Vitagliano v. County Of Westchester

• Court: District Court, S.D. New York
• Decided: December 23, 2022
• Docket: 7:22-cv-09370
• Status: Unknown

Opinion

Thomas Hlore SOCIETY A national public interest law firm defending life, family and religious liberty. Application denied without prejudice to renewal after Defendant files its response December 22, 2022 | to the Second Amended Complaint. UNOPPOSED LETTER MOTION Fo} 8° ORDERED.

Hon. Philip M. Halpern, U.S.D.J. USS. District Court for the Southern District of New York United States District Judge Hon. Charles L. Brieant Jr. Federal Building and U.S. Courthouse Dated: Done en eno 300 Quarropas St., Room 530 ecembet White Plains, NY 10601 Re: 40 Days for Life v. County of Westchester, 7:22-cv-06950 (PMH) Rel. Vitagliano v. County of Westchester, 7:22-cv-09370 (PMH) Dear Judge Halpern: We are in receipt of counsel for Plaintiff Vitagliano’s response to the pre-motion conference letter County defense counsel have presented to Your Honor respecting the County’s motion under Rule 12(b)(6) to dismiss the Complaint in Vitagliano, which challenges only the “floating” eight-foot bubble zone provision of Chapter 425, as to which Hill v. Colorado remains the controlling authority. In their response, counsel for Vitagliano suggest that the Court treat the County’s pre-motion conference letter as the Rule 12(b)(6) motion itself and decide it accordingly in light of Hi//. In view of this development, Plaintiffs in this case respectfully request a conference with the Court regarding the possibility of the Court sua sponte issuing the same decision as to Plaintiffs’ bubble zone challenge in this case, both facially and as-applied, pursuant to the Court’s inherent authority to do so under Rule 12, given that the Court is bound by Hi// and Plaintiffs’ good faith argument for a modification of controlling law must abide the Supreme Court’s reconsideration of Hill. See Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d Cir. 1980) (“The district court has the power to dismiss a complaint sua sponte for failure to state a claim.”). Should the Court be amenable to such a resolution at the requested conference, Plaintiff's would further request that any such dismissal be deemed a final judgement on the bubble zone issue under Rule 54(b) because “there is no just reason to delay entry of a final judgment” on the same issue as that presented in Vitagliano. L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 86-87 (2d Cir. 1998); Info. Res., Inc. v. Dun & Bradstreet Corp., 294 F.3d 447, 451 (2d Cir. 2002)(“determination that there is no just reason for delay” supported by “reasoned, even if brief, explanation” is “left to the sound judicial discretion of the district court and is to be exercised in the interest of sound judicial administration.”)(cleaned up) Plaintiffs make these requests to avoid the potential prejudice that would accrue if their appellate challenge to the bubble zone provision, including an ultimate petition for certiorari seeking the overruling of Hill, were to be determined by the outcome of any appeal in Vitagliano, in which these Plaintiffs would

not be able to participate. We believe this is the paradigmatic case for application of Rule 54(b), there being “no just reason for delay” of appellate consideration of the same issue in both of these related cases at the same time. Curtiss–Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980) Further, what we propose would serve judicial economy by reducing the number of issues this Court would have to decide in this case, as Plaintiffs would be foregoing their challenge to the bubble zone on the several bases alleged in the Second Amended Verified Complaint, given the still-controlling decision in Hill. Thus, none of the evidence to be presented on Plaintiffs’ challenges to the other provisions of Chapter 425 would involve the bubble zone, a clearly discrete and severable issue governed by the decision in Hill, and the preliminary injunction proceedings would be significantly streamlined. Finally, we note that neither counsel for Plaintiff Vitagliano nor counsel for Westchester County would have any objection to the Court simply granting the requested relief without a conference. Respectfully submitted, s/Christopher A. Ferrara Christopher A. Ferrara Special Counsel – Thomas More Society 148-29 Cross Island Parkway Whitestone, Queens, New York 11357 Telephone: 718-357-1040 cferrara@thomasmoresociety.org Counsel for Plaintiffs MICHAEL G. MCHALE, ESQ.* Counsel THOMAS MORE SOCIETY 10506 Burt Circle, Ste. 110 Omaha, NE 68114 Telephone: 402-501-8586 mmchale@thomasmoresociety.org Counsel for Plaintiffs (pro hac vice) c: Counsel for Westchester County (by ECF) Mark Rienzi, counsel for Plaintiff Vitagliano (by email: mrienzi@becketlaw.org). . 2 309 W. Washington Street | Suite 1250 | Chicago, IL 60606 | P: 312.782.1680 | thomasmoresociety.org “Injustice anywhere is a threat to justice everywhere.” - Dr. Martin Luther King