a concern that the evidence sought will not be available at a later date. The defendants in the Ricci case, which involves the same factual circumstances, were and are under an obligation to preserve evidence. Additionally, significant discovery was conducted in the Ricci case, which can be made available to the plaintiff once the stay is lifted.

Therefore, proceeding

expeditiously will not benefit the plaintiff, nor will he be disadvantaged if the case is stayed. B.

Interests of and Burden on the Defendant

If a stay is not entered, the City will suffer an undue burden by having to proceed with the filing of motions, discovery and injunctive proceedings in the present case, while related proceedings will be ongoing in the Ricci case. Catskill Mountains, 630 F. Supp. 2d at 306 (a stay was appropriate because it would “serve their interests by minimizing the amount of time and resources they will spend on duplicative litigation.”); Finn, 2008 WL 5215699 at *3 (referring to, inter alia, the burden of “premature” discovery). Moreover, the outcome in Ricci may change the face of or render such litigation unnecessary. As the issues set forth in both cases are so similar and involve the same

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facts, the decision in Ricci will undoubtedly affect, if not resolve, the claims at issue in the present case. (See Section C.) Therefore, litigating Briscoe simultaneously with Ricci, especially when such litigation may prove unnecessary, will unnecessarily burden the defendant. C.

Interest of the Court

The interest of this Court also strongly favors granting the stay. A stay would promote judicial efficiency and would ensure that litigation is not further protracted by conflicting and contradictory rulings. Catskill Mountains, 630 F. Supp. 2d at 304 (staying this action “will best serve the interests of the courts by promoting judicial efficiency and ‘minimiz[ing] the possibility of conflicts between different courts.’”) quoting N.Y. Power Auth. v. United States, 42 Fed.Cl. 795, 799 (Fed.Cir. 1999). Conversely, if the stay is not granted, the issue of whether to make promotions based on the 2003 examinations will be litigated in two separate cases, by two different judges, involving different parties. Simultaneous litigation would be a waste of judicial resources. Catskill Mountains, 630 F. Supp. 2d at 306 (“denying a stay would require the courts and the Parties to expend resources on simultaneous litigation of identical issues in two courts.”) Additionally, the outcome of the Ricci case will undoubtedly affect, if not resolve, the claims at issue in the present case. Resolution of the issues surrounding the

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Lieutenant and Captain promotions in Ricci will, at a minimum, be instructive here. See LaSala, 399 F. Supp. 2d at 427 (“a stay may…be appropriate [while] awaiting ‘the outcome of proceedings which bear upon the case, even if such proceedings are not necessarily controlling of the action that is to be stayed.’”); Goldstein v. Time Warner N.Y. City Cable Group, 3 F. Supp. 2d 423, 439 (S.D.N.Y. 1998) (resolution of [the other case] should guide this Court in ruling on…the key issues in this litigation.”); Catskill Mountains, 630 F. Supp. 2d. at 305 (same); Finn, 2008 WL 5215699 at *3 (same). Finally, a stay would ensure that this action does not result in proceedings which would be inconsistent or conflicting with those in the Ricci case. Catskill Mountains, 630 F. Supp. 2d at 306 (“Minimizing the risk of inconsistent judgments in the instant actions…i s o f p a rticular importance, as different judgments would cause uncertainty…and could ultimately prolong litigation….”); N.Y. Power Auth., 42 Fed.Cl. at 804-05 (granting a stay will potentially “avoid…inconsistent judgments that [c]ould result if both courts…proceeded simultaneously.”). Therefore, the interests of this Court favor entering a stay. D.

Interests of Non-parties

The interests of persons not parties to this action also will be served by granting a stay. “[D]enying a stay may also prejudice…nonparties that are before [another court].” Catskill Mountains, 630 F. Supp. 2d at 306. Here – without presuming to speak for them

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– the plaintiffs in Ricci have been litigating the issue regarding who should be promoted since 2004. However, if a stay is not granted, this issue will simultaneously be addressed by another judge, in a separate case, to which they are not parties. Thus, allowing the Briscoe case to proceed at this time could have an adverse effect on the interests of the Ricci plaintiffs. E.

The Public Interest

Finally, the public interest is served by granting this stay. The public clearly has an interest in judicial efficiency. As discussed above (see Section C), judicial efficiency will be wasted by allowing Briscoe to proceed prior to the resolution of Ricci. Moreover, allowing this action to proceed will only encourage more litigation brought by other parties -- perhaps before other judges on this Court -- regarding who should be promoted based on the 2003 exam results. Having ongoing litigation on multiple fronts regarding the promotion of firefighters under the same examination is not in anyone’s interest. It fosters confusion at the expense of clarity; and it encourages perpetual litigation at the expense of finality. Finally, allowing Briscoe to proceed at this time could act to stall the granting of promotions in Ricci. The public clearly has a vested interest in having adequate supervisory fire personnel. Therefore, the public interest also favors entering a stay.

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IV.

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CONCLUSION As a result, “because the interests of the Court, the Parties, nonparties and the

public outweigh any prejudice that would result from a stay of these proceedings,” Catskill Mountains, 630 F. Supp. 2d at 307, this Court should grant a stay of any and all proceedings in this matter, including the filing of motions, dispositive or otherwise, and the taking of discovery on an expedited or any other basis, until the Ricci case has concluded. Therefore, the City of New Haven respectfully requests that its Motion for Stay of proceedings be granted.

THE DEFENDANT CITY OF NEW HAVEN

_____/s/_____________________ Richard A. Roberts (ct07665) Stacey L. Pitcher (ct27111) Todd J. Richardson (ct26699) Nuzzo & Roberts, LLC 1 Town Center Plaza Cheshire, CT 06410 203-250-2000 203-250-3131 (facsimile) [email protected] [email protected] [email protected]

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__/s/________________________ Victor A. Bolden (ct22526) Corporation Counsel Office of the Corporation Counsel City of New Haven 165 Church Street New Haven, CT 06510 (203) 946-7951 [email protected]

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CERTIFICATION This is to certify that on November 2, 2009, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court(s) electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF system. David N. Rosen, Esq. 400 Orange Street New Haven, CT 06511 Victor A. Bolden, Esq. Office of Corporation Counsel City of New Haven 165 Church Street New Haven, CT 06510

/s/ Richard A. Roberts

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