Opinion
This is an ECF case No. 04 Civ. 4005 (LTS) (DFE).
January 27, 2006
MEMORANDUM AND ORDER
In response to my Memorandum and Order dated January 25, 2006, Mr. Marcus sent me a short letter on January 26. Rather than using fax, he used Federal Express, which is more expensive and is delayed by security inspection. I only learned of that letter when I received Mr. Brenner's January 27 fax. Mr. Marcus's letter says that "logistical problems would prevent the Defendants from receiving sworn interrogatory responses from all of the Defendants by January 31st."
My January 25 order directed answers by January 31 (by fax and by mail) because I anticipated that the defendants' reply brief (due February 3 before Judge Swain) might be defending the following arguments from their moving brief:
. . . Although Ramirez's use of profanity might have been inappropriate, it does not give rise to a claim of sexual harassment.
* * *
. . . There is no evidence that curse words. . . . were directed at the Plaintiffs because of their gender or were used in a sexual context.
(11/18/05 Def. Mem., pp. 17, 20.) I assumed that Judge Swain would be able to evaluate those arguments more thoroughly if the parties had completed the evidentiary record about Ramirez's profanities. In any event, Mr. Brenner's January 27 fax says the plaintiffs have no objection to extending the defendants' time to serve answers to the Court — ordered interrogatories until February 7, 2006. I hereby grant that extension. On the other hand, Mr. Marcus's January 26 letter wrongly assumes that his clients could comply with the deadline by serving no answers but only objections. Mr. Brenner correctly responds by citing Judge Cedarbaum's decision in Herskowitz v. Charney, 1995 WL 104007, *3 (S.D.N.Y. Mar. 8, 1995): "In the absence of a stay, the fact that a litigant has appealed to the District Court from a Magistrate Judge's discovery order does not excuse failure to comply with that order." Treating Mr. Marcus's letter as a request for a stay, I see no reason to stay my deadline of February 7. The defendants are free to request a stay from Judge Swain.