Alan Gura From: Alan Gura

To: Page 2 of 4 2010-11-0518:05:25 (GMT)

Case 7:10-cv-05413-CS Document 17 Filed 11/08/10 Page 1 of 4

G
&P
fk,~~tu.~
~ 1Vw·~S.Sf~ I~~{ID~'J
~-'GUM ~.1'.6~S-}<-Y~2,-
. P~.L-;,!:-~_.C-·H~._JV..A( (,tAfP\ Joe) ­ i ,e. [rL
101 N. COLUMBUS SUITE 405 (fJa<t.J;, r -IMk~.. ArJu ~(
ALEXANDRIA, VrRGINIA 22314 ~ v:"'~', (
Ta. 701.8J5.9085/FAX 703.997.7665 ~Jt).. GfA.AjJ/~ Gov\~
Novem bed, 2010 k I1M>Thm 10 l.£..fIlWSl>, 7U U>.J- k
<All
~ vvJf w ~ ~ ~~ t 'te-j~ i4 ~
:tA Ctltvtt(.+ k ~yJ rc.u~ . JW( ()l.1k
The Hon. Cathy Seihel
United States District Court Judge U\A/J..1) .....

Cnited States Courthouse ~~... ~OO t·O ~", r·

ihlM ~ (~.fbKl\i.r) (/'ft. (1) ~
I

300 Quarropas Street ~~ ::,~ ~ I ~ ~ ~ 1li.r.t. ~ Jl JI./LIIIU!id

White Plnins, NY 1060 I 150 11\'1 \\0" Oft,Q Tk ~ ~ ~ 1'"1""'-:- ~ ) '~

VIA FAX TO 914.390.4278 '}OiA 'k Mr~ ~ ~ ~ ~
, <l~~{~W~~/~~~ ~
Re: Kac:haisky v. Cacase h . A ... A. Q ,J, .. to ~ d' ll£
lJ.s, Dis!. Ct" S,D,N, Y, 1O-CV-S413-CS """'lw":",,,>~~
Dear Judge Seibel: ~:::;l;;t- ~ \*I\O,t1~
The latest requests by Defendants to vacate the briefing schedule. apparently without ~
m,eeting and conferring and without proposing an altemative, are not well-taken. These issueslUM..i ~
have already been resolved by the Court, and any additional delays at tllis point would be '" ··U ~
excessive ana prejudicia.l to Plaintiffs. ~ l\L
It is impOl'trult to recall the background against which these latest requests are maoe,~'
The parties originally agreed on a briefing schedule amongst themselves, and had v\IlDh"fTA {fV\
prepared a joint letter submitting the same to the Court. but at the last moment, the Attorney ~
General's Office withdrew its consent to that schedule because it suddenly decided that it would ~ h
not consent to allo""ing Plaintiffs to file a motion for summary judgment. Subsequently, the ~ {il~
pmties appeared betore the Court at the September 7 status conference, and a briefing schedule nitA ~
was readily agreed to. Jtw.).A I~\ {..
. .pM.~
During that stntus conference, as the Court may recall, the issue arose oftlle State ~ iU­
Ol!fendants' theory that the individual plaintiffs could not complain about their pennit I~ I Q ~~
application denials, as these were denied prior to the Supreme Court's decision in McDonald v~ ~" i~
City of Chicago, 130 S. Cl. 3020 (2010). Deiendanl<; suggested that the outcome ofthe ~ ;J,.
applications would have been differen.t had Plaintiffs applied post-McDonald, 1_ ')v.. ~~ ~
ooat»i\1"'" l'" ~v~. ~
Plaintiffs responded that the Detendantq have n ianged their practlMs in the wake of CJNv· . .
McD~nald, t:1t~ ~tattlte being ~hal1e~lged here has ~~t been arr: .ed, and in fa.c( J)efendant~ are ~~~
invokmg Plamtlff Kachalsky's demal to deny addItmnal apphcatlO . Indeed. Defendants dtd not~~ I
remedy their denials of the Plaintiffs' apPlications'~l':"L ~ (Z...tc::'" /1 ~~t? ~ "2..
tlML 4
~ ~ P\./fJ1/'A f'.~.('I0\( WtOn~ r rs '"'VJ 1.-- r~\,"?~~~W~A..J
~ ~ u. ., *_R~.s·~ (f\ C~";~ {AY'Wr
iWrCAr:rnJ:~ 'n;: ;~;~' \)~'U1~c_QtaA~, lJlO~
lIV v~ ,~, ~~~~I""'" ~ f'~
L£W"1 (j.5AJjn/~IIJ ~J2C(-jA'1:l ~
 Alan Gura From: Alan Gura
2010-11-05 18:05:25 (GMT)
To: Page 3 of 4
Case 7:10-cv-05413-CS Document 17 Filed 11/08/10 Page 2 of 4

The I-fon. Cathy Seibel

Page ·1wo

Plaintiffs proposed a solution, accepted by the COLIn and by all Defendants: that they
move to amend the complaint to add parties denied post-]vlcDonald. The Court granted the
motion, giving Plaintiffs until the deadline for the motion 10 dismiss to amend the complaint
This arrangement was contlrmed in the endorsed letter extending tLle deadline for both
amendment and the motions to dismiss.

In other words, everyone understood and agreed that the amendment would relate
primarily to the post-A1cJ)onald argument. And that is exactly what has now accun'ed: Plaintiffs
added three additional co-Plaintiff:; who were denied licenses to eany firearms post-McDonald
by Westchester County licensing officials. There is no other substantive amendment to the
complaint: it lays out the exact same theories and arguments laid out previously_

Accordingly, the alleged problems raised by Defendants are not new. The Court has
already addres.sed them at the September 7 hearing, ~md in its order. Defendants would have had
a point had Plaintiff.') asserted new legal theories or involved third-party defendants (perhaps
lken~ing officials from other cotmties). But there is nothing in the amended complaint that
should alter Defendants' substantive arguments. Plaintiff." have adhered to the Court's order, and
expect Defendants - who agreed to this arrangement to now do the same.

Although Defendants asked forth1s amendment by asserting their post-.McDonald

defense, and they received their amendment within the time to which they had agreed, the
prejudice to Plaintiffs and counsel flowing from any alteration of the schedule would be
significant. On October 5, [he Attomey General's Office requested Plaintiffs' consent for an
additional month to file its brief, citing a need for multiple levels ofintemal review, I could not
agree to a full month extension for two reasons; (1) the delay would be excessive Rule 12
ordinarily provides for a 3 week responsive period, and we had already agreed to 14 weeks; and
(2) it would stati our response time in the middle of an important long-planned overseas trip that
could not be rescheduled.

Notwithstanding the Attomey General's Office's previous lack of reciprocal courtesy on

the summary judgment schedule, to accommodate tllat office, I agreed to a compromise that
cflcctively cut our response time in half: the Attorney General's Office would serve its brief on.
November 5 instead of October 22~ and our opposition would be extended trom November 12 to
the 15th , The Court subsequently adopted this modified schedule.

At no point d\lring the conversations relating to this last modification did counsel indicate
that he would want additional pages. But last week, counsel obtained permission to dOllbJc the
size of his brief. So we face the prospect of having agreed to half the time - to respond to double
the brief, and we are already looking at having a responsive pleading served on November 5, for
a case filed July 15 - 92 days versus Rule 12's 2 I-day standard.
 Alan Gura From: Alan Gura
2010-11-0518:05:25 (GMT)
To: Page 4 of 4
Case 7:10-cv-05413-CS Document 17 Filed 11/08/10 Page 3 of 4

The Hon. Cathy Seibel

Page -111rec

And now, evcn though we had an agreement that the amendment could be served
concutTCntly with the motion to dismiRs, given the purpose ofthe amendment and the fact it
raises nothing new, Defendants ask that this delayed schedule is to be dispensed with
indefinitely. They do not propose a new schedule. The request js dilatory and lacks any ba::;is.

Also not '\vell-taken is the Connty's assertion that it needs to be served with the amended
complaint. T1le County has appeared ill this case and counsel for the county is receiving
electronic notice of all filings. Obviously the County has received the amended complaint, which
asserts nothing new against the County - just that it applied the same practice and policy against
the new plaintiffs, just a') it applies this practice and policy against everyone. If the County would
ignore the amended complaint, Plaintiffs would request entry of default.

It is hoped that the Attomey Genera]' s Office would agree to accept service and appear
for the new defendants, as there is no need to place them on duplicate tracks. If the Attomey
General insist,:> on service of a summons for the new defendant licensing officers, it should not be
heard to come back .., for a fourth time - and ask again for a briefing modification. \Vithout
acceptance of service by the Attorney General for the new defendants, Plaintiffs caonol agree to
any extension beyond Rule 12'stwenty-one day responsive period.'

r have worked repeatedly ""ith opposing counsel to agree on a hricfmg schedule for this
casco Time and again, however, I am surprised. by new understandings: theinilial ""ithdrawal
from the scheduling agreement, the request for extension to which I responded by significantly
reducing our responsive time, the doubling of the page limit, and now the desire to dispense with
our previous agreement (and the Court's order) altogether. But I must maintain my calendar, and
my clients deserve to have their case considered without additional, indefinite delay.

Thank you in advance for your consideration. All parJes will receive a copy ohhis letter
simultaneously via facsimile transmission.

<.:~: Anthony J. Tomari (via fax to 212.416.6075)

Melissa-Jean Rolini (via fax to 914.995.3132)

Vincent Gelardi (via fax to 914.253.09(9)

11 had advised counsel that his post-]'v.!cDonald defense would likely trigger the
involvement of additional defendants with no net benefit to his position.
 2010-11-0518:05:25 (GMT) Alan Gura From: Alan Gura
To: Page 1 of 4
Case 7:10-cv-05413-CS Document 17 Filed 11/08/10 Page 4 of 4

FACSIMILE COVER SHEET

From: Alan Gura

Gura & Possessky, PLLC (703.835.9085IFax 703.997.7665)

To: The Hon. Cathy Seibel, 914.390.4278

Cc: Melissa-Jean Rotinl, 914.995.3132

Anthony J. Tomari, 212.416.6075
Vincent Gelardi. 914.253.0909

Re: Kachalsky v. Cacase, No. lO-CV-5413-CS

Four pages including this cover sheet