UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

DEFENDANTS-INTERVENORS' RESPONSE TO DEFENDANT'S SUPPLEMENTAL REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR APPLICATION OF PULLMAN ABSTENTION

INTRODUCTION

On May 19, 1997, the Attorney General filed a Supplemental Reply Memorandum of Law in support of the pending Motion for Application of Pullman Abstention (hereinafter "AG Reply"). In that memorandum, the Attorney General asked this Court to vacate Magistrate Judge Boyle's December 9, 1996, Memorandum Opinion and Order granting Intervenors the right to intervene as a party-defendant in this action pursuant to Rule 24(b)(2) of the Federal Rules of Civil Procedure. See AG Reply at 8-11.

The Attorney General's request to have this Court revisit the question of intervention is untimely, as the Attorney General failed to raise any objection to Magistrate Judge Boyle's ruling within the period prescribed by Rule 72(a) of the Federal Rules of Civil Procedure. In addition, the arguments raised by Attorney General themselves demonstrate the propriety of the order granting intervention in this case. Accordingly, this Court should reject the Attorney General's belated request that the Intervenors' status in this case be reduced to that of amici.

I. THE STATE HAS WAIVED ITS RIGHT TO CHALLENGE THE INTERVENTION ORDER

The Attorney General contends that there is "no procedural impediment to vacatur of Magistrate Boyle's December 9, 1996 Order." See AG Reply at 10. That contention is wrong.

Rule 72(a) of the Federal Rules of Civil Procedure provides, in relevant part:

Within 10 days after being served with a copy of the magistrate judge's [nondispositive] order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made.

Fed. R. Civ. P. 72(a) (emphasis added). Applying this rule, the Second Circuit has held that a party's failure to file a timely objection to an order issued by a United States Magistrate Judge "operates as a waiver of any further judicial review of the magistrate's decision." Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822 (1994).

In this case, the Attorney General plainly failed to file any response to Magistrate Judge Boyle's December 9, 1996 Order within the 10-day period prescribed by Rule 72(a). Accordingly, the Attorney General may not now "assign as error" any portion of that Order. Fed. R. Civ. P. 72(a).

The Attorney General cannot validly claim that he was unaware of the 10-day period for the filing of objections. The Attorney General was formally notified that the period for objection had expired by the January 14, 1997, letter sent by Intervenors' counsel to this Court. Counsel stated in that letter: "The time within which the parties could have objected to Magistrate Judge Boyle's order has now expired." Nor is the Attorney General entitled to the leeway given to pro se litigants, for whom the Second Circuit has created a limited exception to the 10-day objection rule. See, e.g., Small, 892 F.2d at 16 (pro se litigant's failure to object to magistrate judge's report and recommendation does not constitute waiver unless the report specifically informs the litigant of the consequences of the failure to object).

Thus, there is simply no excuse for the Attorney General's decision to raise an objection to Magistrate Judge Boyle's intervention order more than five months after that order was issued. Cf. Torres v. CBS News, Inc., 879 F. Supp. 309, 311-12 (S.D.N.Y. 1995), aff'd, 71 F.3d 406 (2d Cir. 1995) (refusing to consider objection which was filed, at best, seven days after expiration of the 10-day period).

II. THE STATE'S ARGUMENT ESTABLISHES THAT THE INTERVENTION ORDER WAS PROPER

Even if this Court were to consider the merits of the Attorney General's belated challenge to Magistrate Judge Boyle's Order, the Attorney General's own arguments demonstrate the propriety of that Order.⁽¹⁾ Specifically, the Attorney General claims that vacatur of the intervention order is proper because the intervenors have presented a legal argument "which conflicts with the legal argument presented by the State," and the State purports to be acting in its capacity as "parens patriae." AG Reply at 9. Because of the conflict with the State's position, the Attorney General claims that the intervention order should be vacated. Id. at 10.

As we explained in an earlier memorandum, the Attorney General's interpretation of 201-a et seq. of the New York Agriculture and Market Laws (the "New York kosher food laws") would effectively eliminate the protections that those laws provide to New York consumers who wish to purchase kosher foods. See Defendants-Intervenors' Memorandum in Response to Defendant's Supplemental Memorandum of Law in Support of Pullman Abstention (dated May 19, 1997) at 1-2. By offering an interpretation of the statute which eliminates all meaningful standards, the Attorney General has indicated that he does not deem those interests worthy of protection.

To be sure, our legal arguments may partially "conflict" with the arguments advanced by the Attorney General. But that conflict is due to our desire to protect the Intervenors' interests in ensuring the continued viability of the New York kosher food laws, as those laws are currently interpreted and enforced. Such conduct is entirely consistent with the purposes for which courts have allowed parties to intervene on the side of the government. New York Pub. Interest Research Group ("NYPIRG"), Inc. v. Regents, 516 F.2d 350, 351-52 (2d Cir. 1975) (allowing intervention on side of state where intervenors might "make a more vigorous presentation" of certain sides of the argument); Town of North Hempstead v. Village of North Hills, 80 F.R.D. 714, 717 (E.D.N.Y. 1978) (same); see also Herdman v. Town of Angelica, 163 F.R.D. 180, 190 (W.D.N.Y. 1995) (in considering a motion to intervene on the side of a government entity, court should consider, "(1) whether the government entity has demonstrated the motivation to litigate vigorously and to present all colorable contentions, and (2) the capacity of that entity to defend its own interests and those of the prospective intervenor"); Cf. Jones v. Butz, 374 F. Supp. 1284, 1287 (S.D.N.Y.), aff'd, 419 U.S. 806 (1974).⁽²⁾

Indeed, despite the Attorney General's suggestion to the contrary, the Intervenors are under no obligation to litigate this case in a manner that is entirely consistent with the strategy employed by the State.⁽³⁾ If that were the case, the Intervenors presence in this case would be largely superfluous. Instead, they have been allowed to intervene precisely because they will provide this Court with a perspective that differs significantly from that provided by the State --- a perspective which is attuned to the segment of the population that has the greatest interest in preserving the challenged laws. See, e.g., Jones, 374 F. Supp. at 1287; Bass v. Richardson, 338 F. Supp. 478, 492 (S.D.N.Y. 1971). Consistent with this purpose, the Intervenors have proceeded to litigate certain issues in this case "more vigorously" than the State, see NYPIRG, 516 F.2d at 351-52, and have chosen to protect their own interests in the challenged legislation precisely because the State is unwilling or unable to do so. Herdman, 163 F.R.D. at 185.

Conclusion

For the foregoing reasons, the Intervenors respectfully request that the Attorney General's request for vacatur of Magistrate Judge Boyle's December 9, 1996, Memorandum and Order be denied.

Dated: July 11, 1997.

Footnotes

1. We respond here only to the claims raised by the Attorney General in his May 19, 1997, submission. In the event that this Court chooses to revisit the intervention issue in its entirety, we refer the Court to the papers that Intervenors previously submitted to this Court regarding the propriety of intervention. See Proposed Intervenors' Memorandum of Law in Support of Motion to Intervene as Defendants (dated May 31, 1996); Proposed Intervenors' Reply to Oppositions to Motion to Intervene as Defendants (dated July 9, 1996).

2. The Supreme Court has recognized that there are instances where a government entity's obligation to a broader "public interest" undermines its ability to adequately represent the narrower interests of the intervenors. Trbovich v. United Mine Workers, 404 U.S. 528, 538-39 (1972); see also In re Sierra Club, 945 F.2d 776, 780 (4th Cir. 1991) (explaining that state agency did not adequately represent public interest group's opposition to constitutional challenge to state regulations where state agency "in theory" represented all state citizens, including citizens who opposed the regulation, while public interest group represented only the "subset of citizens" who supported the regulation). Cf. Planned Parenthood v. Citizens for Community Action, 558 F.2d 861, 870 (8th Cir. 1977).

3. Nor is there merit to the Attorney General's suggestion that the Intervenors' role in this case should somehow be limited to providing "facts" and "perspective" to the Court. See AG Reply at 8-9. That contention ignores the basic principle that once intervention is granted, the intervenor "is entitled to litigate fully on the merits." 7A Wright, Miller & Kane, Federal Practice & Procedure 1920 at 489 (1986 & Supp. 1997).