Case 5:18-cv-00496-FJS-DEP Document 48-1 Filed 08/27/18 Page 1 of 8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JOHN DOE #1, JOHN DOE #2, JOHN DOE #3,

JOHN DOE #4, JOHN DOE #5, JOHN DOE #6,
JOHN DOE #7, JOHN DOE #8, and JOHN DOE
#9.

Plaintiffs,
vs.
Civil Action No. 5:18-CV-00496
SYRACUSE UNIVERSITY, KENT SYVERUD, (FJS-DEP)
individually and as Chancellor of Syracuse University,
ROBERT HRADSKY, individually and as Syracuse
University Dean of Students and Associate Vice
President of the Student Experience, and TERESA
ABI-NADER DAHLBERG, individually and as the
Dean of the College of Engineering and Computer
Science,

Defendants.

DEFENDANTS’ MEMORANDUM IN SUPPORT OF ORDER TO SHOW CAUSE

JENNER & BLOCK LLP HANCOCK ESTABROOK, LLP

David W. DeBruin (pro hac vice) John G. Powers (Bar Roll #: 508934)
Ishan K. Bhabha (pro hac vice) Paul J. Tuck (Bar Roll #: 520814)
1099 New York Avenue, N.W., AXA Tower I, Suite 1500
Suite 900 100 Madison Street
Washington, DC 20001-4412 Syracuse, NY 13202
(202) 639-6015 (315) 565-4500
ddebruin@jenner.com jpowers@hancocklaw.com

Attorneys for Defendants

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PRELIMINARY STATEMENT

On June 28, 2018 this Court denied Plaintiffs’ motion for a preliminary injunction, finding

“Plaintiffs have certainly not shown that their positions with regard to [the relevant issues]

constitute a clear or substantial likelihood of success on the merits.” Dkt. 24 at 10. On August

24, 2018, the very same plaintiffs filed an order to show cause in the Supreme Court of the County

of Jefferson in the State of New York (the “State Court”) in John Doe, et al. v. Syracuse University,

Index No. 2018-00001865, RJI No. 22-18-0762 (the “State Action,” the Verified Petition is

attached hereto as Ex. A) seeking essentially the identical emergency relief this Court denied, on

identical grounds. See Order to Show Cause, attached hereto as Ex. B. On August 27, 2018, the

state court issued an order to show cause, granting Plaintiffs’ temporary restraining order until

September 19th, and prohibiting defendants from taking any adverse action against Plaintiffs

arising out of Defendants’ determination that Plaintiffs violated the University’s Code of Student

Conduct (“the Code”). This blatant instance of forum shopping is a direct attempt to undermine

the efficacy of this Court’s June 28 judgment, and Defendants therefore respectfully request that

this Court enjoin Plaintiffs from seeking or placing into effect, any judicial remedy issues in the

State Action pursuant to the All Writs Act, 28 U.S.C. § 1651, and the specified exceptions to that

Act detailed in the Anti-Injunction Act, 28 U.S.C. § 2283.

BACKGROUND

On August 24, 2018, one month after the University issued final disciplinary decisions

against Plaintiffs in connection with their participation in conduct that violated the Code, Plaintiffs

filed an Order to Show Cause in the State Action seeking to prevent Defendants from taking any

adverse action against them. As demonstrated below, Plaintiffs allegations in this case and the

State Action, and the relief Plaintiffs seek in both actions, is functionally identical.

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As regards their allegations:
No basis to punish
Federal Action State Action
Plaintiffs allege that the Petitioners assert that
content of the videos the content of the
was within the bounds videos was satire, and,
of protected speech, see thus protected speech,
Dkt. 42 ¶¶ 58(a)-(d), see Ex. A at ¶¶ 52(e),
74(a), 82, 98. 63
Plaintiffs allege that the Petitioners assert that
content of the videos they could not have
did not violate the violated the anti-
“generic Anti- harassment policy
Harassment policy,” because it was not
see Dkt. 42 ¶ 58(g). directed at an
individual or group, see
Ex. A at ¶ 61.
Plaintiffs allege that the Petitioners contend that
content of the videos they did not threaten
did not threaten the the mental health of
mental health of others, others, see Ex. A at ¶
see Dkt. 42 ¶ 58(e). 66.
Plaintiffs assert that the Petitioners assert that
University is prohibited there was no intent to
from punishing harass, thereby
students for harassment exempting their
under the code, see conduct from
Dkt. 42 ¶ 58(g). punishment, see Ex. A
at ¶¶ 52, 65.
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Procedural errors
Federal Action
Plaintiffs assert that
placing a notation or hold
on Plaintiffs’ transcripts
was not permitted, see
Dkt. 42 ¶¶ 74(f), 75(e).
Plaintiffs allege that it
was error to place a hold
on transcripts based on
“frivolous” charges, see
Dkt. 42 ¶¶ 74(e), 75(d).
Plaintiffs contend that
they were placed on a
“quasi-suspension”
without justification, see
Dkt. 42 ¶¶ 51-53, 77.
Plaintiffs assert that the
UCB board was biased,
see Dkt. 42 ¶ 54(b).
Plaintiffs allege that
University acted
arbitrarily and
capriciously through
undertaking an impartial
investigation and
committing various
procedural errors without
sufficient review, see Dkt.
42 ¶¶ 71, 74(b) (impartial
investigation); 74(d)
(procedural errors).
Plaintiffs list alleged
procedural violations that
occurred during the UCB
hearing, see Dkt. 42 ¶¶
54(a)-(g)
State Action
Petitioners contend that
notations and holds on
transcripts may only be
applied in the Title IX
context, see Ex. A at ¶¶
71, 72.
Petitioners asset that the
Title IX charges were
“baseless and were a
pretext to improperly hold
their transcripts,” see Ex.
A at ¶ 73.
Petitioners assert that they
were placed under an
unauthorized “quasi-
suspension,” see Ex. A at
¶¶ 44-47
Petitioners claim that the
UCB board was biased,
see Ex. A at ¶ 82(c).
Petitioners claim that the
UCB committed
procedural errors and was
biased, see Ex. A at ¶¶
82(a)-(c).
Petitioners list a nearly
identical list of alleged
procedural violations, see
Ex. A at ¶¶ 48(a)-(g).
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And, as regards the ultimate relief they seek:

Federal Action State Action

Prayer for relief: Prayer for relief:

“A permanent injunction: “An Order and Judgment from this Court
a. Lifting any holds placed on Plaintiffs’ vacating and annulling the final
transcripts as a result of the disciplinary determinations made by [the University].”
process described above;
b. Allowing Plaintiffs to obtain official See Ex. A at 47.
transcripts without any disciplinary
notations;
c. Restoring Plaintiffs to their pre-existing
good academic standing;
d. Prohibiting Defendants from otherwise
impeding Plaintiffs’ right to transfer to other
institutions.”

See Dkt. 42 ¶ 37.

Practical Result: Practical Result:
Return students to good academic standing Return students to good academic standing
and provide them the ability to obtain a and provide them the ability to obtain a clean
clean transcript. transcript.

Almost two months prior to Plaintiffs’ initiation of the State Action, this Court rejected

Plaintiffs’ motion for a preliminary injunction ordering Defendants to return Plaintiffs to good

academic standing with clean transcripts. In so ruling, this Court determined that “Plaintiffs have

certainly not shown that their positions with regard to these issues constitute a clear or substantially

likelihood of success on the merits. Dkt. 24 at 10.

On August 27, 2018, the State Court indicated that it intended to grant Plaintiffs’ Order to

Show Cause and order the University to readmit Plaintiffs immediately—including permitting

Plaintiffs to enroll in classes—pending a hearing on September 19, 2018. See Ex. B to the French

Declaration.

ARGUMENT

The All Writs Act grants federal courts authority to “issue all writs necessary or appropriate

in aid of their respective jurisdiction and agreeable to the usages and principles of law.” 28 U.S.C.

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§ 1651(a). As the Second Circuit has recognized, the All Writs Act must be “read in tandem with

the Anti–Injunction Act,” United States v. Schurkman, 728 F.3d 129, 135 (2d Cir. 2013), which in

turn provides that a federal court “may not grant an injunction to stay proceedings in a State court

except [1] as expressly authorized by Act of Congress, or [2] where necessary in aid of its

jurisdiction, or [3] to protect or effectuate its judgments,” 28 U.S.C. § 2283 (emphasis added). The

Second Circuit has held that “[n]othing in the concluding phrase of 2283—which authorizes

injunctions against state-court proceedings when necessary ‘to protect or effectuate’ federal-court

judgments—limits its scope to final judgments.” Sperry Rand Corp. v. Rothlein, 288 F.2d 245,

248-49 (2d Cir. 1961).

A straightforward application of the All Writs Act as modified by the Anti-Injunction Act

prohibits Plaintiffs from enforcing any relief they have received in the State Action against

Defendants here. Having been denied a preliminary injunction in this Court, Plaintiffs have now

moved on the exact same substantive grounds in the State Court, in attempt to subvert this Court’s

authority and defy its judgment regarding the appropriateness of emergency relief. Absent a grant

of the relief Defendants’ seek, this Court’s judgment will be effectively overruled.

It is no answer, moreover, for Plaintiffs to claim that they could not have used the Article

78 vehicle they have employed in the State Action in federal court. In Doe v. Zucker, No.

117CV1005GTSCFH, 2018 WL 3520422, at *8 (N.D.N.Y. July 20, 2018), Chief Judge Suddaby

held that the district court had jurisdiction over a plaintiff’s Article 78 claims, and thus that they

“were removable” to federal court where the other claims asserted in the plaintiffs’ action “fall

within the court’s original jurisdiction” and those claims “derive from a common nucleus of

operative fact” with the Article 78 claim. Id. (quoting Residents & Families United to Save Our

Adult Homes v. Zucker, 16-CV-1683, 2017 WL 5496277, at *11-13 (E.D.N.Y. Jan. 24, 2017)).

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Other case law is in accord, concluding that “[s]pecial proceedings under Article 78 of the CPLR

… have been heard in federal court where diversity jurisdiction exists.” Cruz v. T.D. Bank, N.A.,

No. 10 CIV. 8026 PKC, 2014 WL 1569491, at *3 (S.D.N.Y. Apr. 17, 2014) (citing Casale v.

Metro. Transp. Auth., 05 Civ. 4232 (MBM), 2005 WL 3466405, at *7 (S.D.N.Y. Dec. 19, 2005);

Elite Med. Supply of New York, LLC v. State Farm Mut. Ins. Co., 13–CV–918–A, 2014 WL 823439

(W.D.N.Y. Mar. 3, 2014) (“Congress has never excluded disputes of the kinds within an Article

78 proceeding, or any similar state-law proceeding, from the subject matter jurisdiction of federal

courts.”). Plaintiffs thus have no justifiable basis for the duplicative claim-splitting in which they

are engaged.

Further, Plaintiffs previously represented that they would adding an Article 78 claim to this

action. On July 27, 2018, Defendants sought an extension to Answer or otherwise respond to the

Amended Complaint in light of a representation by Plaintiffs’ counsel that Plaintiffs intended to

add an Article 78 claim to the this action once their appeals before the University Appeals Board

became final:

We have conferred with opposing counsel who has indicated that Plaintiffs intend
to add an additional claim to their Complaint. In that regard, the disciplinary
proceedings that form the basis for this action became final on or about July 26,
2018, when Plaintiffs received notice of the confirmation of the University’s
decision on their respective appeals. As a result, I understand that Plaintiffs intend
to add an additional claim to the pleadings under Article 78 of the CPLR.

See Dkt. 35 (emphasis added). The representations in this letter request were run by, and approved

by, Plaintiffs’ counsel in advance. Inexplicably, Plaintiffs split off the Article 78 claim and

instituted a separate action in Jefferson County Supreme Court, which, as indicated above, contains

the exact same substantive contentions. And, instead of seeking reconsideration of this Court’s

prior ruling, Plaintiffs, and their counsel, sought a fresh audience for the same preliminary

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injunction arguments they made before this Court.

Nothing of any relevance has changed relative to the merits of this dispute since this

Court’s prior order denying Plaintiffs’ prior motion for a Preliminary Injunction resulting in

Plaintiffs’ suspensions remaining in effect. Procedurally, all that has happened is that the appeals

have been decided—the merits have not changed. This Court should rightfully take action in

response to Plaintiffs’ attempt at impermissible forum shopping. In addition to harming the

integrity and enforceability of this Court’s prior orders, and undermining the Court’s consideration

of two pending motions in this matter, the state court TRO is mandatory in nature—i.e., it orders

relief that disrupts the status quo—and it will irreparably harm the University and the University

community, including the student body. See French Decl. attached hereto as Ex. C.

CONCLUSION

Defendants respectfully request the Court grant the emergency relief they seek.

Dated: August 27, 2018 Respectfully submitted,

s/John G. Powers
_______________________
John G. Powers

JENNER & BLOCK LLP HANCOCK ESTABROOK, LLP

David W. DeBruin (pro hac vice) John G. Powers (Bar Roll #: 508934)
Ishan K. Bhabha (pro hac vice) Paul J. Tuck (Bar Roll #: 520814)
1099 New York Avenue, N.W., AXA Tower I, Suite 1500
Suite 900 100 Madison Street
Washington, DC 20001-4412 Syracuse, NY 13202
(202) 639-6015 (315) 565-4500
ddebruin@jenner.com jpowers@hancocklaw.com

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on August 27, 2018, I electronically filed the foregoing with the Clerk

of Court, to be served on all parties of record via the CM/ECF system.

By: s/ John G. Powers

John G. Powers

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