U.S. District Court Northern District of New York (Albany) CIVIL DOCKET FOR CASE #: 00-CV-1201 Margan, et al v. McKenna, et al Filed: 08/08/00 Assigned to: Judge David N. Hurd Jury demand: Plaintiff Referred to: Magistrate Judge Randolph F. Treece Demand: $25,000 Nature of Suit: 440 Lead Docket: None Jurisdiction: Federal Question Dkt# in other court: None Cause: 28:1331 Fed. Question: Civil Rights Violation FRANK J. MARGAN, Individually Kevin A. Luibrand and as the Natural Parent and Fax: 518-463-7489 Guardian His Infant Children [COR LD NTC] plaintiff Tobin, Dempf Law Firm 33 Elk Street Albany, NY 12207 518-463-1177 TAMMY MARGAN, Individually and Kevin A. Luibrand as the Natural Parent and (See above) Guardian of Her Infant [COR LD NTC] Children plaintiff JOHN M. MARGAN, Individually Kevin A. Luibrand and as the Natural Parent and (See above) Guardian of His Infant [COR LD NTC] Children plaintiff DOREEN M. MARGAN, Individually Kevin A. Luibrand and as the Natural Parent and (See above) Guardian of Her Infant [COR LD NTC] Children plaintiff "A" MARGAN Kevin A. Luibrand plaintiff (See above) [COR LD NTC] "E" MARGAN Kevin A. Luibrand plaintiff (See above) [COR LD NTC] JEFFREY MARGAN, Individually Kevin A. Luibrand and as the Natural Parents and (See above) Guardians of His Infant [COR LD NTC] Children plaintiff PAUL M. MAHAN, Individually Kevin A. Luibrand and as the Natural Parent and (See above) Guardian of His Infant [COR LD NTC] Children plaintiff ANTHONY PELLEGRINO, Kevin A. Luibrand Individually and as the (See above) Natural Parent and Guardian of [COR LD NTC] His Infant Children plaintiff CLARK S. LOUER, Individually Kevin A. Luibrand and as the Natural Parent and (See above) Guardian of His Infant [COR LD NTC] Children plaintiff MARY ELLEN LOUER, ndividually Kevin A. Luibrand and as the Natural Parent and (See above) Guardian of Her Infant [COR LD NTC] Children plaintiff "S" LOUER Kevin A. Luibrand plaintiff (See above) [COR LD NTC] "T" LOUER Kevin A. Luibrand plaintiff (See above) [COR LD NTC] MICHAEL GOGUEN Kevin A. Luibrand plaintiff (See above) [COR LD NTC] NANCY GOGUEN Kevin A. Luibrand plaintiff (See above) [COR LD NTC] EILEEN PELLEGRINO Kevin A. Luibrand plaintiff (See above) [COR LD NTC] v. KEITH MCKENNA, Individually Joseph D. Giannetti and as an Agent and/or Fax: 518-843-0339 Employee and Police Officer of [COR LD NTC] the Town of Glenville Horigan, Horigan Law Firm defendant P.O. Box 520 49 East Main Street Amsterdam, NY 12010 518-843-0043 TOWN OF TOWN OF GLENVILLE, NEW Joseph D. Giannetti YORK [term 03/13/01] defendant (See above) [COR LD NTC] John Petrone Fax: 315-735-5368 [COR LD NTC] David A. Bagley, NAM FAX 315-735-5368 [COR LD NTC] Petrone, Petrone Law Firm 1624 Genesee Street Utica, NY 13502 315-735-7566 WILLIAM P. NILES Michael Louis Koenig defendant Fax: 518-462-2670 [COR LD NTC] O'Connell, Aronowitz Law Firm 54 State Street 9th Floor Albany, NY 12207-2501 518-462-5601 RUSSELL GARTH JOHNSTON Joseph F. Donnelly, DECEASED defendant [term 06/04/03] Fax: 518-437-0040 [COR LD NTC] Office of Joseph F. Donnelly 4 Tower Place Executive Park Tower Albany, NY 12203 518-459-7683 Russell Garth Johnston 10228-052 [COR LD NTC pse] Federal Medical Center, Devens P.O. Box 879 Devens, MA 01432 ======================== KEITH MCKENNA Joseph D. Giannetti cross-claimant Fax: 518-843-0339 [COR LD NTC] Horigan, Horigan Law Firm P.O. Box 520 49 East Main Street Amsterdam, NY 12010 518-843-0043 ------------------------- TOWN OF TOWN OF GLENVILLE, NEW Joseph D. Giannetti YORK [term 03/27/01] cross-defendant (See above) [COR LD NTC] John Petrone Fax: 315-735-5368 [COR LD NTC] Petrone, Petrone Law Firm 1624 Genesee Street Utica, NY 13502 315-735-7566 WILLIAM P. NILES cross-defendant RUSSELL GARTH JOHNSTON Joseph F. Donnelly, DECEASED cross-defendant [term 04/18/03] Fax: 518-437-0040 Office of Joseph F. Donnelly 4 Tower Place Executive Park Tower Albany, NY 12203 518-459-7683 Russell Garth Johnston 10228-052 [COR LD NTC pse] [PRO SE] Federal Medical Center, Devens P.O. Box 879 Devens, MA 01432 ======================== TOWN OF TOWN OF GLENVILLE, NEW Joseph D. Giannetti YORK [term 03/13/01] cross-claimant Fax: 518-843-0339 [COR LD NTC] Horigan, Horigan Law Firm P.O. Box 520 49 East Main Street Amsterdam, NY 12010 518-843-0043 John Petrone Fax: 315-735-5368 [COR LD NTC] David A. Bagley, NAM FAX 315-735-5368 [COR LD NTC] Petrone, Petrone Law Firm 1624 Genesee Street Utica, NY 13502 315-735-7566 ------------------------- KEITH MCKENNA Joseph D. Giannetti cross-defendant (See above) [COR LD NTC] WILLIAM P. NILES cross-defendant RUSSELL GARTH JOHNSTON Joseph F. Donnelly, DECEASED cross-defendant [term 04/18/03] Fax: 518-437-0040 Office of Joseph F. Donnelly 4 Tower Place Executive Park Tower Albany, NY 12203 518-459-7683 Russell Garth Johnston 10228-052 [COR LD NTC] [PRO SE] Federal Medical Center, Devens P.O. Box 879 Devens, MA 01432 8/8/00 1 COMPLAINT filed; FILING FEE $ 150.00 RECEIPT # 47876 ; Service deadline 10/7/00 for Town of Glenville, for Keith McKenna (wbl) [Entry date 08/16/00] 8/8/00 -- SUMMONS(ES) issued for Keith McKenna, Town of Glenville (wbl) [Entry date 08/16/00] 8/8/00 -- Filing Order Issued; Conference set before Magistrate Judge Ralph W. Smith in Albany, Status Conference at 10:30 12/6/00 , Deadline for filing Case Management Plan, 11/21/00 (wbl) [Entry date 08/16/00] 8/18/00 2 ACKNOWLEDGEMENT OF SERVICE as to Town of Glenville on 8/14/00: Answer due on 9/3/00 for Town of Glenville (jel) 8/29/00 3 ACKNOWLEDGEMENT OF SERVICE as to Keith McKenna on 8/15/00: Answer due on 9/4/00 for Keith McKenna (jel) [Entry date 08/31/00] 9/1/00 4 ANSWER to Complaint by Keith McKenna, Town of Glenville (Attorney Joseph D. Giannetti), (jel) [Entry date 09/05/00] 9/20/00 5 REMINDER NOTICE by Judge Ralph W. Smith, Jr. stating the case management plan must be received in chambers no later than 5 business days prior to the scheduled date of the conference. (jel) 9/22/00 6 Proposed Joint Civil Case Management Plan Submitted. (jel) [Entry date 09/25/00] 12/6/00 7 Minute entry: Court Reporter/ECRO: none; Rule 16 Conf held; dates set (except for trial date); order to be mailed to counsel. (rzh) [Entry date 12/08/00] 12/6/00 9 ORDER, that within thirty (30) days of the date of this Order, the parties in the above captioned case shall comply with the initial disclosure provisions of FRCP 26(a)(1) as amended effective 12/1/00 (signed by Magistrate Judge Ralph W. Smith Jr. on 12/6/00) (jel) [Entry date 12/11/00] 12/6/00 10 ORDER, that defense counsel shall within ten (10) days fo the date of this Order send a copy of this Order and a letter to each client in this action (a) outlining the circumstances under which an actual or potential conflict of interest may arise, and (b) advising whether counsel plans to take a position adverse to that client'sinterests at trial, within sixty (60) days of the date of this Order, a defendant who is jointly represented with other defendants by a single attorney or law firm shall proceed in one of the two ways described in subparagraphs A or B; A: if defendant wishes to retain separate counsel, the new counsel shall file and serve a notice of appearance within sixty (60) days of the date of this Order; B: If defendant retains current counsel, defendant needs to submit sworn affidavit (a) acknowledging that has been given written notice by counsel of the potential conflict; (b) understands potential conflict and its ramifications; (c) knowingly and voluntarily chosen to proceed with joint representation; this must be submitted to chambers within sixty (60) days of the date of this order and will befiled under seal; deft. shall file and serve a notice of in camera submission regarding joint representation, if option 2(b) is selected, the court will review defense counsel's letter of notification and defendant's affidavit ex parte and in camera to determine if the defendant has knowingly and voluntarily waived the right to separate counsel, If the conflict of a nature is which can be waived and a defendant's waived of the potential conflict is knowing and voluntary, the court will allow deft. to proceed with joint representation, if not knowing and voluntarily waived right to separate counsel, the court shall order further action necessary to safeguard the integrity fo these proceedings, no extension of deadlines will be granted because of substitution unless resulting from a conflict of interest which could have not bee forseen (signed by Magistrate Judge Ralph W. Smith Jr. on 12/6/00) (jel) [Entry date 12/11/00] 12/8/00 8 Uniform Pretrial Order; Length of Trial: 5 days; Trial Location: Albany; Joining of Parties Deadline 3/1/01 ; Amending of Pleadings Deadline 3/1/01 ; Discovery Deadline 6/1/01 ; Motion Filing Deadline 9/1/01 ; Trial ready deadline 9/1/01 ( Signed by: Magistrate Judge Ralph W. Smith Jr. ) (rzh) 2/28/01 11 AMENDED COMPLAINT by Frank J. Margan, Tammy Margan, John M. Margan, Doreen M. Margan, "A" Margan, "E" Margan, Jeffrey Margan, Paul M. Mahan, Anthony Pellegrino, Clark S. Louer, Mary Ellen Louer, "S" Louer, "T" Louer, Michael Goguen, Nancy Goguen, Eileen Pellegrino against William P. Niles, Garth russell Johnston, Service deadline 4/29/01 for Garth russell Johnston, for William P. Niles, for Town of Glenville, for Keith McKenna , amends [1-1] complaint (jel) 2/28/01 -- SUMMONS(ES) issued for Keith McKenna, Town of Glenville, William P. Niles, Garth russell Johnston (jel) 3/5/01 12 ANSWER by Keith McKenna (Attorney Joseph D. Giannetti) to amended complaint (jel) [Entry date 03/07/01] 3/5/01 12 CROSSCLAIM by Keith McKenna against Town of Glenville, William P. Niles, Garth russell Johnston (jel) [Entry date 03/07/01] 3/16/01 14 Court Scheduling Notice dated 3/16/01 by Judge Ralph W. Smith, Jr. stating the discovery deadline is 6/1/01. Plaintiff's counsel is directed to submit a letter w/in 10 days concerning status of case, summary of discovery and settlement discussions. setting Status Report deadline to 3/30/01 (jel) [Entry date 03/19/01] [Edit date 03/20/01] 3/27/01 14 ORDER, to Substitute Attorney terminated attorney Joseph D. Giannetti for Town of Glenville Added John Petrone (signed by Magistrate Judge Ralph W. Smith Jr. on 3/26/01) (jel) [Entry date 03/28/01] 4/9/01 15 ANSWER by Town of Glenville (Attorney David A. Bagley) to amended complaint (jel) 4/9/01 15 CROSSCLAIM by David A. Bagley, Esq., for Town of Glenville against Keith McKenna, William P. Niles, Garth Russell Johnston (jel) 4/26/01 16 LETTER REQUEST of Kevin A. Luibrand dated 4/25/01 and ORDER, reset Discovery deadline to 9/1/01 ( signed by Magistrate Judge Ralph W. Smith Jr., 4/26/01 ) (ldi) [Entry date 04/27/01] 5/2/01 17 ACKNOWLEDGEMENT OF SERVICE as to William P. Niles on 4/20/01: Answer due on 5/10/01 for William P. Niles (jel) 5/11/01 18 LETTER REQUEST dated 5/1/01 by Joseph D. Giannetti, Esq., and ORDER, to extend the motion filing deadline and the trial deadline, resetting Dispositive Motion Filing deadline to 12/1/01, resetting trial ready deadline for 12/1/01, Trial date to be set by Judge Hurd at a Final Pretrial Conference; Jury Trial (signed by Magistrate Judge Ralph W. Smith Jr. on 5/8/01) (jel) 6/6/01 19 ANSWER to Complaint by William P. Niles (Attorney Michael Louis Koenig), (jel) [Entry date 06/07/01] 6/14/01 20 CERTIFICATE OF SERVICE of answer served upon Kevin Luibrand, Esq. on 6/6/01 (ldi) [Entry date 06/15/01] 8/29/01 21 Court Scheduling Notice dated 8/28/01 by Lynda A. Hennessy, Judicial Assistant, to Judge David R. Homer setting Telephone Conference for 10:30 a.m. on 8/30/01. Telephone conference to be initiated by defendant Niles' counsel. (jel) 8/30/01 -- Tele-conference held before Judge David R. Homer (jel) [Entry date 09/06/01] 9/5/01 22 AFFIDAVIT by Michael L. Koenig, Esq., for William P. Niles Re: co-defendant representation and deposition of plaintiffs. (jel) [Entry date 09/06/01] 9/5/01 23 Letter dated 8/24/01 by Kevin Luibrand, Esq., for the plaintiffs requesting conf. to discuss extension of discovery deadlines and/or alternatively for an order to compel defts appearance at depositions. (jel) [Entry date 09/06/01] 9/5/01 24 Letter dated 8/27/01 by Michael Koenig, Esq., for William Niles requesting the discovery deadline be extended after the criminal trial date. (jel) [Entry date 09/06/01] 9/5/01 25 ORDER, to Amend [8-1] uniform pretrial scheduling order, resetting Discovery deadline to 12/1/01, resetting Motion Filing deadline to 3/1/02, resetting trial ready deadline for 3/1/02 (signed by Magistrate Judge David R. Homer on 9/5/01) (jel) [Entry date 09/06/01] 9/25/01 26 ORDER: case reassigned to Mag. Judge Treece due to Judge Smith's retirement; (Signed by Chief Judge F. J. Scullin Jr.) (slg) 9/25/01 -- CASE NO LONGER REFERRED TO Magistrate Judge Ralph W. Smith Jr. (slg) 9/25/01 -- CASE REFERRED to Magistrate Judge Randolph F. Treece (slg) 11/9/01 27 ORDER, that the discovery in this matter is stayed pending the resolution of the criminal trials of defendants Niles and Johnston, Discovery deadline , that the attorneys for the defendants Niles and Johnston shall notify this Court immediately upon the conclusion of their trial or a resolution of the criminal charges filed against defendants at which time a conference will be set with the court to amend the discovery deadline contained in the UPSO, as amended (signed by Magistrate Judge Randolph F. Treece on 11/9/01) Date Entered: 11/9/01 (jel) 1/18/02 28 LETTER REQUEST dated 1/17/02 by Michael L. Koenig, Esq., and ORDER, to Amend [8-1] uniform pretrial scheduling order, resetting Discovery deadline to 4/1/02, resetting Motion Filing deadline to 7/15/02, resetting trial ready deadline for 7/15/02 (signed by Magistrate Judge Randolph F. Treece on 1/17//02) (jel) [Entry date 01/22/02] 4/4/02 29 LETTER REQUEST dated 3/25/02 by Kevin A. Luibrand, Esq., and ORDER, to Amend [8-1] uniform pretrial schedule order, resetting Discovery deadline to 6/1/02, resetting Motion Filing deadline to 9/15/02, resetting trial ready deadline for 9/15/02 (signed by Magistrate Judge Randolph F. Treece on 4/3/02) (jel) [Entry date 04/05/02] 8/7/02 30 Scheduling Notice:, set Final Pretrial Conference for 10:00 9/23/02 in Albany, NY with jury selection and trial to commence immediately thereafter, set Jury Trial for 10:00 9/23/02 Parties directed to file with the Clerk's office in Utica, NY before 9/13/02 proposed voir dire questions, requests to charge, exhibit list and witness list with brief statement. Any motions in limine and/or expert reports due before 9/16/02. (plm) 8/14/02 31 ORDER, that pltf.'s counsel shall serve copies of the requested documents to defense counsel by 8/14/02, reset Motion Filing deadline to 9/27/02--defts. shall serve any dispositive motions by 8/23/02 ( signed by Magistrate Judge Randolph F. Treece, 8/14/02) Date Entered: 8/14/02 (ldi) 8/20/02 34 MOTION by Town of Glenville for Summary Judgment , Hearing set for 10:00 11/22/02. Motion returnable before Judge Hurd. This motion was received by the Court on 10/24/02 but is considered filed as of 8/20/02 pursuant to the CJRA Reporting Requirements. (plm) [Entry date 10/25/02] [Edit date 10/25/02] 8/21/02 32 LETTER dated 8/20/02 by David A. Bagley, Esq., on behalf of Town of Glenville pursuant to Local Rule 7.1(b) regarding Motion: for summary judgment Date Served upon counsel: 8/20/02 (jel) [Entry date 08/22/02] 8/21/02 44 NOTICE OF MOTION by Joseph D. Giannetti, Esq., for Keith McKenna for Partial Summary Judgment, Hearing set for 10:00 a.m. on 11/22/02 Motion returnable before Judge/Mag. Judge: David N. Hurd. This motion was received by the Court on 10/23/02, but is considered filed as of 8/21/02, pursuant to the CJRA Reporting requirements instituted 3/1/00. (jel) [Entry date 10/25/02] 8/22/02 33 LETTER dated 8/21/02 by Joseph D. Giannetti, Esq., on behalf of Keith McKenna pursuant to Local Rule 7.1(b) regarding Motion: for partial summary judgment Date Served upon counsel: 8/21/02 (jel) [Entry date 08/23/02] 10/23/02 45 ATTORNEY'S AFFIDAVIT along with Exhibits A-S by Joseph D. Giannetti, Esq., for Keith McKenna Re: in support of the [44-1] motion for Partial Summary Judgment (jel) [Entry date 10/25/02] 10/23/02 47 Exhibits AA-FF by Joseph Giannetti, Esq., for Keith McKenna in regards to [45-1] Attorney Affidavit in support of the [44-1] motion for partial summary judgment. (jel) [Entry date 10/25/02] 10/23/02 48 Statement of Material Facts along with Exhibits 1-3 in Support of the [44-1] motion for Partial Summary Judgment filed by Joseph D. Giannetti, Esq., for Keith McKenna (jel) [Entry date 10/25/02] 10/23/02 49 MEMORANDUM OF LAW by Joseph D. Giannetti, Esq., for Keith McKenna in support of the [44-1] motion for Partial Summary Judgment (jel) [Entry date 10/25/02] 10/23/02 50 AFFIDAVIT along with Exhibits A-H by Kevin A. Luibrand, Esq., for Frank J. Margan, Tammy Margan, John M. Margan, Doreen M. Margan, "A" Margan, "E" Margan, Jeffrey Margan, Paul M. Mahan, Anthony Pellegrino, Clark S. Louer, Mary Ellen Louer, "S" Louer, "T" Louer, Michael Goguen, Nancy Goguen, Eileen Pellegrino Re: in opposition of the [44-1] motion for Partial Summary Judgment, in opposition of the [34-1] motion for Summary Judgment (jel) [Entry date 10/28/02] 10/23/02 51 Statement of Material Facts in opposition of the [44-1] motion for Partial Summary Judgment filed by Kevin A. Luibrand, Esq., for Frank J. Margan, Tammy Margan, John M. Margan, Doreen M. Margan, "A" Margan, "E" Margan, Jeffrey Margan, Paul M. Mahan, Anthony Pellegrino, Clark S. Louer, Mary Ellen Louer, "S" Louer, "T" Louer, Michael Goguen, Nancy Goguen, Eileen Pellegrino (jel) [Entry date 10/28/02] 10/23/02 52 Statement of Material Facts in opposition of the [34-1] motion for Summary Judgment filed by Kevin A. Luibrand, Esq., for Frank J. Margan, Tammy Margan, John M. Margan, Doreen M. Margan, "A" Margan, "E" Margan, Jeffrey Margan, Paul M. Mahan, Anthony Pellegrino, Clark S. Louer, Mary Ellen Louer, "S" Louer, "T" Louer, Michael Goguen, Nancy Goguen, Eileen Pellegrino (jel) [Entry date 10/28/02] 10/23/02 53 MEMORANDUM OF LAW by Kevin A. Luibrand, Esq., for Frank J. Margan, Tammy Margan, John M. Margan, "A" Margan, "E" Margan, Clark S. Louer, Mary Ellen Louer, "S" Louer, "T" Louer, Michael Goguen, Nancy Goguen, Eileen Pellegrino in opposition to the [44-1] motion for Partial Summary Judgment, in opposition to the [34-1] motion for Summary Judgment (jel) [Entry date 10/28/02] 10/23/02 54 REPLY AFFIDAVIT by Joseph D. Giannetti, Esq., for Keith McKenna to response to [44-1] motion for Partial Summary Judgment (jel) [Entry date 10/28/02] 10/24/02 35 Statement of Material Facts in Support of [34-1] motion for Summary Judgment filed by Town of Glenville (plm) [Entry date 10/25/02] 10/24/02 36 MEMORANDUM of Law by Town of Glenville in support of [34-1] motion for Summary Judgment (plm) [Entry date 10/25/02] 10/24/02 37 Plaintiffs' response to Statement of Material Facts in Support of filed by defendant Keith McKenna. (plm) [Entry date 10/25/02] [Edit date 10/25/02] 10/24/02 38 Plaintiffs' opposition to Statement of Material Facts in Support of [34-1] motion for Summary Judgment filed by Town of Glenville (plm) [Entry date 10/25/02] 10/24/02 39 AFFIDAVIT by Kevin A. Luibrand, Esq. on behalf of plaintiffs in opposition to Re: [34-1] motion for Summary Judgment (plm) [Entry date 10/25/02] 10/24/02 40 MEMORANDUM of Law by plaintiffs in opposition to [34-1] motion for Summary Judgment (plm) [Entry date 10/25/02] 10/24/02 41 REPLY Affidavit by Town of Glenville to response to [34-1] motion for Summary Judgment (plm) [Entry date 10/25/02] 10/24/02 42 Reply MEMORANDUM of Law by Town of Glenville in support of [34-1] motion for Summary Judgment (plm) [Entry date 10/25/02] 10/25/02 43 LETTER REQUEST dated 10/24/02 by Kevin A. Luibrand, Esq., and ORDER, to extend the motion filing deadline, resetting Motion Filing deadline to 10/31/02 (signed by Magistrate Judge Randolph F. Treece on 10/24/02) (jel) 10/25/02 46 Exhibits T-Z by Joseph Gianetti, Esq., for Keith McKenna in regards to [45-1] Attorney Affidavit is support of the [44-1] Motion for Partial Summary Judgment. (jel) 10/28/02 55 Court Scheduling Notice dated 10/28/02 by John Law, Deputy Clerk, rescheduling Defendant McKenna's Notice of Motion for Partial Summary Judgment from 10/25/02 at 10:00 a.m. until 11/22/02 at 10:00 a.m. before Judge David N. Hurd in Albany. (jel) 11/13/02 56 Copy of clerk's Scheduling Notice to counsel: oral argument on defts' [34-1] and [44-1] summary judgment motions will be heard at 11:00 on 11/22/02 in Albany (cbm) [Entry date 11/14/02] 11/25/02 57 Minute entry of motion hearing held on 11/22/02 in Albany, NY before Judge David N. Hurd: Court Reporter: Bonnie Buckley. Appearances: Kevin Luibrand for pltfs.; Joseph Giannetti for deft. McKenna; David Bagley for deft Town of Glenville. 1) Deft Town of Glenville's motion for summmary judgment (34-1) DECISION RESERVED. Ct. to issue written decision. 2) Deft. McKenna's motion for partial summary judgment (44-1) DECISION RESERVED. Ct. to issue written decision. (plm) [Entry date 11/26/02] 3/18/03 58 MEMORANDUM-DECISION and ORDER that the First Cause of Action is DISMISSED as to pltf Frank Margan, Tammy Margan, Clark S. Louer, Mary Ellen Louer, "S" Louer, Michael Goguen, and Nancy Goguen; that the Second Cause of Action is DISMISSED in its entirety as to all defts; that the Third Cause of Action is DISMISSED as to defts McKenna and Glenville; that the Fourth Cause of Action is DISMISSED in its entirety as to all defts; that the Fifth Cause of Action is DISMISSED in its entirety as to all defts. As a result of this decision, the pltfs John M. Margan, Doreen M. Margan, "A" Margan, "E" Margan, Jeffrey Margan, Paul M. Mahan, Anthony Pellegrino, and Eileen Pellegrino may continue to maintain their First Cause of Action under the DPPA against Niles, Johnston, McKenna, and Glenville. All pltfs may continue to maintain their Third Cause of Action for intentional infliction of emotional distress against Niles and Johnston. (signed by Judge David N. Hurd) Date Entered: 3/18/03 (see) [Edit date 03/18/03] 3/26/03 59 Scheduling Notice:, set Telephone Status Conference for 11:00 4/2/03 (plm) 4/2/03 -- Status conference held before Judge Hurd. (see) [Entry date 04/28/03] 4/4/03 60 Scheduling Notice advising the parties that a Settlement Conference is scheduled for 1:00 pm on 4/25/03 in Albany, NY before Judge Hurd. Parties instructed to submit a concise Ex Parte Letter outlining their respective positions on settlement by 4/21/03, for Judge Hurd's use at the conference. (Signed by CRD Craig Minor) (see) 4/4/03 61 Minute entry of a TeleConference held on 4/2/03 before Judge Hurd, APPR: Kevin Luibrand, Esq for the pltfs; Joseph Giannetti, Esq, David Bagley, Esq, and Aaron Louridas, Esq for all defts except deft Johnston. Atty Joseph Donnelly deceased. Atty Luibrand to advise Court regarding deft Johnston's whereabouts and representation as he is incarcerated. Deft Niles also incarcerated and to be released soon; parties to advised Court regarding deft Niles' release date. Settlement conference scheduled for 4/25/03 at 1 pm in Albany, NY. Ex parte letters regarding settlement to be submitted by 4/21/03. [11:00-11:15]; Court Clerk: Craig Minor. (see) 4/18/03 62 Letter to Judge Hurd from Kevin Luibrand, Esq., advising that since attorney Donnelly's death, deft Johnston will need new counsel; advising that deft Johnston's capital region address is 82 Charlton Road, Ballston Lake, NY, and that he is currently incarcerated at FCI Devens, MA. (cbm) 4/25/03 -- Settlement conference held before Judge Hurd. (see) [Entry date 04/28/03] 4/28/03 63 Minute entry of a Settlement Conference before Judge Hurd on 4/25/03, APPR: Kevin Luibrand, Esq for pltfs; David Bagley, Esq, Aaron Louridas, Esq, and Timothy Horigan, Esq for the defts. Court and counsel meet and discuss terms of partial settlement agreement. Pltf to serve defts with written demand and provide copy of same to Court; defts to submit written offer to pltfs and copy of same to the court within 10 days after receipt of demand. Action to proceed against defts Johnston & Niles. Court to contact Johnston regarding his legal representation at trial and issue writ of habeas corpus ad testificadum to determine if pro bono counsel should be assigned. Trial date to be issued thereafter. [1:45-2:45]; Court Clerk: Craig Minor (see) [Edit date 05/05/03] 4/28/03 64 Letter/NOTICE dd 4/28/03 by the Court addressed to deft Russell Garth Johnston, stating that in light of the recent death of deft's atty Joseph Donnelly, the deft has 14 days to inform the Court of the name and address of substitute counsel and have the atty file a notice of appearance with the Court. (Signed by CRD Craig Minor) (see) [Entry date 04/29/03] 5/6/03 65 Letter/NOTICE dd 5/1/03 by deft Russell Garth Johnston, in response to the Court's [64-1] Letter/Notice of the death of the defts atty. The deft intends to proceed pro se. (see) 6/2/03 66 MOTION by pro se deft Russell Garth Johnston to Dismiss for Lack of Jurisdiction and Failure to State a Claim. Motion returnable before Judge Hurd. (see) [Entry date 06/03/03] 6/2/03 67 ORDER denying deft Russell Garth Johnston's [66-1] motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim; that this case is set down for trial on Tuesday, 7/22/03 in Utica, NY; that the deft Johnston shall be appearing pro se. The estate of Joseph F. Donnelly, Esq., is directed to forward the file (minus any confidential material) to deft Johnston at the above address on or before 6/13/03, and file proof with the clerk. (signed by Judge David N. Hurd) (see) [Entry date 06/03/03] 6/3/03 -- Sent a copy of the [67-1] Order to Steven J. Simon, Attorney for the Estate of Joseph F. Donnelly, Esq. (see) 6/3/03 68 Minute entry of a TeleConference before Judge Hurd on 6/2/03, APPR: Kevin Luibrand, Esq for the pltf; Joseph Giannetti, Esq, Aaron Louridars, Esq, and David Bagley, Esq for the defts. Deft Johnston's pro se motion to dismiss discussed. Atty Luibrand to file affidavit of service of summons & complaint served upon deft Johnston together with answer. FPTC & trial scheduled for Tuesday, 7/22/03 in Utica, NY. Writ to be issued for defts Niles & Johnston's appearance at trial. Order to be filed. [10:30-10:45]; Court Clerk: Craig Minor. (see) 6/4/03 69 Scheduling Notice advising the parties that a Final Pretrial Conference has been rescheduled for 9:30 am on 7/22/03 in Utica, NY before Judge Hurd with Jury selection and Trial to commence immediately thereafter on 7/22/03. Parties are hereby directed to file with the Utica Clerk's Office on or before Thursday, 7/10/03, their proposed voir dire questions, requests to charge and exhibit list. A witness list containing a brief statement of what each witness will testify to at trial is required by 7/10/03, as well. Any motions in limine and/or expert reports must be filed by 7/10/03. (Signed by CRD Craig Minor) (see) 6/4/03 70 ACKNOWLEDGEMENT OF SERVICE as to Russell Garth Johnston on 4/17/01. (jel) [Entry date 06/05/03] 6/4/03 71 ANSWER to Complaint by Russell Garth Johnston (Attorney Joseph F. Donnelly). (jel) [Entry date 06/05/03] 6/12/03 72 NOTICE OF APPEAL by pro se deft Russell Garth Johnston. Appeal of the 6/2/03 Order denying pro se motion to dismiss. Appeal record due on 7/12/03 (see) 6/12/03 74 ADDENDUM TO DEFT'S PRO SE MOTION TO DISMISS by Russell Garth Johnston. (see) [Entry date 06/16/03] 6/13/03 73 AFFIDAVIT OF SERVICE by Steven Simon, Esq for the pltfs, re: pursuant to an Order dd 6/2/03, service of all legal papers in the possession of the Estate of Joseph F. Donnelly, Esq except for certain papers which were believed to be confidential, upon Garth Russell Johnston by mail on 6/11/03. (see) [Entry date 06/16/03] 6/16/03 -- Notice of appeal and certified copy of docket to USCA re: [72-1] appeal by Russell Garth Johnston (parties noticed). (see) 6/20/03 75 Letter REQUEST dd 6/10/03 and ORDER by Kevin Luibrand, Esq for the pltfs, requesting an Extension of the trial date to 7/23/03 since counsel is scheduled to present a seminar organized by MJ Treece to federal summer interns on 7/22/03 in Albany; DENIED. (signed by Judge David N. Hurd) (see) [Entry date 06/23/03] 6/25/03 76 SEALED DOCUMENT/Appl. Sealed pursuant to the 78-1 Order. (see) [Edit date 07/02/03] 6/25/03 77 MOTION by pro se deft Russell Garth Johnston to continue and Stay Trial Pending Pretrial Appeal and to Facilitate More Thorough Preparation by Pro Se deft Due to Death of Atty. Motion returnable before Judge Hurd. (see) [Entry date 06/30/03] 7/2/03 78 ORDER denying the [77-1] motion to continue and Stay Trial Pending Pretrial Appeal; denying [76-1] motion to Proceed in Forma Pauperis on Appeal; the Clerk of the Court is directed to SEAL deft's in forma pauperis application. (signed by Judge David N. Hurd) (see) 7/2/03 -- Sent certified copy of the [78-1] Order to the Second Circuit. (see) 7/2/03 79 Order and Writ of Habeas Corpus ad Testificandum, that a Writ of Habeas Corpus Ad Testificandum be issued directing the Warden of the FMC or his deputies to deliver the body of said Russell Garth Johnston # 10228-052, dressed in civilian clothes, over to the USM for the NDNY, or any of his deputies, in order that said Russell Garth Johnston #10228-052, be brought before the US District Court at Utica, NY on 7/22/03 at 10:00 am to appear, participate, and testify at the trial in the above entitled civil action in said Court, and after completion of the trial, Russell Garth Johnston be returned by the USM for the NDNY, or any of his deputies, to the custody of the appropriate prison Warden as set forth above, or any of his respective deputies, for return to the Federal facility from which he came. (Signed by Judge David N. Hurd) (see) [Entry date 07/03/03] [Edit date 07/03/03] 7/2/03 80 Order and Writ of Habeas Corpus ad Testificandum, that a Writ of Habeas Corpus Ad Testificandum issue directing the Warden of the FMC or his deputies to deliver the body of said William P. Niles #10229-052, dressed in civilian clothes, over to the USM for the NDNY, or any of his deputies, in order that said William P. Niles #10229-052, be brought before the US District Court at Utica, NY on 7/22/03 at 10:00 am to appear, participate, and testify at the trial in the above entitled civil action in said Court, and after completion of the trial, William P. Niles #10229-052, be returned by the USM for the NDNY, or any of his deputies, to the custody of the appropriate prison Warden as set forth above, or any of his respective deputies, for return to the Federal facility from which he came. (Signed by Judge David N. Hurd) (see) [Entry date 07/03/03] 7/9/03 -- USCA appeal fees received on behalf of Russell Garth Johnston for [72-1] appeal: $ 105.00, receipt #71143, CCA Docket No. 03-7623. (cbm) 7/9/03 -- Notice sent to U.S. Court of Appeals re: appeal fee paid. (cbm) 7/9/03 81 Minute entry of 7/8/03 teleconference: court informs counsel of problems incurred w/production of defts Johnston & Niles at trial. Rule 68 offer stated. Parties to confer w/principals and advise Court of acceptance/denial of offer and payments of costs for production of defts Johnston and Niles at trial. Appearances: Kevin A. Luibrand for pltfs, Joseph Giannetti, David Bagley, Aaron Louidas for defts. (cbm) [Entry date 07/10/03] 7/10/03 82 Witness list by Keith McKenna (cbm) [Entry date 07/11/03] 7/10/03 83 Exhibit list by Keith McKenna (cbm) [Entry date 07/11/03] 7/10/03 84 Proposed jury verdict sheet, submitted on behalf of defts McKenna and Town of Glenville. (cbm) [Entry date 07/11/03] 7/10/03 85 Voir dire questions requested by defts McKenna and Town of Glenville (cbm) [Entry date 07/11/03] 7/10/03 86 Trial MOTIONS in Limine by defts McKenna and Town of Glenville, returnable before Judge Hurd (cbm) [Entry date 07/11/03] 7/10/03 87 Special Jury instructions requested by defts McKenna and Town of Glenville (cbm) [Entry date 07/11/03] 7/10/03 88 TRIAL BRIEF by defts McKenna and Town of Glenville (cbm) [Entry date 07/11/03] 7/10/03 89 Exhibit list by Town of Glenville (cbm) [Entry date 07/11/03] 7/10/03 90 Witness list by Town of Glenville (cbm) [Entry date 07/11/03] 7/11/03 91 Witness list by William P. Niles (cbm) 7/11/03 92 Exhibit list by William P. Niles (cbm) 7/11/03 93 Proposed Voir dire questions by William P. Niles (cbm) 7/11/03 94 Proposed Jury instructions by William P. Niles (cbm) 7/11/03 95 AFFIDAVIT OF SERVICE by Maria Mayhew for William P. Niles, re: service of deft William P. Niles' Proposed Jury Instructions, Potential Exhibit List, Proposed Voir Dire and Potential Witness List upon Kevin Luibrand, Esq; Joseph Gianneti, Esq; David Bagley, Esq; and Russell Garth Johnston by mail on 7/10/03. (see) [Entry date 07/14/03] 7/15/03 96 Pltfs' Voir dire questions by Kevin Luibrand, Esq. (see) 7/15/03 97 Pltfs' Voir Dire Attachment by Kevin Luibrand, Esq. (see) 7/15/03 98 Pltfs' Witness list by Kevin Luibrand, Esq. (see) 7/15/03 99 Pltfs' Exhibit list by Kevin Luibrand, Esq. (see) 7/15/03 100 Pltfs' Proposed Jury Charge by Kevin Luibrand, Esq. (see) 7/15/03 101 Pltfs' Proposed Special Verdict Sheet by Kevin Luibrand, Esq. (see) 7/15/03 102 Letter/NOTICE dd 7/15/03 by Kevin Luibrand, Esq for the pltfs, confirming the telephone conversation with the CRD for Judge Hurd that the final pretrial conference would be rescheduled to 7/17/03 at 11:00 am in Utica, NY. Atty Luibrand advised opposing counsel with a copy of letter. (see) 7/15/03 -- Deadline updated; reset Final Pretrial Conference for 11:00 am on 7/17/03 before Judge Hurd in Utica, NY. (see) 7/16/03 -- Final Pre-trial conference held before Judge Hurd on 7/16/03. (see) [Entry date 07/22/03] 7/22/03 103 Minute entry of a Final Pretrial Conference before Judge Hurd on 7/16/03, APPR: Kevin Luibrand, Esq for the pltfs; David Bagley, Esq, Thomas Kelly, Esq, and Andrew Safranko, Esq for the defts. Court and counsel meet & discuss bifurcation of trial and terms of possible settlement agreement. Demand & offer exchanged. Counsel indicate they're unable to resolve this action and wish to proceed to trial as scheduled. Jury selection, trial procedure & duration discussed. Denying defts' [86-1] motion in Limine. Court informs counsel of the bifurcated trial and issues it's verbal order. [11:10-2:50]; Court Clerk: Craig Minor; Court Reporter/ECRO: Nancy Freddoso (see) 7/22/03 104 Minute entry of a Conference before Judge Hurd on 7/22/03, APPR: Kevin Luibrand, Esq for the pltf; Thomas Kelly, Esq, David Bagley, Esq, Andrew Safranko, Esq, and Aaron Louridas, Esq for the defts. Court and counsel discuss terms of agreed upon settlement. Terms of Settlement Agreement dictated for the record. Proposed judgments to be submitted w/in 7 days. Action to be dismissed by reason of settlement. Court tentatively approves infant settlement pending receipt of proposed order and judgments. Action marked SETTLED. [11:15-11:50]; Court Clerk: Craig Minor; Court Reporter/ECRO: Nancy Freddoso (see) [END OF DOCKET: 1:00cv1201]