The Players, Inc. v. City of New York

371 F.Supp.2d 522

THE PLAYERS, INC., d/b/a The Players, Plaintiff, v. CITY OF NEW YORK, Eliot Spitzer, In His Official Capacity as Attorney General of the State of New York and Antonia C. Novello, In Her Official Capacity as Commissioner of the New York State Department of Health, Defendants.

No. 03 CIV. 10155(VM).

United States District Court, S.D. New York.

May 20, 2005.

COPYRIGHT MATERIAL OMITTED

Kevin T. Mulhearn, Law Office Kevin T. Mulhearn, P.C., Orangeburg, NY, for Plaintiff.

Ave Maria Brennan, Corporation Counsel Office, City of New York, John P. Gasior, Eliot Spitzer, Attorney General of the State of New York, New York City, for Defendants.

DECISION AND ORDER

MARRERO, District Judge.

This case raises a constitutional challenge to smoking restrictions recently adopted by the City of New York (the "City") and the State of New York (the "State") (collectively, "Defendants").¹ The State's new restrictions are contained in Chapter 13 of the Laws of 2003 ("Chapter 13"), and the City's new restrictions are contained in Local Law 47 of 2002 ("Local Law 47") (collectively, the "Smoking Bans"). The case was consolidated with an earlier action decided by this Court and reported as NYC C.L.A.S.H., Inc. v. City of New York, 315 F.Supp.2d 461 (S.D.N.Y.2004) ("CLASH"), and is similar to that case in most respects. As in CLASH, the plaintiff here, The Players, Inc., d/b/a The Players ("Players"), is challenging the constitutionality of The Smoking Bans. Also as in CLASH, Defendants have moved to dismiss or, in the alternative, for summary judgment. Familiarity with the Court's description in CLASH of the statutory schemes at issue, and its disposition of Defendants' motions, is assumed.²

This case differs from CLASH in three important respects, however. First, unlike the plaintiff in CLASH, Players is not an issue-oriented organization formed to advocate for smokers' rights. Rather, it is a private social club with a long and storied history. Players, according to the allegations in the Amended Complaint, was formed almost 100 years ago as a social club for actors and members of the theatrical profession. (See Amended Complaint, dated August 30, 2004 ("Am.Compl.") ¶¶ 7-8.) Second, Players' Amended Complaint raises new or slight variations on constitutional claims raised in CLASH: a new claim based on the Fourth Amendment's regulation of governmental searches and seizures, another variant of the claims under the Equal Protection Clause and First Amendment raised in CLASH, and a new claim based on the Due Process Clause of the Fourteenth Amendment. Third, the procedural posture of this case is different: while the CLASH plaintiffs opposed Defendants' motions and cross-moved for summary judgment, Players submitted a motion for further discovery pursuant to Fed.R.Civ.P. 56(f) and failed to submit any materials other than a belated memorandum of law in opposition to Defendants' motions in this case. Players' Rule 56(f) motion has sought to stay the Court's consideration of Defendants' motions while further discovery is conducted.

As discussed in greater detail below, the Court declines to delay its consideration of Defendants' motions. It denies Players' Rule 56(f) motion, and grants Defendants' motions for summary judgment.

I. BACKGROUND

The Court must describe the convoluted procedural history of this case to explain why it is prepared to rule on Defendants' motions without further briefing from the parties. Players filed the instant suit on December 23, 2003, several months after CLASH filed its challenge to the State's and City's smoking laws. The Court consolidated the two cases on February 2, 2004, and informed the parties through their attorneys that it would delay its consideration of Players' suit until it first disposed of the claims in CLASH. The Court did so not only because of the similarity of issues raised by the two cases, but also because counsel for the parties were the same in both cases: Kevin T. Mulhearn, Esq. ("Mulhearn") represents both the CLASH plaintiffs and Players, and John P. Gasior ("Gasior") and Ave Maria Brennan ("Brennan") represent the State and City, respectively, in both cases. The Court's opinion in CLASH, which granted the State and City summary judgment on all claims, was issued on April 21, 2004.

On April 29, 2004, Mulhearn faxed a letter to the Court indicating that he had decided to amend Players' Complaint to narrow its claims against Defendants in response to the Court's CLASH decision. He informed the Court at that time that the Amended Complaint "should be ready early next week." (See Letter from Kevin T. Mulhearn to the Court of 4/29/04.) In fact, the promised Amended Complaint was not filed until September 15, 2004, more than four months after Mulhearn had informed the Court that it would be ready. Nonetheless, Defendants consented to the late service and filing of the Amended Complaint, and the Court authorized it to be filed.

On September 23, 2004, the Court held a status conference to discuss scheduling and discovery issues related to the case. As Brennan recounts in a declaration submitted in response to Players' Rule 56(f) motion, at that conference, Mulhearn sought to propound limited discovery demands related to Players' Fourth Amendment and Equal Protection challenges to the laws. Defendants resisted, arguing that the case presented purely legal issues that did not require discovery, and that the case was therefore ripe for adjudication on the merits. The Court agreed to allow Mulhearn to serve limited discovery demands on Defendants by September 30, 2004. The parties informed the Court that the case would be ripe for adjudication on the merits following completion of the limited discovery sought by Mulhearn on Players' behalf. Consequently, the Court directed the parties to develop a briefing schedule for dispositive motions related to the case. (See Declaration of Ave Maria Brennan in Opposition to Plaintiff's Cross-Motion Pursuant to Rule 56(f) ("Brennan Opp. Decl.") ¶¶ 14-16.)

September 30, 2004, came and went without any submission of discovery demands by Mulhearn. Instead, by stipulation dated September 30, 2004, the parties agreed to the following briefing schedule: Defendants' motions to dismiss and/or for summary judgment were to be submitted by November 5, 2004; Players was to "serve its oppositions to the defendants' motions and serve its cross-motions" by November 26, 2004; Defendants were to "serve their replies on their motions and serve their oppositions to plaintiff's cross-motions" by December 17, 2004; and Players was to "serve its replies on its cross-motions" by December 31, 2004. (See Stipulation dated September 30, 2004 ("Stip.") ¶ 1.) Mulhearn, Brennan, and Gasior each signed the stipulation and jointly submitted it to the Court. The Court "So Ordered" the stipulation on October 3, 2004.

On November 4, 2004, the State submitted its motions to dismiss and, in the alternative, for summary judgment, along with supporting documentation. The City filed its motions to dismiss and/or for summary judgment on November 8, 2004. By that date, Mulhearn still had not propounded any discovery demands. Nor did Mulhearn submit Players' replies to Defendants' motions or any cross-motions on November 26, 2004, the date stipulated by the parties. Instead, by letter dated December 17, 2004, Mulhearn informed the Court that he had experienced health problems which had prevented him from submitting his opposition papers or seeking permission from the Court to modify the stipulated scheduling order. He requested an additional extension, until December 28, 2004, to submit Players'"opposition papers." (See Letter from Mulhearn to the Court of 12/17/04.) The Court granted Mulhearn's request, allowing him to submit his response on December 28, 2004, and providing Defendants until February 11, 2005, to submit their reply and opposition papers.

On December 28, 2004, Mulhearn submitted no opposition to Defendants' motions to dismiss. Nor did he submit any substantive response to Defendants' motions in the alternative for summary judgment. He also did not submit any cross-motions for summary judgment, as he had done in CLASH and as he indicated he would do at the September 23, 2004 status conference. Rather, he submitted a "Notice of Cross-Motion" indicating that he was seeking "an order and judgment, pursuant to Federal Rule of Civil Procedure 56(f), granting Plaintiff's application for additional discovery with respect to the issue of the New York City and/or New York State regulatory schemes, if any, with respect to the enforcement of Local Law 47 and Chapter 13, respectively." (Players' Notice of Cross-Motion, dated December 28, 2004, at 1.) Mulhearn also submitted his own affidavit and a list of document demands, but no memorandum of law, in support of Players' Rule 56(f) motion.

On February 11 and 14, the State and City, respectively, submitted papers in opposition to Players' Rule 56(f) motion and in further support of their earlier motions. By letter dated February 17, 2005, Mulhearn requested until February 28, 2005 "to file and serve its reply papers." That letter further noted that Defendants' reply briefs contained additional arguments in support of their motions, and asked the Court: "Does the Court require Plaintiff to respond to the substantive motion points made by Defendants, even though Plaintiff has requested a continuance pursuant to its cross-motion. [sic] If so, kindly advise as to when such a response needs to be filed and served." (Letter from Mulhearn to the Court of 2/17/05.) The Court replied via memo endorsement granting Mulhearn until February 28, 2005 to submit reply papers, and stating the following in response to Mulhearn's question: "the Court is not clear what additional discovery Plaintiff refers to. It was the Court's impression that whatever discovery issues existed had been resolved. The parties are directed to...