Marin v. Mosley

Full title: MEL MARIN, Plaintiff, v. WALTER T. MOSLEY et al., Defendants.

Court: United States District Court, N.D. New York

Date published: Nov 8, 2024

6:24-cv-1009 (DNH/TWD) (N.D.N.Y. Nov. 8, 2024)

Opinion

6:24-cv-1009 (DNH/TWD)

11-08-2024

MEL MARIN, Plaintiff, v. WALTER T. MOSLEY et al., Defendants.

MEL MARIN Plaintiff, pro se. Attorneys and Law Firms. Jason Wimberly, New York, NY, pro se. Diana Lee Calla, Jones Day, San Francisco, CA, for Defendant. Attorneys and Law Firms. Arkady Sardarian, Westport, CT, pro se. Eric Benjamin Miller, Department of Justice, New Haven, CT, for Defendants Federal Emergency Management Agency, Dean J. Savramis. Terrence M. O'Neill, Attorney General's Office, Hartford, CT, for Defendants Department of Emergency Services and Public Protection, William J. Hackett, Gemma Fabris, Ken Dumais. Richard C. Buturla, Ryan P. Driscoll, Berchem Moses P.C., Milford, CT, for Defendants Town of Westport, Jim Marpe, Robert E. Yost, Andrew Kingsbury, Michele Onofrio. Attorneys and Law Firms. Mel Marin, San Diego, CA, Pro Se. Attorneys and Law Firms. Mel Marin, San Diego, CA, Pro Se. Attorneys and Law Firms Jim Walden, Daniel Joseph Chirlin, Georgia K. Winston, Ivy Xiaotian Yao, Walden Macht Haran & Williams LLP, New York, NY, Gary Leon Donoyan, The Law Office of Gary L. Donoyan, Manhasset, NY, for Plaintiff Team Kennedy. Jed Rubenfeld, New Haven, CT, for Plaintiffs American Values 2024, Jeffrey Rose. Erin Ruth McAlister, Katherine Rhodes Janofsky, Seth Jonathan Farber, New York State Office of the Attorney General, New York, NY, for Defendants.

THERESE WILEY DANCKS, United States Magistrate Judge

MEL MARIN Plaintiff, pro se.

REPORT-RECOMMENDATION AND ORDER

THERESE WILEY DANCKS, United States Magistrate Judge

I. INTRODUCTION

The Clerk has sent to the Court for review a complaint and amended complaint submitted by pro se plaintiff Mel Marin (“Plaintiff”). Dkt. Nos. 1, 7. Plaintiff has not paid the statutory filing fee, seeks leave to proceed in forma pauperis (“IFP”), and has moved to seal his IFP application. Dkt. Nos. 2, 3. For the reasons stated below, the undersigned recommends Plaintiff's complaint be dismissed.

II. IFP APPLICATION

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). Upon review, Plaintiff's IFP application demonstrates economic need, see generally, Dkt. No. 2, therefore, he is granted permission to proceed IFP.

Under both the common law and the First Amendment, there is a general presumption in favor of public access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). Documents submitted to the Court to influence its decision on a motion or application are judicial documents to which the presumption of public access attaches. See Id. at 121. Such judicial documents generally “‘may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'” Id. at 120 (quoting Matter of New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987). “With respect to IFP applications, general concerns over disclosure of financial status have been held insufficient to overcome the presumption of public access.” Wimberly v. Experian Info. Sols., No. 1:18-CV-06058, 2021 WL 1146277, at *1 (S.D.N.Y. Mar. 24, 2021) (denying the plaintiff's application to seal affidavit submitted in connection with application for IFP status).

Here, Plaintiff argues his “IFP Application includes confidential banking information, as well as each expenditure and debt which he asserts is confidential,” therefore, his application to proceed IFP “should be sealed.” Dkt. No. 3 at 6. ¹, ² However, Plaintiff's assertion that such information is “confidential” is insufficient to overcome the presumption of public access. See Id. at 2. Moreover,

1 Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.

2 Plaintiff also states “[a] California court has already sealed at least 3 times this plaintiff's financial records that he now provides on this court's IFP application,” as “[t]he California Constitution and statutes automatically seal such financial records ....” Dkt. No. 3 at 3-4. Accordingly, Plaintiff contends “[t]hat right to have the California decision sealing these same financial numbers honored here, is a fundamental federal right because it is based on Article IV . . . . Therefore, plaintiff is entitled to the sealing of the IFP application here.” Id. at 4. However, he acknowledges his “sealing requests for the IFP application have been commonly denied in most of the federal courts to which he applied because all of those courts applied the federal common law rule ....” Id. at 5. To the extent Plaintiff seeks to have his IFP application submitted to this Court sealed pursuant to California law, any such request is denied.

[i]f personal financial information were held per se grounds for sealing, all . . . [documents] submitted with requests for in forma pauperis status under 28 U.S.C. § 1915 would automatically be sealed. Such is not the case. Financial affidavits, like other judicial documents, are presumptively open to public access and sealed only upon demonstration of compelling grounds.

Sardarian v. Fed. Emergency Mgmt. Agency, No. 3:19-CV-0910, 2019 WL 8331444, at *3 n.3 (D. Conn. Sept. 16, 2019).

The Court further notes there is nothing in Plaintiff's application or accompanying motion indicating he is differently situated from any other litigant seeking IFP status. See, e.g., Marin v. Chancellor, Univ. of Oxford, No. 1:22-CV-2839, 2022 WL 3328154, at *1 (S.D.N.Y. July 18, 2022) (denying the plaintiff's “request to seal his IFP application” noting the plaintiff “assert[ed] no other facts suggesting that he is differently situated from other litigants seeking IFP status who submit the form without a sealing order.”), motion to certify appeal denied, 2022 WL 4780823 (S.D.N.Y. Oct. 3, 2022). Accordingly, Plaintiff's motion to seal his IFP application is denied.

III. BACKGROUND

A. Plaintiff's Complaint

Plaintiff's amended complaint lists the following defendants: (1) “WALTER T. MOSLEY, SECRETARY OF STATE OF THE STATE OF NEW YORK,” (2) “THE HONORABLE CHRISTINA RYBA,” (3) “HENRY T. BERGER, PETER S. KOSINSKI, ESSMA BAGNUOLA, [and] ANTHONY K. CASALE, IN THEIR PERSONAL AND OFFICIAL CAPACITIES,” and (4) “THE NEW YORK STATE BOARD OF ELECTIONS” (“NYSBOE”). Dkt. No. 7 at 1.³ He asserts “[t]his court has jurisdiction under 28 U.S.C. § 1331 from Article II, § 1, Article VI, cl. 2, and the 1st and 14th Amendments to the Constitution of the United States, and 42 U.S.C. § 1983 ....” Id. at 2.

3 Plaintiff's complaint, Dkt. No. 1, was filed on August 16, 2024, and his amended complaint, Dkt. No. 7, was filed on August 19, 2024. “It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.” Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (citations omitted). Accordingly, the undersigned will solely assess the merits of the amended complaint.

Plaintiff “is a supporter of Robert F. Kennedy, Jr., and has a right to see Mr. Kennedy's name on the ballot in Oneida County as the Independent Candidate for President of the United States, and to vote for Mr. Kennedy in the General Election ....” Id. at 3.⁴ “Plaintiff was being processed for paid employment as a telefundraiser in the Kennedy Campaign . . . and he understood . . . that once he reached a certain level of calls he would be paid as staff because they were desperate for callers ....” Id. at 4.

4 The undersigned notes, while Plaintiff states he: (1) “is a domiciliary of New York,” (2) “is the trustee of his family's residence” located within the state “despite the county's attempt to seize that residence,” (3) “holds a NY license, has filed NY tax returns,” (4) “registered for classes at the University of Albany and HVCC in the past four years,” (5) “had a law office at the Empire State Building before retiring from law practice,” (6) “holds two NY bank accounts, and intends to return to New York,” and (7) “has been registered to vote in New York for 26 years,” Dkt. No. 7 at 3 (emphasis added), he does not explicitly state he is a resident of the State of New York.

The likelihood that [Plaintiff] would have reached the required number of calls to start being paid was high because he was a stock and commodity broker for Merrill Lynch in 1980, and rose to the top 1% in the nation in opening new accounts because of his phone skills on “cold calling”; His intent was to call into New York where the campaign demand was high ....Therefore, the elimination of Mr. Kennedy from the New York race interfered with [Plaintiff]'s employment between August to November 2024 ....

Id. at 5.

Plaintiff further argues his “professional career within the Kennedy Team and in the government was also hurt by the removal of RFK Jr. because [Plaintiff] had financial training that gave him a unique understanding of the root economic causes afflicting this nation ....” Id. at 6. In support of this contention, Plaintiff states he “was an Intern to the President in the Carter White House a year after he was an Intern to Senator Edward M. Kennedy” and “drafted a policy paper for the Kennedy team in June and July based on this training in money management that showed how what he calls the Suicide Economy, our uncontrolled pattern of rampant inflation followed by crippling recession, is breaking the nation apart ....” Id. at 7. Plaintiff “also learned from driving an ambulance for years that the polls are useless, because Reagan Democrats put presidents in office and take them out.” Id. Plaintiff contends:

A reasonable jury from this is able to find that if [Plaintiff] raised funds in New York for Mr. Kennedy, [Plaintiff] would likely have been paid before the end of the campaign, and would likely have taken a position in the Kennedy White House to help heal the economic problems and to get paid for that too, because he had first class training in a prior White House and practical training as a broker with Merrill Lynch, and was stopped early by these defendants' unconstitutional acts.

Id. at 9.

With respect to his first cause of action, “FOR DELCARATORY JUDGMENT AND INJUNCTION,” Plaintiff seeks for the attached ruling of Judge Ryba ⁵ to

5 The Court notes Plaintiff submitted a copy of the August 12, 2024, decision of New York Supreme Court, Albany County, in Cartwright v. Kennedy as an exhibit to his original petition. See Dkt. No. 1-1. The undersigned assumes Plaintiff is referencing such decision when referring to the “attached ruling” in his amended complaint.

be declared to be void and this court must enjoin the Secretary of State of New York and the commissioners of the New York Elections from honoring it, and must stay the deadline for printing the names of all candidates on the NY ballot until Mr. Kennedy's name is included therein, and to direct the Secretary to place Mr. Kennedy's name on all original ballots ahead of the names other

presidential candidates to compensate in equity for the unequal protection of the laws visited upon Kennedy and his candidacy by the ruling of Judge RYBA.

Id. at 13-14 (emphasis in original). Plaintiff avers Judge Ryba's order violates “Article II, § 1, clause 5” because the U.S. Constitution does not “require integrity, nor residency in any particular state” to be president. Id. at 14. He further contends the order violates “Article VI, cl. 2” as “adding the New York state residency law to the Federal Constitution is not consistent with federal law.” Id. at 15. Next, Plaintiff argues “[t]he ruling violates the 1st Amendment because dishonest and fraudulent speech . . . is legal expression under the 1st Amendment.” Id. at 16. He also claims a violation of the “14th Amendment,” stating:

The due process clause was violated because the process due was the one that places Kennedy's name on the ballot because he meets the qualifications set forth by the Constitution .... The equal protection clause was violated because the judge did not remove Trump's name from the ballot, although he has a long history of courts finding dishonesty years before this election.

Id. at 16-17. Plaintiff also references “The Civil Rights Act,” Id. at 21, claiming “[t]his state judge demonstrated voter fraud under color of state law.” Id. at 23.

Next, Plaintiff's second cause of action “FOR DAMAGES AGAINST MS. RYBA” alleges he “spent countless hours supporting Mr. Kennedy in this race . . . [and] would have made between $10,000 to $30,000 on telefundraising calls into New York but for the removal order of Mr. Kennedy from the race.” Id. at 24-25. He avers “[t]he unconstitutional conduct of the judge was the actual, proximate and substantial cause of the loss of that value of [Plaintiff] past time and anticipated salary.” Id. at 25. Plaintiff contends “Judge RYBA has no judicial immunity” with respect to this cause of action “because she purported to change the Federal Constitution” and “acted in the clear absence of jurisdiction ....” Id. at 25-26 (internal quotations omitted). He “seeks and is entitled to nominal damages against the Judge in her personal capacity, of $1” and “is entitled to punitive damages against the same citizen purporting to act as a judge because the parameters of constitutional law and the Supremacy Clause barring the judge's conduct have been very clear . . . so the test of punitive damages is met.” Id. at 29.

B. Team Kennedy v. Berger

In addition to the facts contained in Plaintiff's pleadings, the undersigned takes judicial notice of an Order from the U.S. District Court for the Southern District of New York in Team Kennedy v. Berger. See generally, No. 1:24-CV-3897, 2024 WL 4144057, at *1 (S.D.N.Y. Sept. 10, 2024).⁶ Team Kennedy, America Values 2024, and Jeffrey Rose commenced said action with an emergency request for preliminary injunction in the Southern District asking the court to enjoin the NYSBOE's enforcement of the State's Court's decision in Cartwright v. Kennedy and order the NYSBOE to keep Kennedy on the ballot.⁷ See Id. As the Southern District explained:

6 See also, e.g., Kurtz v. New York, No. 9:24-CV-0073 (AMN/DJS), 2024 WL 3488408, at *2 (N.D.N.Y. July 19, 2024) (explaining, “[p]ursuant to Fed.R.Evid. 201, a court may at any stage of a proceeding take judicial notice of ‘a fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.'”).

7 No. 906349-24, 2024 WL 3894605, at *1 (N.Y. Sup. Ct. Aug. 13, 2024), aff'd, 230 A.D.3d 969 (N.Y.App.Div. 2024), appeal dismissed, leave to appeal denied, 42 N.Y.3d 943 (2024).

“[T]o obtain a preliminary injunction against governmental action taken pursuant to a statute, the movant has to demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction. The movant also must show that the balance of equities tips in his or her favor.” Yang v. Kosinski, 960 F.3d 119, 127 (2d Cir. 2020) (internal quotation marks, footnote, and alteration omitted). A district court may enter a prohibitory preliminary injunction staying “government action taken in the public interest pursuant to a statutory or regulatory scheme” only when the moving party has demonstrated that (1) absent injunctive relief, he will suffer “irreparable injury,” and (2) there is “a likelihood that he will succeed on the merits of his claim.” Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (internal citations omitted).

Id. at *4 (quoting Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006)). Ultimately, the Court in Team Kennedy determined: (1) “Plaintiffs have failed to show they are likely to succeed on the merits of their U.S. constitutional claims,” (2) “[b]ecause Plaintiffs have not demonstrated a likelihood of success on the merits, the Court finds that they have not established irreparable harm,” and (3) “[e]ven if Plaintiffs could establish a likelihood of prevailing on the merits, the public interests of the State outweigh those of the Plaintiffs.” Id. at *17 (citation and footnote omitted). Accordingly, the plaintiffs' emergency request for a preliminary injunction was denied. See Id. at 18.

The plaintiffs in Team Kennedy subsequently moved for an emergency injunction pending appeal in the U.S. Court of Appeals for the Second Circuit. See Kennedy v. Berger, No. 24- 2385, 2024 WL 4274191 (2d Cir. Sept. 18, 2024). On September 18, 2024, the Second Circuit denied the plaintiffs' motion. See Id. Thereafter, the plaintiffs submitted an application for a writ of injunction to the U.S. Supreme Court, which was denied on September 27, 2024. See Team Kennedy v. Berger, No. 24A285, 2024 WL 4312515 (Sept. 27, 2024).

IV. LEGAL STANDARD

Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).

In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Moreover, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

V. ANALYSIS

Concerning the first cause of action, seeking injunctive and declaratory relief, Plaintiff asserts the aforementioned ruling of New York State Supreme Court, Albany County, found:

Mr. Kennedy misrepresented his residency for his petition to be placed on the ballot in all the New York counties and, apparently on the implication that he is a liar, a cheat, a perpetrator of fraud, and a scoundrel, has no right to be on the ballot with honest and upright persons ....

Dkt. No. 7 at 13. As an initial matter, this claim by Plaintiff misrepresents the state court's ruling.

As Albany County Supreme Court explained, New York “Election Law § 6-140 (1) requires that each page of an independent nominating petition set forth the address of the candidate's ‘place of residence' . . . [and] the failure to strictly comply with the Election Law requirements as to matters of content is fatal to a nominating petition ....” Cartwright, 2024 WL 3894605, at *11 (citations omitted). The state court determined it had been “demonstrated by clear and convincing evidence that the 84 Croton Lake Road address listed on the nominating petition was not Kennedy's bona fide residence within the meaning of the Election Law.” Id. at 13. Therefore, Judge Ryba ordered “that the nominating petition filed with . . . [the] New York State Board of Elections purporting to designate . . . Candidate, Robert F. Kennedy, Jr., as a candidate of the We The People Independent Body for Public Office of President of the United States . . . is invalidated ....” Id. at 16. In other words, contrary to Plaintiff's claim, the order invalidating the nominating petition at issue here was not grounded on some “implication that [Kennedy] is a liar, a cheat, a perpetuator of fraud, and a scoundrel,” and as such, had “no right to be on the ballot,” Dkt. No. 7 at 13, but rather on compliance with the state's election laws.

In any event, injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). Plaintiff's failure to demonstrate a likelihood of success on the merits precludes such extraordinary relief.

As explained by the U.S. District Court for the Southern District of New York in Team Kennedy, “[t]he purpose of inclusion of the residence address of the candidate” as required by New York Election Law “is not only to facilitate the processing of his petition by the Board of Elections and to ease the task of one checking his qualification to run, but perhaps most important to assure that the signers of his petition are aware of the identity of their candidate.” Team Kennedy, 2024 WL 4144057, at *15 (citing Ferris v. Sadowski, 45 N.Y.2d 815, 817, 381 N.E.2d 339, 341 (1978)). Further, the undersigned agrees with that court's conclusion that New York “State's purported regulatory interests in guarding against voter confusion justify the de minimis burden of requiring candidates to comply with the residence requirement.” Id. at *17. Therefore, Plaintiff in the instant matter is unable to demonstrate he is likely to succeed on the merits of his U.S. Constitutional claims for the same reasons articulated by the Southern District of New York, and his cause of action for declaratory and injunctive relief should be dismissed.

Turning to Plaintiff's second cause of action, for damages against Judge Ryba, “[a]bsolute immunity for judges is ‘firmly established' for acts ‘committed within their judicial jurisdiction.'” Peoples v. Leon, 63 F.4th 132, 138 (2d Cir. 2023) (quoting Cleavinger v. Saxner, 474 U.S. 193, 199 (1985)). “Such judicial immunity is conferred in order to insure ‘that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.'” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871)). Therefore, “even allegations of bad faith or malice cannot overcome judicial immunity.” Id. (citing Pierson v. Ray, 386 U.S. 547, 554 (1967); Tucker v. Outwater, 118 F.3d 930, 932 (2d Cir. 1997), cert. denied, 522 U.S. 997 (1997)). However, “a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity . . . [or] for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (citing Forrester v. White, 484 U.S. 219, 227-29 (1988); Stump v. Sparkman, 435 U.S. 349, 360 (1978)).

Here, Plaintiff's claim for damages against Judge Ryba, a New York State Supreme Court Justice, arise out of her decision granting a petition in New York Supreme Court. Therefore, Judge Ryba is entitled to judicial immunity. See, e.g., Strong v. New York, No. 1:19-CV-0063 (MAD/CFH), 2019 WL 2723372, at *3 (N.D.N.Y. July 1, 2019) (explaining the defendant, “a New York State Supreme Court Judge, enjoys judicial immunity” and dismissing the plaintiff's § 1983 claims against him) (citing Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir. 1983)) (additional citations omitted). Moreover, Plaintiff's conclusory allegations that Judge Ryba acted without jurisdiction are insufficient to overcome such absolute immunity. See, e.g., Dees v. Zurlo, No. 1:24-CV-0001 (MAD/DJS), 2024 WL 2291701, at *8 (N.D.N.Y. May 21, 2024) (“Plaintiffs have not presented more than conclusory allegations to establish that the judicial Defendants were acting absent all jurisdiction. They are, therefore, entitled to absolute immunity for that conduct.”). Accordingly, Plaintiff's claim against Judge Ryba for damages must be dismissed.

In sum, Plaintiff has failed to state a claim upon which relief may be granted. Therefore, the undersigned recommends the amended complaint be dismissed pursuant to 28 U.S.C. § 1915. VI. CONCLUSION

WHEREFORE, it is hereby

ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED, and it is further

ORDERED that Plaintiff's motion to seal (Dkt. No. 3) is DENIED, and the Clerk is directed to remove the docket restriction at Dkt. No. 2, and it is further

RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 7) is DISMISSED, and it is further

ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report.⁸ Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.

8 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION ¹

1 At the time the action was originally filed, the Honorable Leonard B. Sand, United States District Judge, granted plaintiff's application for in forma pauperis status based on plaintiff's ex parte submission (Docket Item 1). Although the present application seeking to revoke plaintiff's in forma pauperis status is non-dispositive, I address it by way of a report and recommendation to eliminate any appearance of a conflict between the decision of a district judge and that of a magistrate judge.

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United States District Judge, I. Introduction

By notice of motion dated March 4, 2010 (Docket Item 11), defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke plaintiff's in forma pauperis (“IFP”) status on the ground that plaintiff has previously had at least three Section 1983 actions dismissed as frivolous, malicious or failing to state a claim upon which relief could be granted, and has not shown that he is in imminent danger of serious physical injury. Defendant further seeks an order directing that the action be dismissed unless plaintiff pays the full filing fee within thirty (30) days. For the reasons set forth below, I respectfully recommend that defendant's motion be granted.

II. Facts

Plaintiff, a sentenced inmate in the custody of the New York State Department of Correctional Services, commenced this action on or about January 12, 2009 by submitting his complaint to the Court's Pro Se office. Plaintiff alleges, in pertinent part, that he has “a non-healing ulcer that is gane green [sic ]” and that defendant Bernstein “did not want to treat the ulcer right” (Complaint, dated March 3, 3009 (Docket Item 2) (“Compl.”), at 3).

The action was originally commenced against two defendants-Dr. Bernstein and Dr. Finkelstein. The action was dismissed as to Dr. Finkelstein because the complaint contained no allegations whatsoever concerning Dr. Finkelstein (Order dated February 18, 2010 (Docket Item 9)).

On March 4, 2010, the sole remaining defendant-Dr. Bernstein-filed the current motion. Plaintiff failed to submit a response. Accordingly, on August 20, 2010, I issued an Order advising plaintiff that if he wished to oppose the motion, he must submit his opposition by September 15, 2010 and that after that date I would consider the motion fully submitted and ripe for decision (Order dated August 20, 2010 (Docket Item 15)). The only submission plaintiff has made in response to my Order is a multipart form issued by the New York State Department of Correctional Services entitled “Disbursement or Refund Request.” ² By this form, plaintiff appears to request that the New York State Department of Correctional Services pay the filing fee for this action. The form is marked “Denied.”

2 Plaintiff sent this form directly to my chambers, and it has not been docketed by the Clerk of the Court. The form will be docketed at the time this Report and Recommendation is issued.

III. Analysis

28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged. Although an indigent, incarcerated individual need not prepay the filing fee at the time at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts. 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent abuse of the judicial system by inmates, paragraph (g) of this provision denies incarcerated individuals the right to proceed without prepayment of the filing fee if they have repeatedly filed meritless actions, unless such an individual shows that he or she is in imminent danger of serious physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d Cir.2004) (“[T]he purpose of the PLRA ... was plainly to curtail what Congress perceived to be inmate abuses of the judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997). Specifically, paragraph (g) provides:

*2 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

If an inmate plaintiff seeks to avoid prepayment of the filing fee by alleging imminent danger of serious physical injury, there must be a nexus between the serious physical injury asserted and the claims alleged. Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir.2009).

Section 1915(g) clearly prevents plaintiff from proceeding in this action without prepayment of the filing fee. The memorandum submitted by defendant establishes that plaintiff has had his IFP status revoked on at least four prior occasions as a result of his repeatedly filing meritless actions.

• In 2005, plaintiff commenced an action in the United States District Court for the Northern District of New York seeking to have his infected leg amputated. Nelson ³ v. Lee, No. 9:05-CV-1096 (NAM)(DEP), 2007 WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, the Honorable Norman A. Mordue, Chief United States District Judge, accepted and adopted the Report and Recommendation of the Honorable David E. Peebles, United States Magistrate Judge, that plaintiff had brought three or more prior actions that had been dismissed for failure to state a claim and that plaintiff's IFP status should, therefore, be revoked. 2007 WL 4333776 at *1-*2.

• In Nelson v. Nesmith, No. 9:06-CV-1177 (TJM)(DEP), 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff again filed an action concerning the medical care he was receiving for his left leg. The Honorable Thomas J. McAvoy, United States District Judge, accepted the Report and Recommendation of Magistrate Judge Peebles, and revoked plaintiff's IFP status and dismissed the action on the ground that plaintiff had previously commenced at least three actions that had been dismissed on the merits. 2008 WL 3836387 at *1, *7.

• In Nelson v. Spitzer, No. 9:07-CV-1241 (TJM)(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008), Judge McAvoy again revoked plaintiff's IFP status on the ground that plaintiff had commenced three or more actions that constituted “strikes” under Section 1915(g) and had not shown an imminent threat of serious physical injury. 2008 WL 268215 at *1-*2.

• Finally, in Nelson v. Chang, No. 08-CV-1261 (KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10, 2009), the Honorable Kiyo A. Matsumoto, United States District Judge, also found, based on the cases discussed above, that plaintiff had exhausted the three strikes permitted by Section 1915(g) and could not proceed IFP in the absence of a demonstration of an imminent threat of serious physical injury. 2009 WL 367576 at *2-*3.

3 It appears that plaintiff uses the names David J. Cash and Dennis Nelson interchangeably. In his complaint in this matter, plaintiff states that the Departmental Identification Number, or DIN, assigned to him by the New York State Department of Correctional Services (“DOCS”) is 94-B-0694 (Compl. at 7). DOCS inmate account records submitted by plaintiff in connection with his application for IFP status indicate that DIN 94-B-0694 is assigned to Dennis Nelson. In addition, the DOCS form described in footnote two bears the docket number of this action, but is signed in the name of Dennis Nelson and was sent in an envelope identifying the sender as Dennis Nelson. A subsequent action has been filed in this Court in which the plaintiff identifies himself as Dennis Nelson but lists his DIN as 94-B-0694, the same DIN used by plaintiff here. Finally, plaintiff has submitted nothing to controvert the assertion in defendant's papers that David Cash and Dennis Nelson are the same person. In light of all these facts, I conclude that David Cash and Dennis Nelson are both names used by plaintiff.

*3 As defendant candidly admits, there is one case in which plaintiff's leg infection was found to support a finding of an imminent threat of serious physical injury sufficient to come within the exception to Section 1915(g). Nelson v. Scoggy, No. 9:06-CV-1146 (NAM)(DRH), 2008 WL 4401874 at *2 (N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment was subsequently granted for defendants in that case, and the complaint was dismissed. Judge Mordue concluded that there was no genuine issue of fact that plaintiff had received adequate medical care for his leg wound and that the failure of the leg to heal was the result of plaintiff's own acts of self-mutilation and interference with the treatment provided. Nelson v. Scoggy, No. 9:06-CV-1146 (NAM)(DRH), 2009 WL 5216955 at *3-*4 (N.D.N.Y. Dec. 30, 2009).⁴

4 Although the form complaint utilized by plaintiff expressly asks about prior actions involving the same facts, plaintiff disclosed only the Scoggy action and expressly denied the existence of any other actions relating to his imprisonment (Compl. At 6).

In light of the foregoing, there can be no reasonable dispute that plaintiff has exceeded the three “strikes” allowed by Section 1915(g) and that he cannot, therefore, proceed here without prepaying the filing fee unless he demonstrates an imminent threat of serious physical injury. Plaintiff has declined to attempt to make this showing in response to defendant's motion, and the only suggestion in the record of serious physical injury is the bare statement in the complaint that plaintiff “need[s] to go back to a wound speci [a]list before the gane green [sic ] kills [him]” (Compl. at 5). “However, unsupported, vague, selfserving, conclusory speculation is not sufficient to show that Plaintiff is, in fact, in imminent danger of serious physical harm.” Merriweather v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.1998); see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003) (imminent danger exception to Section 1915(g) requires “specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury”). Given the plaintiff's history, as set forth in the cases described above, I conclude that this vague statement is insufficient to support a finding that plaintiff is in imminent danger of serious physical injury. ⁵

5 Plaintiff has sent me several letters describing his wound and its symptoms in detail, and I have no doubt that the wound is serious. However, in granting summary judgment dismissing an action last year based on the same allegations, Judge Mordue of the Northern District found that there was no genuine issue of fact that plaintiff's own conduct was responsible for the ineffectiveness of the treatment he was provided:

Furthermore, to the extent that Nelson's medical treatment was delayed, much of the delay was due to his own refusal to cooperate with medical staff and his self-mutilations. Nelson's actions to thwart the medical treatment of his wound cannot be construed as interference or indifference by anyone else.... [T]he medical treatment Nelson received complied with constitutional guarantees as it was appropriate, timely, and delayed only by Nelson's own actions.

Nelson v. Scoggy, supra, 2009 WL 5216955 at *4. Given plaintiff's total failure to respond to the pending motion and his failure to even deny that he is actively thwarting treatment of his wound, it would be sheer speculation for me to conclude that he is in imminent danger of a serious injury as a result of defendant's conduct.

IV. Conclusion

Accordingly, for all the foregoing reasons, I find that plaintiff has had three or more prior actions dismissed as being frivolous, malicious or failing to state a claim and that plaintiff's in forma pauperis status should, therfore, be revoked. If your Honor accepts this recommendation, I further recommend that the action be dismissed unless plaintiff pays the filing fee in full within thirty (30) days of your Honor's final resolution of this motion.

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Barbara S. Jones, United States District Judge, 500 Pearl Street, Room 1920, and to the Chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 23738 (2d Cir.1983).

All Citations

Not Reported in F.Supp.2d, 2010 WL 5185047

Attorneys and Law Firms.

Jason Wimberly, New York, NY, pro se.

Diana Lee Calla, Jones Day, San Francisco, CA, for Defendant.

ORDER

MARY KAY VYSKOCIL, United States District Judge:

*1 On February 1, 2021, the Court issued an opinion and order denying Plaintiff, who is pro se, leave to file a second amended complaint. [ECF No. 91.] Plaintiff filed a notice of appeal two days later. [ECF No. 92.] On March 22, 2021, Plaintiff notified the Court that he intends to move for in forma pauperis (“IFP”) status for purposes of his appeal. Plaintiff filed under seal a motion for leave to seal his affidavit in connection with his application for IFP status. The Court DENIES Plaintiff's motion.

Under both the common law and the First Amendment, a strong presumption of public access attaches to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). Documents submitted to the Court to influence its decision on a motion or application are judicial documents to which the presumption of public access attaches. See Id. at 121; Julian v. Metro. Life Ins. Co., No. 17-CV-957 (AJN) (BCM), 2020 WL 5913739, at *3 (S.D.N.Y. Oct. 6, 2020) (collecting cases); Valassis Commc'ns, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2020 WL 2190708, at *2 (S.D.N.Y. May 5, 2020).

Generally, judicial documents may be sealed “if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (quoting In re N.Y. Times Co., 828 F.2d 110, 113 (2d Cir. 1987)). The Second Circuit has explained that generally “[f]inancial records of a wholly owned business, family affairs, illnesses, embarrassing conduct with no public ramifications, and similar matters will weigh more heavily against access than conduct affecting a substantial portion of the public.” United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995).

With respect to IFP applications, general concerns over disclosure of financial status have been held insufficient to overcome the presumption of public access. For example, in Komatsu v. City of New York, 1:20-CV-6510 (LLS), 2020 WL 8641272, at *1 (S.D.N.Y. Sept. 2, 2020), the court denied a motion to seal an IFP application, finding that “the contents of Plaintiff's IFP applications, including Plaintiff's references to his receipt of public benefits, employment history and current unemployment, and his state and federal litigation history, are not sufficiently extraordinary to outweigh the presumption in favor of public access.” In Sardarian v. Federal Emergency Management Agency, No. 3:19-cv-910 (CSH), 2019 WL 8331444, at *3-4 (D. Conn. Sept. 16, 2019), the court, in connection with an application for appointment of counsel, denied a motion to seal “information [that] bore on the issue of whether Plaintiff was indigent [and] lacking sufficient funds to obtain his own counsel.”

In explaining that the plaintiff's discomfort knowing that his finances would be publicly disclosed was insufficient to overcome the presumption of public access, the court persuasively noted:

If personal financial information were held per se grounds for sealing, all prisoner affidavits submitted with requests for in forma pauperis status under 28 U.S.C. § 1915 would automatically be sealed. Such is not the case. Financial affidavits, like other judicial documents, are presumptively open to public access and sealed only upon demonstration of compelling grounds.

*2 Id. at *3 n.3.

Here, Plaintiff provides no specific justification to seal his supporting affidavit other than that it “contains detailed financial information and therefore should not be made public.” This does not overcome the presumption of public access. See Komatsu, 2020 WL 8641272, at *1; see also Lugosch, 435 F.3d at 120 (noting that sealing requires more than “[b]road and general findings” (quoting N.Y. Times, 828 F.2d at 113)). Accordingly, Plaintiff's motion to file his affidavit in support of his IFP application under seal is DENIED.

IT IS HEREBY ORDERED that on or before March 31, 2021, Plaintiff shall file his IFP application, including his supporting affidavit, on the public docket in order for the Court to rule on his application.

SO ORDERED.

Attorneys and Law Firms.

Arkady Sardarian, Westport, CT, pro se.

Eric Benjamin Miller, Department of Justice, New Haven, CT, for Defendants Federal Emergency Management Agency, Dean J. Savramis.

Terrence M. O'Neill, Attorney General's Office, Hartford, CT, for Defendants Department of Emergency Services and Public Protection, William J. Hackett, Gemma Fabris, Ken Dumais.

Richard C. Buturla, Ryan P. Driscoll, Berchem Moses P.C., Milford, CT, for Defendants Town of Westport, Jim Marpe, Robert E. Yost, Andrew Kingsbury, Michele Onofrio.

RULING ON PLAINTIFF'S MOTION FOR REDACTION OF PERSONAL INFORMATION

Haight, Senior District Judge:

I. INTRODUCTION

*1 Pro se plaintiff Arkady Sardarian commenced this action “pursuant to the Stafford Act, 42 U.S.C. §§ 5133[,] et seq., 42 U.S.C. §§ 4321[,] et seq., and the Administrative Procedure Act (“APA”), 42 U.S. Code § 1983 (civil action for deprivation of rights), 5 U.S.C. §§ 701[,] et seq., to void the decision of the Federal Emergency Management Agency (‘FEMA') in July 2018 to terminate previously awarded Hazard Mitigation Grant Program (‘HMGP') grant funding for the elevation of the lowest living area of the Plaintiff's raised-ranch slab-on-grade residence located in Westport, Connecticut.” Doc. 1, ¶ 1. Defendants in the action include FEMA, the Department of Emergency Services and Public Protection (“A Division of Connecticut, Emergency Management and Homeland Security”), the Town of Westport, and a list of individual defendants who are governmental officials in the aforementioned and other agencies (in their official capacities).

Pending before the Court is Plaintiff's motion to redact “personal/financial data” he previously filed in support of a motion for appointment of counsel [Doc. 7]. The Court denied Plaintiff's request for appointed counsel on June 19, 2019, because based on the financial facts presented (income, savings, properties), Plaintiff is not indigent - “unable to afford counsel” -under 28 U.S.C. § 1915(e)(1). See Doc. 12, at 9-10. Plaintiff now moves the Court to redact personal information set forth in particular paragraphs of that failed motion: paragraphs 3-10 and 15. Paragraphs 3 to 7 set forth financial information regarding Plaintiff's salary as a project engineer, earned income, taxes, interest, dividends, rents, investments, savings, property, and loans. Doc. 19-1, at 1-2. Paragraphs 8 and 9 list family members who rely on Plaintiff's support and the fact that no member of his household over age 18 is presently employed. Id., at 2. Paragraph 10 describes Plaintiff's projections for his financial status in future years and the reasons he has attempted to secure counsel on a contingency basis. Id., at 2-3. Paragraph 15 summarizes the circumstances which Plaintiff believes supported his application for appointment of counsel, including, inter alia, his need for a suitable attorney who is familiar with court rules and procedure and his belief that his work overseas will prevent him from attending to court-related matters on a timely basis. Id., at 5-6. As to these designated paragraphs, Plaintiff characterizes the information as “personal” in the title of his motion. However, he fails to provide the Court with a basis for redaction or sealing in a supporting memorandum of law. He simply appends the motion for appointment of counsel [Doc. 7] to his present motion [Doc. 19]. For the reasons discussed below, Plaintiff's motion to redact this information will be denied.

II. DISCUSSION

A. Standard to Seal

In requesting redaction of designated paragraphs in his motion for appointment of counsel, Plaintiff moves to seal specific information from public disclosure. Under both the common law and the First Amendment, there is a strong, long-established presumption of public access to judicial documents, those documents that are “relevant to the performance of the judicial function and useful in the judicial process.” ¹ Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). See also Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-98 (1978); Matter of New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987), cert. denied, 485 U.S. 977 (1988). Put simply, “[j]udicial records presumptively are subject to public inspection.” Cedar Swamp Holdings, Inc. v. Zaman, 476 F.Supp.2d 303, 304 (S.D.N.Y. 2007) (citing United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995) (“Amodeo II”) and collecting cases). Additionally, “the presumption is at its strongest when the document in question ... has been submitted as a basis for judicial decision making.” Greater Miami Baseball Club Ltd. P'ship v. Selig, 955 F.Supp. 37, 39 (S.D.N.Y. 1997). “Only where countervailing considerations overcome the presumption may the public be denied access to such documents.” Cedar Swamp Holdings, 476 F.Supp.2d at 304 (citing Amodeo II, 71 F.3d at 1050-53; Greater Miami Baseball, 955 F.Supp. at 39).

1 See also United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”) (“The Second Circuit defined a judicial document as an item which is “relevant to the performance of the judicial function and useful in the judicial process.”).

*2 Nevertheless, the public's right of access to court documents is not absolute. That right may be surmounted by a party's showing that sealing the document in question will further other substantial interests, for example, a criminal defendant's right to a fair trial or a third party's privacy interests. New York Times Co., 828 F.2d at 114-16. Therefore, in limited cases and upon a showing of compelling circumstances, the court may order documents to be sealed. Lugosch, 435 F.3d at 123; Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 96 (2d Cir. 2004).

In particular, a federal court may seal a document if “specific, on the record findings are made demonstrating that ‘closure is essential to preserve higher values and is narrowly tailored to serve that interest.' ” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986) (“Press Enterprise II”) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press-Enterprise I”)). Accord New York Times Co., 828 F.2d at 116; see also Harford Courant Co., 380 F.3d at 95-96 (judicial records may be sealed only when and to the extent necessary to preserve higher values). Thus, “a judge must carefully and skeptically review sealing requests to insure that there really is an extraordinary circumstance or compelling need.” In re Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994). See also Sec. & Exch. Comm'n v. The Street.com, 273 F.3d 222, 232 (2d Cir. 2001). Additionally, the Supreme Court has clarified that “the decision as to access [to judicial records] is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Nixon., 435 U.S. at 599 (citations omitted).

The party who requests sealing bears the burden of demonstrating the grounds to seal. See, e.g., DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997). Thus, for each particular document, or designated portion of the document, the movant must establish that a specific prejudice or harm will result if there is no sealing. Moreover, redactions, as opposed to sealing entire documents, are favored in that they are limited and clear in scope. See, e.g., Suntoke v. PSEG Power Connecticut, LLC, No. CIVA 3:06-CV-01520 (JCH), 2007 WL 1455847, at *1 (D. Conn. May 16, 2007) (“A blanket sealing order ... would rarely, if ever, be appropriate.”).

In this District, Local Civil Rule 5(e) sets forth the proper procedure for sealing. The Rule mandates that in “an order sealing a judicial document” - [i.e., one that is “relevant to the performance of the judicial function and useful in the judicial process,” Amodeo 1, 44 F.3d at 145] - “shall include particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons.” D. Conn. L. Civ. R. 5(e) 3. To file a document under seal, a party, whether pro se or represented by counsel, must comply with the procedures set forth in Local Rule 5(e) 4. Per that Rule, that party may “choose among the following procedures”:

(a) Counsel may e-file (1) a motion to seal, which may be e-filed as a public motion or a sealed motion, (2) a redacted version of each document sought to be sealed, which shall be e-filed as a public document, (3) unredacted copies of each document sought to be sealed, which shall be e-filed as sealed motions or sealed documents, and (4) any memorandum or other documents supporting the assertion that grounds exist for sealing the documents sought to be sealed, which may be e-filed as public or sealed documents.

*3 Id. 5(e) 4. (a)(1)-(4). To support a motion to seal, one must file a memorandum and any supporting documents, setting forth the specific reasons for sealing. In this District, “[a]ny motion involving disputed issues of law shall be accompanied by a memorandum of law,” and “[f]ailure to submit a required memorandum may be deemed sufficient cause to deny the motion.” Id. 7(a)1.

In general, as in the context of protective orders, “good cause” exists where the movant can identify the “specific prejudice or oppression that will be caused by disclosure.” Burgess v. Town of Wallingford, No. 3:11-CV-1129 CSH, 2012 WL 4344194, at *9 (D. Conn. Sept. 21, 2012). With respect to privacy interests, the Second Circuit has stated that a court “should consider the degree to which the subject matter is traditionally considered private rather than public.” Amodeo II, 71 F.3d at 1051. For example, “[f]inancial records of a wholly owned business, family affairs, illnesses, embarrassing conduct with no public ramifications, and similar matters will weigh more heavily against access than conduct affecting a substantial portion of the public.” Id.

Moreover, the “nature and degree” of the alleged injury must be weighed by the court. Id. The court then balances the sensitivity of the information against the presumption of access. Id. For example, when information appears in a judicial document, “[t]he mere fact that some level of discomfort, or even embarrassment, may result from the dissemination of [the particular material] is not in and of itself sufficient to establish good cause to support the issuance of [a] protective order.” Flaherty v. Seroussi, 209 F.R.D. 295, 299 (N.D.N.Y. 2001) (citations omitted). To support “good cause,” any such embarrassment “must be substantial.” Id. See also United States v. Martoma, No. S112-CR-973 (PGG), 2014 WL 164181, at *5 (S.D.N.Y. Jan. 9, 2014) (“The mere fact that judicial records may reveal potentially embarrassing information is not in itself sufficient reason to block public access.”) (citation omitted).

B. Plaintiff's Motion to Redact

In the case at bar, Plaintiff filed the information he seeks to redact as part of his motion for appointment of counsel [Doc. 7]. That information bore on the issue of whether Plaintiff was indigent, lacking sufficient funds to obtain his own counsel, and the circumstances he believed supported that motion. The information was central to the Court's ruling that appointment of counsel was unwarranted. Therefore, the financial information was integral to the Court's performance of its judicial function. The presumption of public access adheres to this information because it was necessarily submitted in a judicial document, providing the basis for judicial decision-making. See Lugosch, 435 F.3d at 121 (“[D]ocuments submitted to a court for its consideration in a ... motion are - as a matter of law - judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment.”). ²

2 Public access to information which is the basis for judicial decisions helps to “ensure judicial accountability and public confidence in the adjudicative process.” Vargas v. CH Hosp. Mgmt., LLC, No. 14-CV-2439 (ENV) (JO), 2014 WL 2930462, at *1 (E.D.N.Y. June 27, 2014) (collecting cases).

Bearing this presumption of access in mind, the Court notes that Plaintiff has provided no specific reason that all designated “personal” information should be sealed. Perhaps he is uncomfortable knowing that his finances have been revealed and/or simply wishes to prevent people from learning about his private matters. However, discomfort alone is insufficient to redact information from a judicial document. ³ See, e.g., Mitchell by & Through Hughes v. Mirza, No. 07-CV-03686 (ILG), 2009 WL 10706571, at *2 (E.D.N.Y. May 6, 2009) (denying motion to seal financial affidavit submitted on motion for appointment of counsel where movant's “request to seal his affidavit [was] motivated by his desire to keep his financial affairs private” and “[h]is financial affairs ... undermined his qualification for the appointment of counsel,” which “was the issue before the court”).

3 If personal financial information were held per se grounds for sealing, all prisoner affidavits submitted with requests for in forma pauperis status under 28 U.S.C. § 1915 would automatically be sealed. Such is not the case. Financial affidavits, like other judicial documents, are presumptively open to public access and sealed only upon demonstration of compelling grounds.

*4 If Plaintiff wishes the Court to redact this information, he must explain why each designated paragraph of information warrants sealing. Pursuant to Local Civil Rule 5(e) 3., Plaintiff must show that “sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons.” Moreover, he must file a memorandum of law in support of his motion, demonstrating why sealing is appropriate in this case. Absent such a showing and memorandum, the Court will deny his motion to redact.

III. CONCLUSION

For the reasons discussed above, Plaintiff's motion to redact personal information from his motion to appoint counsel [Doc. 19] is DENIED without prejudice. He voluntarily submitted the information at issue to the Court in a judicial document, requesting that the Court act on such information by ruling on a motion to appoint counsel. Plaintiff may, however, if so advised, re-file his motion for redaction with the particularized grounds to seal any requested paragraph in a supporting memorandum of law.

Attorneys and Law Firms.

Mel Marin, San Diego, CA, Pro Se.

ORDER DIRECTING PAYMENT OF FEE OR AMENDED IFP APPLICATION

LAURA TAYLOR SWAIN, Chief United States District Judge:

*1 Plaintiff brings this action pro se. To proceed with a civil action in this court, a plaintiff must either pay $402.00 in fees - a $350.00 filing fee plus a $52.00 administrative fee - or, to request authorization to proceed without prepayment of fees, submit a signed in forma pauperis (“IFP”) application. See 28 U.S.C. §§ 1914, 1915.

Plaintiff submitted with his complaint a motion seeking leave to proceed IFP, but he did not use the court's IFP application form or include the information requested on the court's form. (ECF 1.) Plaintiff asserted that because of privacy concerns, he did not list account numbers or other information, but stated that he did “not object to [providing] details after a sealing order.” (Id.) By order dated June 15, 2022, the Court directed Plaintiff to file an amended IFP application to indicate whether he: (1) has any money in cash or in a checking or savings account; (2) has any assets, and if so, their value; (3) has any expenses, debts, or other financial obligations, and, if so, their value; or (4) financially supports anyone else and, if so, the amount of support provided. The order stated that it was not necessary for Plaintiff to provide account numbers. (ECF 3.) On June 30, 2022, Plaintiff submitted a motion to seal the “financial records [he] wishes to submit to support his IFP request,” and “to amend” the Court's June 15, 2022 order. In his motion, Plaintiff cites a number of cases providing for the sealing of financial records and documents containing social security numbers. (ECF 4.)

Both the common law and the First Amendment protect the public's right of access to court documents. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-98 (1978); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004). This right of access is not absolute, and “the decision as to access [to judicial records] is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 598-99. A party seeking the sealing of court documents must overcome a strong presumption in favor of public access to judicial records, see Lugosch v. Pyramid Co., 435 F.3d 110, 119 (2d Cir. 2006), and “the burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such an action,” DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 826 (2d Cir. 1997).

The Court denies Plaintiff's request to seal his IFP application. As stated in the June 15, 2022 order, Plaintiff need not submit financial records or provide account numbers, but must simply fill out the requisite IFP application and answer the questions that will establish whether he qualifies for IFP status. The cases Plaintiff cites, which address financial records and documents listing social security numbers, are not relevant here, and he asserts no other facts suggesting that he is differently situated from other litigants seeking IFP status who submit the form without a sealing order.

*2 Within 30 days of the date of this order, Plaintiff must either pay the $402 in fees or complete, sign, and submit the attached IFP application. If Plaintiff submits the IFP application, it should be labeled with docket number 22-CV-2839 (LTS), and address the deficiencies indicated above by providing facts establishing that he is unable to pay the fees to bring this action. Plaintiff must answer each question on the amended IFP application form, and state all sources of income, all assets, and all monthly expenses but need not identify account numbers. If the Court grants the IFP application, Plaintiff will be permitted to proceed without prepayment of fees. See 28 U.S.C. § 1915(a)(1).

No summons shall issue at this time. If Plaintiff complies with this order, the action shall be processed in accordance with the procedures of the Clerk's Office. If Plaintiff fails to comply with this order within the time allowed, the action will be dismissed.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant demonstrates good faith when seeking review of a nonfrivolous issue).

SO ORDERED.

Attorneys and Law Firms.

Mel Marin, San Diego, CA, Pro Se.

ORDER

LAURA TAYLOR SWAIN, Chief United States District Judge:

*1 On June 15, 2022, the Court directed Plaintiff, within 30 days, to either pay the $402 in filing fees or submit an amended in forma pauperis (“IFP”) application. (ECF 3.) On June 30, 2022, Plaintiff submitted a motion to seal the “financial records plaintiff wishes to submit to support his IFP request,” and “to amend” the Court's June 15, 2022 order. (ECF 4.) By order dated July 18, 2022, the Court informed Plaintiff that he was not required to submit financial records, denied Plaintiff's motions, and granted him an additional 30 days to submit an amended IFP application. (ECF 5.) Plaintiff has now submitted motions seeking: (1) “to certify IFP issue for appeal or to reconsider denying of sealing”; and (2) “to stay this action until the circuit rules on the identical issue in another case which he just appealed,” Marin v. Yale, 22-CV-1025 (D. Conn.) (ECF 6, 8.)

DISCUSSION

Certification of an interlocutory order for immediate appeal is governed by 28 U.S.C. § 1292(b). Under that statute, certification is only appropriate if the district court determines: “(1) that such order involves a controlling question of law; (2) as to which there is a substantial ground for difference of opinion; and (3) that an immediate appeal from [that] order may materially advance the ultimate termination of the litigation.” In re Facebook, Inc., IPO Sec. and Derivative Litg., 986 F.Supp.2d 524, 529 (S.D.N.Y. Mar. 13, 2014) (citing 28 U.S.C. § 1292(b)). Because “interlocutory appeals are strongly disfavored in federal practice,” In re Ambac Fin. Grp., Inc. Sec. Litig., 693 F.Supp.2d 241, 282 (S.D.N.Y. 2010), the requirements of § 1292(b) must be strictly construed, and “only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Alphonse Hotel Corp. v. Tran, No. 13-CV-7859 (DLC), 2014 WL 516642, at *3 (S.D.N.Y. Feb. 10, 2014) (quoting Flor v. BOT Fin. Corp., 79 F.3d 281, 284 (2d Cir. 1996)). The proponent of an interlocutory appeal bears the burden of showing that these strict requirements are satisfied. See Casey v. Long Island R.R., 406 F.3d 142, 146 (2d Cir. 2005).

Plaintiff has not shown that the requirements of Section 1292(b) have been met. The Court previously informed Plaintiff that he need not submit financial records or provide account numbers, but must simply fill out the same IFP application submitted by any litigant who seeks waiver of the filing fees. Because the Court is not requiring Plaintiff to submit financial records, he is not entitled to an order permitting him to submit such records under seal. Accordingly, Plaintiff has not demonstrated that exceptional circumstances exist for the grant of an interlocutory appeal.

CONCLUSION

Plaintiff's motions are denied, and the Clerk of Court is directed to terminate them. (ECF 6, 8.)

The Court grants Plaintiff a final opportunity to comply with the June 15, 2022 order. Within 30 days from the date of this order, Plaintiff must either pay the $402 in fees, or submit an amended IFP application. No summons shall issue. If Plaintiff complies with this order, the case will be processed in accordance with the procedures of the Clerk's Office. If Plaintiff fails to submit an amended IFP application within the time allowed and does not show good cause to excuse such failure, the Court will enter a civil judgment consistent with this order and direct the Clerk of Court to terminate this matter without prejudice.

*2 The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

SO ORDERED.

Attorneys and Law Firms

Jim Walden, Daniel Joseph Chirlin, Georgia K. Winston, Ivy Xiaotian Yao, Walden Macht Haran & Williams LLP, New York, NY, Gary Leon Donoyan, The Law Office of Gary L. Donoyan, Manhasset, NY, for Plaintiff Team Kennedy.

Jed Rubenfeld, New Haven, CT, for Plaintiffs American Values 2024, Jeffrey Rose.

Erin Ruth McAlister, Katherine Rhodes Janofsky, Seth Jonathan Farber, New York State Office of the Attorney General, New York, NY, for Defendants.

OPINION & ORDER

ANDREW L. CARTER, JR., District Judge:

*1 “It is to be expected that [ ] voter[s] hope[ ] to find on the ballot a candidate who comes near to reflecting [their] policy preferences on contemporary issues. The right to vote is heavily burdened if that vote may be cast only for major-party candidates at a time when other parties or other candidates are clamoring for a place on the ballot.” Anderson v. Celebrezze, 460 U.S. 780, 787-788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (internal citations omitted); “[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (internal citations omitted).

One week after the Supreme Court of the State of New York ordered Robert F. Kennedy Jr., a candidate of the We The People Independent Body for Public Office of President of the United States (“We The People”) nomination petition to be invalidated, Team Kennedy, America Values 2024, and Jeffery Rose brought this emergency request for preliminary injunction, approximately twenty days before New York will begin printing and mailing out ballots, asking this Court to enjoin the New York State Board of Elections' (“NYSBOE”) enforcement of the State Court's decision and order the NYSBOE to keep Kennedy on the ballot. For the reasons set forth below, this Court denies this extraordinary relief. Plaintiffs have not demonstrated a likelihood of success on a constitutional injury.

BACKGROUND

The following facts are drawn from the Original Complaint (ECF No. 1), First Amended Complaint (“FAC”), Plaintiffs' memorandum in support of a temporary restraining order and/or preliminary injunction (ECF No. 34), Defendants' memorandum in opposition of Plaintiffs' motion for a preliminary injunction (ECF No. 46), Plaintiffs' reply memorandum in further support of a preliminary injunction (ECF No. 54), Defendants' memorandum in opposition to proposed Plaintiff-Intervenors motion to intervene (ECF No. 51), the State Court trial testimony (ECF No. 47Ex.1), and the documents relied upon therein.

I. Statutory Scheme

Under New York law, for an independent presidential candidate and their electors to secure nomination and access to the November General Election ballot, they must file an independent nominating petition with the NYSBOE. N.Y. Elec. Law §§ 6-138, 6-140, 6-142(1), 6-144. The independent nominating petition must include, among other requisites, the signatures of at least forty-five thousand New York voters and the candidate's “[p]lace of residence.” N.Y. Elec. Law §§ 6-140(1), 6-142(1). A candidate's “residence” is where they “maintain[ ] a fixed, permanent and principal home and to which [they], wherever temporarily located, always intend[ ] to return.” N.Y. Elec. Law § 1-104(22). A candidate's “residence” is where he “maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” N.Y. Elec. Law § 1-104(22). Eligible voters under N.Y. Elec. Law §§ 16-101(1) and 16-102 may bring a proceeding in the Supreme Court of New York to contest an independent presidential candidate nominating petition. N.Y. Elec. Law §§ 16-100(1), 16-101(1), 16-102(1).

II. Factual Background

*2 Kennedy resided in New York for the majority of his life. Cartwright v. Kennedy, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *2 (N.Y.App.Div. Aug. 29, 2024); ECF No. 47Ex.1, at 18. However, in November 2012, he sold his Bedford, NY property. ECF No. 47Ex.1, at 11. Then in 2014, Kennedy married Cheryl Hines, who resides in California, and testified that “one of [them] had to move.” Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *2.; ECF No. 47Ex.1, at 10. That same year, Kennedy moved his younger than-college-age children, an employee of forty years (and their family), pet emu, turtles, and three dogs to California with him. ECF No. 47Ex.1, at 10. Kennedy left behind 20 falcons and hawks in New York. ECF No. 47Ex.1, at 10. In 2015, Kennedy testified to living in his sister's residence for six months or less in New York, before it was sold on November 17, 2015. ECF No. 47Ex.1, at 12. Kennedy continued to use his sister's address to register to vote in the 2016 primary and general elections. ECF No. 47Ex.1, at 12.

After that, Kennedy stayed at his friend, David Michaelis's home in Bedford, NY, ¹ until January 2017. ECF No. 47Ex.1, at 7. Two or three weeks per month, Kennedy would arrive on Sunday nights to work at Pace University and Riverkeeper, both located in New York, then travel back to California on Tuesday. ECF No. 47Ex.1, at 7, 12. In 2017, Kennedy resigned from his positions at Pace University and Riverkeeper. ECF No. 47Ex.1, at 12. In a resignation letter dated March 10, 2017, to Riverkeeper Kennedy stated, “[a]s you know, I now live on the west coast and the weekly commute has been hard on my family to say nothing of my carbon footprint.” ECF No. 47Ex.1, at 12.

1 Plaintiffs claim that listing a candidate's residence is an unnecessary burden, dangerous in light of safety concerns for political candidates. The Court takes seriously safety concerns of all litigants. Plaintiffs never sought to redact Kennedy's address on the nominating petition, and Plaintiffs cite to specific addresses throughout their filings in this case, without seeking redaction/sealing. Balancing the public's First Amendment right of access with the privacy interests of Kennedy, and others mentioned in this case, the Court will not mention specific addresses in this opinion. If Plaintiffs seeks to refile redacted versions of the pleadings in this case, they should notify the Court.

In 2021, Kennedy purchased a home with his wife in California. ECF No. 47Ex.1, at 11. Kennedy and Hines owned real property in California and Massachusetts but not in New York. ECF No. 47Ex.1, at 11. On Kennedy's Federal Election Commission paperwork, he listed his address as 2975 Mandeville Canyon Road. ECF No. 47Ex.1, at 10. Kennedy also works as counsel for Howard & Street in California. ECF No. 47Ex.1, at 11.

On April 19, 2023, Kennedy declared his intention to run for President of the United States with America Values 2024, “a political action committee,” spending “millions of dollars supporting and advocating [his] candidacy.” Cartwright v. Kennedy, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3; ECF No. 34, at 4. In November 2023, Kennedy's lawyer, Paul Rossi, advised him that his “current domicile” “under New York Law and under every other law” is at a specific address in Katonah, New York. ECF No. 47Ex.1, at 21.

On May 28, 2024, Team Kennedy, Kennedy's campaign organization, submitted an independent nomination petition for Kennedy to the NYSBOE. ECF No. 34, at 2-3. The petition listed Kennedy's place of residence as the address in Katonah, New York, and contained 146,467 signatures. ECF No. 51, at 7; ECF No. 47-Ex.1, at 13. Rose, a New York resident, was one of those signatories. ECF No. 34, at 4. The petition also included Nicole Shanahan, a California resident, as the candidate for vice president. Cartwright, No, CV-24-1294, 2024 WL 3977541, at *1, 230 A.D.3d 969; ECF No. 34, at 11.

*3 Kennedy claimed, from 2023, to have let a room in the Katonah property, owned by his childhood friend's wife, Barbara Moss. ECF No. 34, at 4; ECF No. 47Ex.1, at 16-17. However, no lease agreement was executed, and Moss received her first payment from Kennedy after a New York Post article was published about Kennedy on May 20, 2024. ECF No. 47Ex.1, at 14, 17. Moss testified that Kennedy spent just one night at her residence, and that was in June 2024. ECF No. 47Ex.1, at 16. Kennedy also testified that he did not have a lot of “physical attachment” or “a physical presence” at the Katonah property. ECF No. 47Ex.1, at 6-7. However, Kennedy testified he intended to return and paid income taxes in New York. ECF No. 54, at 7; ECF No. 47Ex.1, at 13-14.

On May 31, 2024, and June 10, 2024, Voter-Objectors filed petitions in two separate state actions to invalidate Kennedy's nominating petition based on deficiencies in the petition's residency and signature requirements. ECF No. 46, at 6. The petition was filed against Kennedy and the Commissioners of the NYSBOE: Henry T. Berger, Peter S. Kosinski, Essma Bagnuola, Anthony J. Cassale, Kristen Zebrowski Stavisky, and Raymond J. Riley III. ECF No. 46, at 6. On July 16, 2024, the Commissioners of the NYSBOE found Kennedy's petition had sufficient signatures and was valid “subject to judicial action in any court proceedings.” ECF No. 46 at 6.

In August 2024, Kennedy suspended his presidential campaign and endorsed another candidate. ECF No. 46 at 2, 15.

III. Procedural History

A. Proceedings in Federal Court

On May 21, 2024, Team Kennedy commenced this action challenging New York Election Law provisions governing the time and manner for the requisite collection of signatures for an independent candidate and their electors to secure nomination and access to the November General Election ballot, under the First and Fourteenth Amendments. ECF No. 1. On August 22, 2024, Team Kennedy filed an Amended Complaint, adding two parties (American Values 2024 and Rose) and two new claims under the First and Fourteenth Amendments. FAC; ECF No. 46, at 9. Plaintiffs claimed that N.Y. Elec. Law §§ 1-104(22), 6-140(1), which required the disclosure of an independent presidential candidate's place of residence on a nominating petition, was unconstitutional. Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3; FAC; ECF No. 46, at 9-10; ECF No. 34, at 9-12. On August 22, 2024, Plaintiffs also filed an emergency motion for an order to show cause for a temporary restraining order and a preliminary injunction seeking to restrain and enjoin the State Court's August 13, 2024, ruling and NYSBOE from removing Kennedy's name from the ballot, as an independent party candidate for the office of the President of the United States. ECF Nos. 33, 34.

On September 4, 2024, the Court conducted a hearing on Plaintiffs' application for a preliminary injunction. Representatives for Team Kennedy, American Values 2024, Rose, Berger, Kosinski, Bagnuola, Cassale, Stavisky, Rilley, James, Cartwright, Nelson, and Rhone appeared. Plaintiffs filed a Motion for Leave to file a Second Amended Complaint on September 9, 2024. ECF Nos. 70-71.

B. Proceedings in State Court

On May 31, 2024, two New York voters filed a petition under N.Y. Elec. Law § 16-102, against Kennedy and the Commissioners of the NYSBOE in New York Supreme Court, Nassau County, seeking to invalidate Kennedy's nominating petition. Smith v. Kennedy, 83 Misc.3d 1239(A), 212 N.Y.S.3d 921, at *1 (N.Y. Sup. Ct. 2024). The Petitioner-Objectors claimed Kennedy's nominating petition was “invalid and lacks the requisite number of signatures sufficient to be placed on the ballot.” id.; see N.Y. Elec. Law §§ 6-138, 6-140, 6-142(1).

On June 10, 2024, four New York voters filed a petition under N.Y. Elec. Law § 16-102, against Kennedy and the Commissioners of the NYSBOE in New York Supreme Court, Dutchess County, seeking to invalidate Kennedy's nominating petition. Cartwright v. Kennedy, No. 906349-24, 2024 WL 3880344, at *2 (N.Y. Sup. Ct. July 23, 2024). The Petitioner-Objectors claimed Kennedy's nomination petition should be invalidated, “on a myriad of grounds, including allegations that a number of subscribing witness statements and individual signatures suffer from fatal defects, that fraudulent methods were used during the signature collection process, and that respondent Kennedy falsely represented on the nominating petition that he is a resident of New York State when in truth he is a resident of California.” Id. On August 13, 2024, the State Court granted the petition in its entirety and ordered the invalidation of the nomination petition filed to designate Kennedy as the presidential candidate, Shanahan as the vice-presidential candidate, and the electors for We The People. Cartwright v. Kennedy, No. 906349-24, 2024 WL 3894605, at *15-16 (N.Y. Sup. Ct. Aug. 13, 2024), aff'd, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541. The court found that Kennedy's address listed on the nomination petition was not his “bona fide and legitimate residence, but merely a ‘sham' address” therefore violating New York Election Law. id.; see N.Y. Elec. Law §§ 1-104(22), 6-138, 6-140.

*4 Kennedy appealed the decision to the Appellate Division, Third Department, claiming the New York Election law violated the First, Twelfth, and Fourteenth Amendments. Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3. On August 29, 2024, the Third Department affirmed the state trial court's August 13, 2024 judgment. Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3-4. On September 10, 2024, the Court of Appeals of New York dismissed Plaintiffs' pending appeal of the Third Department's decision. 2024 N.Y. Slip Op. 73915, In the Matter of Caroline Cartwright, et al., Respondents, v. Robert F. Kennedy Jr., et al., Appellants, et al., Respondents., No. 2024-632, 2024 WL 4127460, at *1 (N.Y. Sept. 10, 2024)

STANDARD OF REVIEW

“[T]o obtain a preliminary injunction against governmental action taken pursuant to a statute, the movant has to demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction. The movant also must show that the balance of equities tips in his or her favor.” Yang v. Kosinski, 960 F.3d 119, 127 (2d Cir. 2020) (internal quotation marks, footnote, and alteration omitted). A district court may enter a prohibitory preliminary injunction staying “government action taken in the public interest pursuant to a statutory or regulatory scheme” only when the moving party has demonstrated that (1) absent injunctive relief, he will suffer “irreparable injury,” and (2) there is “a likelihood that he will succeed on the merits of his claim.” Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (internal citations omitted).

The Second Circuit has held that in the temporary restraining order or preliminary injunction context, the status quo is “the last actual, peaceable uncontested status which preceded the pending controversy.” Mastrio v. Sebelius, 768 F.3d 116, 120 (2d Cir. 2014) (quotation marks and internal citations omitted). The Second Circuit has also explained that the status quo “is really a ‘status quo ante,' ” which is intended to preclude “[parties] from seeking shelter under a current ‘status quo' precipitated by their wrong-doing.” North American Soccer League, LLC v. United States Soccer Fed'n, Inc., 883 F.3d at 32, 37 n.5 (2d Cir. 2018)

The Parties dispute whether Plaintiffs seek a prohibitory or mandatory injunction. Plaintiffs assert that the last peaceable uncontested status was when the Board of Elections voted and decided that Kennedy's petitions were valid. Preliminary Injunction Hearing Transcript (“Hearing Tr.”) at 6:18-7:4. At that point he was on the ballot. Id. The controversy is that the State Court ruling knocked him off the ballot, and therefore this a prohibitory injunction not a mandatory one. Id. Defendants argue that Plaintiffs seek a mandatory injunction because the Board of Elections had never determined Kennedy was going on the ballot, and always recognized that this residence question was for the State Court to decide. Id. at 12:10-13:11.

Here, the last actual, peaceable, uncontested status between the Parties was on July 29, 2024 when Defendant Board Commissioners determined that Kennedy's petition was valid “subject to judicial action in any court proceeding.” Def. Opp., ECF No. 46 at 6. As such, Plaintiffs seek a prohibitory injunction to enjoin enforcement of the State Court's decision to invalidate Kennedy's nominating petition. ²

2 Given the Court's finding that Plaintiffs are unlikely to succeed on the merits of their requested prohibitory injunction, Plaintiffs fail to meet the heightened standard of “clear and substantial” likelihood of success for mandatory injunctions.

*5 Plaintiffs are not subject to the heightened standard for mandatory injunctions, and therefore only need to show a “greater than fifty percent probability of success.” Citigroup Glob. Markets, Inc., 598 F.3d at 34-35 (2d Cir. 2010).

DISCUSSION

Before turning to the merits, the Court will address Defendants' non-merit-based objections to the preliminary injunction in turn: abstention, mootness, collateral estoppel, and res judicata.

I. This Court's Exercise of Subject Matter Jurisdiction is Proper

Because the existence of subject matter jurisdiction is a threshold question, the Court must resolve jurisdictional issues before delving into the merits of a dispute. See McCrory v. Adm'r of the Fed. Emergency Mgmt. Agency of the United States Dep't of Homeland Sec., 22 F.Supp.3d 279, 286-87 (S.D.N.Y. 2014). The First Amended Complaint indicates that this Court has jurisdiction under the U.S. Constitution, 28 U.S.C. § 1331, and 42 U.S.C. § 1983. See FAC ¶ 25. This Court has subject matter jurisdiction and will not abstain from exercising that jurisdiction.³

3 In their Opposition Brief, Defendants argued that this Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine. During Oral Argument, Defendants conceded that this doctrine does not apply and does not deprive this Court of subject matter jurisdiction. Hearing Tr. at 13: 20-25. This Court dismisses Defendants' Rooker-Feldman argument because the state-court case had not ended by the time Plaintiffs filed this action. See Hunter v. McMahon, 75 F.4th 62, 70 (2d Cir. 2023) (“If a ... state-court appeal remains pending ... the state-court proceedings have not ended and Rooker-Feldman does not apply.”).

In deciding whether to abstain under Colorado River, a district court must first determine whether the federal and state court cases are parallel. Federal and state proceedings are parallel for purposes of abstention when the two proceedings are “essentially the same” -- when there is an identity of parties, and the issues and relief sought are the same. Id. If the actions are deemed parallel, courts are then to consider six factors to determine whether abstention is appropriate. These factors are: (1) the assumption of jurisdiction by either court over any res or property; (2) the inconvenience of the federal forum; (3) the avoidance of piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether state or federal law supplies the rule of decision; and (6) whether the state court proceeding will adequately protect the rights of the party seeking to invoke federal jurisdiction. Nat'l Coal. on Black Civic Participation v. Wohl, 498 F.Supp.3d 457, 473 (S.D.N.Y. 2020) (internal citations and quotations omitted).

In this case, although the issues are the same, the parties are not identical to those of the State Court proceedings. Compare Cartwright v. Kennedy, No. 906349-24, ___N.Y.S.3d ____, 2024 N.Y. Misc. LEXIS 3768 (N.Y. Sup. Ct. Albany Cnty. Aug. 13, 2024) with FAC ¶¶ 12-24. Even if the parties were identical, in applying the six-factor test, Colorado River would not apply. See U.S. Bank Nat'l Assoc. v. E. Fordham De LLC, 385 F.Supp.3d 256, 258 (S.D.N.Y. 2019), aff'd 804 Fed.Appx. 106 (2d Cir. 2020) (“Colorado River abstention is reserved for exceptional circumstances.”).

*6 Because the first two factors are irrelevant and do not apply to this case, they are neutral. Neutrality weighs against abstention. Gentes v. Osten, No. 21-2022-CV, 2022 WL 16984686, at *3 . (2d Cir. Nov. 17, 2022).

Regarding the third factor, (“[t]here is no threat of piecemeal litigation” if “[t]he resolution of the federal constitutional questions will settle the federal issues, regardless of the outcome of the state litigation”). Alliance of Am. Insurers, 854 F.2d at 603 (full cite).

The fourth factor disfavors abstention because this proceeding, Team Kennedy et al. v. Berger et al., (1:24-cv-03897-ALC) (filed May 20, 2024) predated the state case. Cartwright et al. v. Kennedy et al., 906349-24 (filed June 10, 2024). De Cisneros v. Younger, 871 F.2d 305, 308 (2d. Cir. 1989) (“The fourth factor looks at the chronological order in which the actions were filed.”).

Under the fifth factor, since federal law supplies the rule of decision, abstention is disfavored. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“the presence of federal-law issues must always be a major consideration weighing against surrender [of federal jurisdiction].”).

The sixth factor favors abstention. We consider whether the procedures of New York's state courts “are adequate to protect [Kennedy's] federal rights.” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 103 (2d Cir. 2012) (internal citation omitted). Specifically, we are to determine whether “the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties.” Id. We do not doubt that the New York courts provide a fair alternative forum that is capable of resolving the constitutional issues Kennedy alleges.

Balancing the factors militates against abstention. Moreover, federal courts have an obligation to exercise jurisdiction in all but the most exceptional circumstances. “[W]here a federal court has subject matter jurisdiction, it has a ‘virtually unflagging obligation to exercise that jurisdiction,' even if an action concerning the same matter is pending in state court.” Mochary v. Bergstein, 42 F.4th 80, 84 (2d Cir. 2022) (internal citation omitted). In recognition of that principle, this Circuit has insisted on a “heavy presumption” against “[a]bstention from the exercise of federal jurisdiction.” LeChase Constr. Servs., LLC v. Argonaut Ins. Co., 63 F.4th 160, 173 (2d Cir. 2023) (internal citations omitted). “In abstention cases, the district court's discretion must be exercised within the narrow and specific limits prescribed by the particular abstention doctrine involved,” such that “there is little or no discretion to abstain in a case which does not meet traditional abstention requirements.” Niagara Mohawk Power, 673 F.3d at 99 (citation omitted)

The Court will not abstain, and therefore this Court's exercise of subject matter jurisdiction is proper.

II. This Case is Not Moot

Defendants claim that since Kennedy suspended his campaign and has stated he has no path to victory the case is moot. This argument is unavailing. A suspended campaign is different from a terminated campaign, and in any event, there is no requirement that a candidate must be likely to win, have a real possibility of winning, or even want to win a presidential election in order to be on the ballot for a particular state. ⁴ As Team Kennedy has stated, there are important goals for Kennedy and his party in future elections in New York if Kennedy garners five percent of the national vote. Under New York law, his party will qualify as a party automatically eligible for placement on the ballot at a future election if he receives a significant percentage of the New York vote. See Election Law §§ 1-104(3), 6-128.

4 Whether suspending a campaign or only appearing on ballots for some states is a prudent political strategy is irrelevant to the legal issues in this case. The prudence of such a strategy will be debated by an array of political pundits, a flock of history and political science professors, and a chattering of voices on social media.

III. Res Judicata and Collateral Estoppel Do Not Bar This Action

A. Claim Preclusion (Res Judicata) ⁵

5 To determine if res judicata applies to a New York state court judgment, federal courts apply New York res judicata law. See New York v. Mountain Tobacco Co., 942 F.3d 536, 543 (2d Cir. 2019).

*7 For a party to succeed on the affirmative defense of res judicata-also known as claim preclusion- it “must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved plaintiffs or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been raised in the prior action.” Mendez v. Pretium Mortg. Credit Partners I, Loan Acquisition, LP, No. 21-CV-826(KAM)(JRC), 2023 W; 8283148, at *13 (E.D.N.Y. Nov. 30, 2023).

The parties do not dispute the third element. At a minimum the federal constitutionality of New York's residence requirement could have been raised in the prior action.

1. Adjudication on the Merits

The issue of federal constitutionality of the residence requirement was decided on the merits. As discussed in the section on issue preclusion, the State courts decided the issue. Cartwright, No. 906349-24, 2024 WL 3894605, at *15; Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3. A ruling by the Appellate division counts as a decision on the merits. Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3-4.

2. Privity

“[P]laintiffs in a federal suit that follows a state suit are in privity with the state plaintiffs where ‘their interests are the same and [the federal plaintiffs] are controlled by the same party or parties' as the state plaintiffs.” Hoblock v. Albany Cnty. Nd. of Elections, 422 F.3d 77, 95 (2d Cir. 2005) (brackets in original) (quoting Ferris v. Cuevas, 118 F.3d 122, 128 (2d Cir. 1997)).

For privity, the federal plaintiffs must have the same interests and be controlled by the same party or parties as the state plaintiffs. id.

i. Same Interests

Plaintiffs do not dispute that Kennedy has identical interests with his campaign. But there are three plaintiffs here: Team Kennedy, American Values 2024, and Jeffrey Rose. ⁶ While Team Kennedy shares identical interests with the state Defendant, Robert Kennedy Jr., the other federal plaintiffs may not share all of the same interests with the state plaintiffs.

6 The Court takes notice that Plaintiffs have sought leave to file a second amended complaint to include class action allegations pursuant to Fed. R. C. O. 23(b)(2) on behalf of classes of voters who are similarly situated to Mr. Rose, including: (1) all New York voters who in 2024 signed a petition seeking to place any independent or non-recognized-party presidential candidate on the ballot; (2) all New York voters who are not registered in political parties whose nominees for President will be on the ballot in 2024; and/or (3) all New York voters “whose political preferences lie outside the existing political parties.” Pl. Memo. Mot. Leave to Amend, ECF No. 71 at 2.

American Values 2024 has a different motivation for having Kennedy on the ballot-this Political Action Committee wants independent candidates on state ballots. This is not limited to Kennedy; American Values 2024 supports even opponents of Kennedy on the ballot. Mr. Rose wants Kennedy on the ballot in order to vote for Kennedy in this election; he may not be necessarily concerned about Kennedy's party being placed on future ballots, or Kennedy's eligibility for certain federal benefits. Because Mr. Rose represents a class of putative voters, all members of this class do not have identical motivations for having Kennedy placed on the ballot. In addition, voters' interests carry greater weight than the interests of Kennedy-the voter has a constitutional right to vote for a candidate of their choice, but a candidate has no constitutional right to be on a ballot.

*8 However, motivations need not be identical for there to be an identity of interest. All of these plaintiffs share one identical interest: having Kennedy placed on the ballot. The Court finds that this shared desired outcome is sufficient to satisfy the same interest requirement.

ii. Control

Defendants are correct that “there can be no dispute that Kennedy and his principal campaign are one in the same, because Kennedy is certainly in control of his own campaign.” Def. Opp., ECF No. 46 at 14. Plaintiffs do not meaningfully challenge this argument. But American Values 2024 is not controlled by Team Kennedy nor Robert Kennedy Jr. Both American Values 2024 and Mr. Rose have a different attorney than the attorneys representing Team Kennedy. Perhaps more importantly, Mr. Rose represents a class of putative voters. Kennedy certainly does not control them. ⁷ Accordingly American Values 2024 and the class of putative voters, represented by Mr. Rose, are not in privity with Kennedy.

7 In the First Amended Complaint, Jeffrey Rose is listed as a plaintiff in his individual capacity. Rose's counsel has indicated that he wishes to amend the complaint, stating that Rose represents a putative class of independent voters. For purposes of this opinion, the Court will assume that the Second Amended Complaint will be accepted.

Because Defendants bear the burden to establish res judicata, and they have failed to establish that Kennedy controls American Values 2024 and Mr. Rose (on behalf of himself and the putative class), the defense does not apply to them. ⁸ See, e.g., Hoblock, 422 F.3d at 91 (“It remains possible, however, that the plaintiff voters and candidates are in privity if the candidates in fact are controlling the voters' federal suit, not to advance the interests of all voters who submitted challenged absentee ballots, but rather to further the interests of the candidates and a subset of voters whose interests do coincide exactly with those of the candidates.”) If the plaintiff voters are in reality the candidates' pawns, then by definition the plaintiff voters' interests are identical to the candidates' (and different from the interests of all similarly situated voters) and were adequately represented in the candidates' state-court lawsuit.

8 Because Team Kennedy is in privity with Kennedy, and the other requirements of res judicata have been met, it is unlikely that Team Kennedy would succeed on the merits.

B. Collateral Estoppel (Issue Preclusion)

Under New York law, ⁹ issue preclusion will apply only if “(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom [issue preclusion] is asserted had a full and fair opportunity to litigate the issue in the first proceeding.” Hoblock, 422 F.3d at 94 (2d Cir. 2005) (internal citation omitted). Under New York law, the doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. Ripley v. Storer, 309 N.Y. 506, 517, 132 N.E.2d 87 (1956); see also Restatement (Second) of Judgments § 2 (1982); 46 Am. Jur. 2d Judgments § 415; 9 Carmody-Wait 2d, NY Prac, Judgments, § 63:205.

9 Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must apply New York issue preclusion (collateral estoppel) law to New York state-court judgments. Hoblock, 422 F.3d at 93.

*9 “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.” Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 482 N.E.2d 63 (1985) (internal citation omitted).

1. Whether the Issue Was Actually Decided

The Supreme Court in Albany decided that the residence requirement complied with the U.S. Constitution. Cartwright v. Kennedy, No. 906349-24, 2024 WL 3894605, at *15-16 (N.Y. Sup. Ct. Aug. 13, 2024), aff'd, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541. The Third Department also found that Kennedy's federal constitutional challenges were without merit. Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3-4.

Plaintiffs in the State Court matter did not bring claims under the federal Constitution. The claims dealt solely with the application of New York Election law as it applied to Kennedy under New York law. Kennedy raised the federal constitutional issue in his answer, requesting the State Supreme Court to address it. He raised the issue in the Third Department. He appealed the Third Department's decision to the Court of Appeals. See Cartwright, No. 906349-24, 2024 WL 3894605, at *15; Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3; Cartwright, No. 2024-632, 2024 N.Y. Slip Op. 73915. Both State courts came to a determination on the constitutional issues. Kennedy got answers. He didn't like them. He cannot now claim that the issue was not actually decided by the State courts and that it is not precluded in this action. ¹⁰ He made it necessary for those decisions to be rendered, through the same lawyer representing Team Kennedy here and in the Appellate Division.

10 Arguing that the constitutional issue was not actually decided below, Plaintiffs cite to an out of context statement Judge Ryba made during trial when discussing the proper scope of witness testimony when Kennedy attempted to establish his claim of unconstitutionality though his attorney Rossi's testimony although he was not disclosed or shown to be qualified as an expert in either Constitutional or New York State Law. Cartwright v. Kennedy, 2024 WL 3860022, *____, 2024 N.Y. Misc. LEXIS 3768, *51 (N.Y. Sup. Ct. Albany County Aug. 13, 2024). She noted, “We're not going to start a constitutional trial on the last day of testimony.” (ECF No. 56-1, 205:5-10). Her statement does not detract from the State Supreme Court's findings on the constitutional issues. 11 Given the paucity of case law on this issue, this analysis is a context-specific inquiry closely wedded to the facts at hand. For the purposes of analyzing this specific case, this Court distinguishes between rulings and outcomes.

2. Whether the Issue Was Necessarily Decided ¹¹

11 Given the paucity of case law on this issue, this analysis is a context-specific inquiry closely wedded to the facts at hand. For the purposes of analyzing this specific case, this Court distinguishes between rulings and outcomes.

Since collateral estoppel requires that an issue be necessarily decided in the prior proceeding, “a finding which is but an alternative ground for the prior court's decision” will not ordinarily be given preclusive effect. Malloy v. Trombley, 50 N.Y.2d 46, 49, 427 N.Y.S.2d 969, 405 N.E.2d 213 (1980); see Pollicino v. Roemer & Featherstonhaugh P.C., 277 A.D.2d 666, 716 N.Y.S.2d 416 (3d Dep't 2000). Moreover, language that is not necessary to resolve an issue, constitutes dicta and should not be accorded preclusive effect. See Stokes v. Stokes, 172 N.Y. 327, 341, 65 N.E. 176 (1902).

*10 The State Court's ruling on the constitutional issue was neither dicta nor an alternative ground for arriving at the ultimate decision or outcome of the case. This was not simply part of the court's thought process or comments regarding the policy considerations further justifying the ruling. To the extent Plaintiffs claim that it was not necessary for the state courts to rule at all on the second issue-whether the residence requirement complies with the federal constitution-this argument fails.¹² Cartwright, No. 906349-24, 2024 WL 3894605, at *14-15.

12 Plaintiffs do not explicitly raise the argument that the constitutional issues were not necessarily decided at the State Court, but that Judge Ryba erred by not addressing the constitutional issues, which the Court understands to be an argument that the constitutional issues were not actually decided. They assert that the state trial court “expressly blocked the constitutional rights that Plaintiffs seek to vindicate here from being litigated in the state court.” Pl. Reply at 4.

As relevant here, the State Court ruled on two issues: (1) Kennedy's listed residence did not comply with New York's residence requirement under New York Election law; (2) New York's residence requirement complies with the federal constitution. Plaintiffs do not challenge, in this litigation, the State Court's first ruling, nor do they claim that the first ruling was unnecessary. ¹³ See Cartwright, No. 906349-24, 2024 WL 3894605, at *14-15; Cartwright, No. CV-24-1294, 230 A.D.3d 969, 2024 WL 3977541, at *3

13 Even though a judge's rulings on discrete legal issues contribute to the ultimate outcome of a case, the concepts of ruling on discrete legal issues and the ultimate outcome are distinct. There were two possible outcomes: Kennedy is placed on the ballot or Kennedy is not on the ballot. There are two possible rulings regarding the discrete legal issue concerning constitutionality of the residence requirement: it violates the Constitution or it does not. If the state courts had chosen the other possible alternative regarding constitutionality-stating that the residence requirement violated the Constitution-the outcome would be different. Kennedy would appear on the ballot. Due to the Supremacy Clause, the state courts could not state that although the residence requirement violates the constitution, Kennedy should not be placed on the ballot because his residence isn't valid under New York law. Therefore, it was necessary for the Court to decide the issue since the ruling on that discrete issue could change the ultimate outcome of the case. The state courts could not simply ignore the constitutional issue raised by Kennedy.

The State Court decided that the residence requirement did not violate the constitution. That ruling, standing alone, would not keep Kennedy off the ballot. The ruling regarding constitutionality was tethered to the State Court's decision regarding compliance with the residence requirement, not an alternative basis that would result in excluding Kennedy from the ballot. See Stegemann v. Rensselaer Cty. Sheriff's Office, 2021 WL 5492966, *___, 2021 U.S. App. LEXIS 34783, *11-12 (2d Cir. 2021) (holding that an issue was necessary to the resolution of a motion because it was at the heart of the alleged constitutional injury) (citing to Kret by Kret v. Brookdale Hosp. Med. Ctr., 93 A.D.2d 449, 458-59, 462 N.Y.S.2d 896 (N.Y. A.D.2d Dep't 1983)).

3. Whether Plaintiffs Had a Full and Fair Opportunity to Litigate

Kennedy had a full and fair opportunity to adjudicate the claim. The trial court stated that this was not a constitutional trial, meaning there was no need for witness testimony on the constitutional issue. Plaintiffs claim that “little record was allowed to be made on the constitutional issues, and the Appellate Division addressed the constitutional issues only in a single conclusory paragraph devoid of reasoning, facts, or analysis.” Pl. Reply at 7-8, ECF No. 54.

*11 Plaintiffs claim that this deprived them of a full and fair opportunity to litigate the issue. Plaintiffs are wrong. Plaintiffs rely on West v. Ruff, 961 F.2d 1064, 1065-66 (2d Cir. 1992) for this proposition. In West, the Court found the lack of a fair opportunity to litigate “because (1) the appointment of counsel in the federal matter pursuant to Hodge reflected a finding that West's claim had colorable substance and could not be adequately presented pro se; (2) West had at best a single day's notice of his state trial; (3) his appointed counsel in a factually identical federal case was never notified of the parallel state litigation; (4) the Court of Claims judge had no notice of the potential availability of appointed counsel; and (5) West has shown prejudice in the availability of an eyewitness in circumstances in which he seems to have had neither discovery nor sufficient notice to obtain the presence of the witness.” id.

In this case Kennedy and Team Kennedy were not pro se and were represented by the same attorney in the state and federal proceedings. Plaintiffs point to no case law indicating that testimony from witnesses must be held before a court can determine constitutional issues. Although in a passing statement, made in the midst of an expedited bench trial, the Supreme Court judge indicated that the federal constitutional issue was not before them, the judge ultimately ruled on the issue.

It matters not that the state judges declined to write a tome, instead choosing to decide the issue with brevity. Plaintiffs have not carried their burden to show that they lacked a full and fair opportunity to litigate the issues.

Because Defendants have failed to establish that the American Values 2024 and the voters, represented by Mr. Jeffrey Rose, were in privity in both the State action and the instant action, collateral estoppel does not apply. Team Kennedy is in privity with Kennedy. Since the other requirements for collateral estoppel have been met, the defense makes it unlikely that Team Kennedy would succeed on the merits.

IV. Plaintiffs Have Failed to Prove Likelihood of Success on the Merits

A. Standard for Constitutional Challenges to State Election Laws - Anderson-Burdick Framework

This Circuit has held that when considering whether a state election law imposes an unconstitutional burden on voting rights, instead of strict scrutiny, courts apply what has come to be known as the Anderson-Burdick framework derived from Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Sam Party of N.Y. v. Kosinski, 987 F.3d 267, 271 (2d Cir. 2021). Under this standard, the rigorousness of the court's inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Id. (citing Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)) (internal quotation marks removed). First, if the restrictions on those rights are severe, then strict scrutiny applies. Id. But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State's important regulatory interests are generally sufficient to justify the restrictions. Id. This latter, lesser scrutiny is not pure rational basis review. Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 108 (2d Cir. 2008). Rather, “the court must actually ‘weigh' the burdens imposed on the plaintiff against ‘the precise interests put forward by the State,' and the court must take ‘into consideration the extent to which those interests make it necessary to burden the plaintiff's rights.' ” Id. at 108-09 (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059). Review under this balancing test is “quite deferential,” and no “elaborate, empirical verification” is required. Id. at 109 (quoting Timmons, 520 U.S. at 364, 117 S.Ct. 1364).

1. Whether Strict Scrutiny Applies

*12 Plaintiffs argue that the residence requirement is both severe and discriminatory as applied, ¹⁴ and thus subject to strict scrutiny because this case is closely analogous to Anderson. Moreover, Plaintiffs allege that the constitutional interests in this case are identical to that of Anderson and the state interests here are weaker. As described in depth below, this assertion is misguided. This Circuit has made clear that certain election law requirements that function as presumptively higher hurdles to the ballot for independent parties pass constitutional muster.

14 Plaintiffs have confirmed that they assert an as-applied challenge to the residence requirement. They do not argue that the statute is constitutionally impermissible on its face such that no application of the statute would be constitutional but and as-applied to Kennedy operates unconstitutionally as to him because of his particular circumstances. See Hearing Tr. 71: 13-19.

In Sam Party of N.Y. v. Kosinski, the Second Circuit affirmed a Southern District of New York Court's denial of preliminary relief where the plaintiff political organization was unlikely to succeed on the merits of its First and Fourteenth Amendment claims. Sam Party of N.Y., 987 F.3d at 274. When applying the Anderson-Burdick framework, the Court found that New York's presidential-election party-qualification requirement did not impose a severe burden on minor parties, even though the amendment significantly changed the method New York had employed for 85 years to confer party status on a political organization. Id. at 275. The amendment raised the threshold from 50,000 votes to the greater of 130,000 votes or two percent of the total vote, and instead of requalifying every four years, political organizations now had to requalify by meeting the higher threshold in the gubernatorial and presidential elections. Id. at 272. Ultimately, the Circuit held that the State set forth a coherent account of why the requirement would help guard against disorder and waste. Id. at 278.

In Sam Party, the constitutional interests at issue were identical to the ones asserted in this case, the state's interests were similarly situated, and the requirement at issue was far weightier than requiring candidates to accurately disclose his or her place of residence. Because the burden against constitutional rights is minimal and nondiscriminatory, strict scrutiny does not apply.

a. Severity of Burden

Plaintiffs claim that the residence requirement is a severe burden that falls unequally on independent candidates. Courts have identified three types of severe burdens on the right of individuals to associate as a political party: (1) regulations meddling in a political party's internal affairs; (2) regulations restricting the core associational activities of the party or its members; and (3) regulations that make it virtually impossible for minor parties to qualify for the ballot. Sam Party of N.Y., 987 F.3d at 275 (collecting cases). When considering the impact of the ballot access process, the “hallmark of a severe burden is exclusion or virtual exclusion from the ballot.” Libertarian Party of Conn. v. Lamont, 977 F.3d 173, 177 (2d Cir. 2020). To gauge whether minor parties have been so burdened, we look at the “combined effect of [New York's] ballot-access restrictions.” Libertarian Party of Ky., 835 F.3d at 575 (internal quotation marks omitted).

It is certainly true that at present Kennedy is completely excluded from the ballot. But this is not dispositive. In Libertarian Party v. Lamont, the Second Circuit held that Connecticut's petitioning laws which prevented Libertarian Party candidates from appearing on the ballot did not impose a severe burden on their First and Fourteenth Amendment rights. Libertarian Party of Conn., 977 F.3d at 177. The Court found that a reasonably diligent candidate could be expected to satisfy the signature requirements and gain a place on the ballot. Id. at 179. Here, a reasonably diligent candidate can meet the residence requirement under New York law and gain a place on the ballot. ¹⁵ As set forth by the State Court, the applicable standard of residency under New York law provides:

15 The Court need not determine whether the disclosure of an address on a nominating petition, standing alone, is a severe burden. However, the Court does recognize the legitimate safety concerns that candidates express when required to publicly list the addresses of their residence.

*13 According to Election Law § l-104 (22) and New York State case law, a residence is that place where a person maintains a fixed, permanent, and principal home and to which he or she, wherever temporarily located, always intends to return. As used in the Election Law, the term ‘residence' is synonymous with ‘domicile'. Case law has also established that an individual having two residences may choose one to which she or he has legitimate, significant and continuing attachments as her or his residence for purposes of the Election Law. The crucial factor in determining whether a particular residence complies

with the requirements of the Election Law is that the individual must manifest an intent to reside there, coupled with physical presence, without any aura of sham.

Cartwright v. Kennedy, 2024 WL 3860022, *___, 2024 N.Y. Misc. LEXIS 3768, *5 (N.Y. Sup. Ct. Albany County Aug. 13, 2024)

Residency is generally a factual question, dependent on the particular circumstances presented. Matter of Glickman v Laffin, 27 N.Y.3d 810, 815, 37 N.Y.S.3d 792, 59 N.E.3d 527 (2016) [citation omitted]. Notwithstanding Plaintiffs' assertion that candidates like Kennedy, who have more than one home are forced by the residence requirement to guess at and gamble on which of his residences a New York court will later determine to satisfy the state's domiciliary “permanent home” definition, New York case law is clear. The “Election Law does not preclude a person from having two residences and choosing one for election purposes provided he or she has legitimate, significant and continuing attachments to that residence” Matter of Cartwright v. Kennedy, 230 A.D.3d 969,--(3d Dep't 2024) (internal citations omitted).

Plaintiffs' argument that the “strict compliance” standard contradicts Anderson is similarly unavailing. Election Law § 6-140 (1) requires that each page of an independent nominating petition set forth the address of the candidate's “place of residence” (Election Law § 6-140 [1]). The Court of Appeals has repeatedly emphasized that although substantial compliance with Election Law requirements is acceptable as to details of form, “there must be strict compliance with statutory commands as to matters of prescribed content.” Matter of Hutson v. Bass, 54 N.Y.2d 772, 774, 426 N.E.2d 749, 443 N.Y.S.2d 57 (1981); see Matter of Stoppenbach v. Sweeney, 98 N.Y.2d 431, 433, 778 N.E.2d 1040, 749 N.Y.S.2d 210 (2002). The requirement that each page of a nominating petition set forth the candidate's “place of residence” is a matter of prescribed content, rather than form, and therefore strict compliance with the requirement is necessary (see Matter of Stoppenbach v Sweeney, 98 N.Y.2d at 433, 749 N.Y.S.2d 210, 778 N.E.2d 1040 (2002); Matter of Hutson v Bass, 54 N.Y.2d at 774, 443 N.Y.S.2d 57, 426 N.E.2d 749 (1981); Matter of Sheehan v Scaringe, 154 A.D.2d 832, 546 N.Y.S.2d 698 (1989), appeal denied 74 N.Y.2d 615, 549 N.E.2d 151, 549 N.Y.S.2d 960 (1989)).

Unlike the filing deadline at issue in Anderson, residency is a matter of prescribed content, and as New York courts have expressed, mandating strict compliance with the Election Law in this regard is designed to guarantee the integrity of the election process by facilitating the discovery of fraud and reducing the likelihood of unequal enforcement of the law (see, Seawright v Bd. of Elections in City of New York, 35 N.Y.3d 227, 233, 127 N.Y.S.3d 45, 150 N.E.3d 848 (2020); Matter of Gross v Albany County Bd. of Elections, 3 N.Y.3d 251, 258, 819 N.E.2d 197, 785 N.Y.S.2d 729 (2004)). The strict compliance standard is a safeguard against constitutional violations, and it is neutrally applied regardless of a candidate's history, background, party affiliation, protected class, or any other criterion irrelevant to a determination of whether its requirements have been met. Matter of Staber v Fidler, 65 N.Y.2d 529, 534, 482 N.E.2d 1204, 493 N.Y.S.2d 288 (1985).

*14 There is no dispute that Kennedy listed an address on every page of the nominating petition, and that he intended to list the address on each page of the nominating petition. Hearing Tr. at 76:7-24. There is also no evidence to suggest that Kennedy made some sort of error or mistake in listing the address, as was the case in Matter of Ferris v Sadowski (45 N.Y.2d 815, 381 N.E.2d 339, 409 N.Y.S.2d 133 (978)) and Matter of Maloney v Ulster County Bd. of Elections (21 A.D.3d 692, 800 N.Y.S.2d 249 (3d Dept 2005), lv denied 5 N.Y.3d 706, 801 N.Y.S.2d 800, 835 N.E.2d 660 (2005)). Ferris and Maloney involved situations in which candidates inadvertently listed previous addresses of genuine bona fide residences within the meaning of the Election Law, unlike Kennedy who intentionally, deliberately, and on the advice of counsel, listed an address at that does not qualify as a residence under New York law. Matter of Cartwright v. Kennedy, 230 A.D.3d at----. Relevant here is whether a reasonably diligent candidate could be expected to satisfy the residence requirement. Libertarian Party v. Lamont, 977 F.3d 173, 179 (2d. Cir. 2020). At issue in the State court proceeding was not whether Kennedy maintained a residence that would satisfy the residence requirements under the Election Law, but whether the address Kennedy listed on the nominating petition was in fact his actual residence. Matter of Cartwright v. Kennedy, 230 A.D.3d at ___.

And in any event, New York state courts have routinely invalidated nominating petitions where candidates did not actually reside at the addresses listed on the designating petition as their residences. See e.g., Eisenberg v Strasser, 768 N.Y.S.2d 773, 1 Misc.3d 299, 2003 N.Y. Misc. LEXIS 1144 (N.Y. Sup. Ct.), aff'd, 307 A.D.2d 1053, 763 N.Y.S.2d 782, 2003 N.Y.App.Div. LEXIS 9049 (N.Y. A.D.2d Dep't 2003) (finding address candidate listed on designating petition was false and for a business from which he retired); Lemishow v. Black, 104 A.D.2d 460, 478 N.Y.S.2d 971, 1984 N.Y.App.Div. LEXIS 19907 (N.Y. A.D.2d Dep't), aff'd, 63 N.Y.2d 684, 479 N.Y.S.2d 972, 468 N.E.2d 1109, 1984 N.Y. LEXIS 4538 (N.Y. 1984) (candidate resided in different assembly district and had never slept, eaten, or kept any clothes at the address appearing on the petition but used the address to receive mail for one to two weeks prior to the hearing and changed his place of party enrollment to that address); Brigandi v. Barasch, 144 A.D.2d 177, 535 N.Y.S.2d 117, 1988 N.Y.App.Div. LEXIS 15078 (N.Y. A.D.3d Dep't 1988) (designating petition for Congressional candidate invalidated where record supported that candidate never actually resided at address listed). Moreover, State Courts have cautioned against the creation and use of sham addresses solely for the purpose of circumventing residence requirements under the Election Law. People v. O'Hara, 96 N.Y.2d 378, 385, 729 N.Y.S.2d 396, 754 N.E.2d 155 (2001), citing Matter of Hosley v Curry, 207 A.D.2d 116, 118, 621 N.Y.S.2d 399, revd on other grounds 85 N.Y.2d 447, 626 N.Y.S.2d 32, 649 N.E.2d 1176; see also, Matter of Lemishow v Black, 104 A.D.2d 460, 478 N.Y.S.2d 971, affd 63 N.Y.2d 684, 685, 479 N.Y.S.2d 972, 468 N.E.2d 1109.

Listing correct information about a candidate's actual residence is far from a severe burden that would be constitutionally impermissible. That twenty-two States across the country require presidential candidates to publish either a domicile or residential address on ballot access petitions suggests that such disclosures are minimal requirements that assist States in regulating and ordering fair elections. See Pl. Memo. at n.10-12.

Because Plaintiffs have failed to demonstrate that the residence requirement imposed a severe burden on their rights, strict scrutiny does not apply under the Anderson-Burdick framework. ¹⁶

16 Assuming, arguendo, that strict scrutiny applies, the residence requirement is narrowly tailored to further the compelling governmental interests elucidated below.

b. Whether the Burden is Discriminatory

Plaintiffs' argument that the residence requirement discriminates against independent candidates as opposed to established party candidates and should thus be subject to strict scrutiny is without merit. ¹⁷ Independent candidates and established party nominees must both disclose the same identifying information, including their name and residence. Compare N.Y. Elec. Law § 6-140(1)(a) with N.Y. Elec. Law § 6-156 (“Party nominations; certification”). Because the requirement is neutral and applies to all candidates regardless of their party size or affiliation, the burden is nondiscriminatory and not subject to strict scrutiny.

17 Plaintiffs have conceded that, contrary to statements made in the FAC and Plaintiffs' opening brief, Section 6-156 does require President nominees of national political parties-and not merely the nominees of their New York state affiliates who are recognized “parties” pursuant to New York Election Law-to file Certificates of Nomination that include their “residence” address. See Plaintiff's Letter dated Sept. 9, 2024 (ECF No. 69).

c. Weighing the State's Interests

*15 The balancing test at the second stage of the Anderson-Burdick framework is “quite deferential.” Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 109 (2d Cir. 2008). “[A] State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (cleaned up). Otherwise, we would “hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.” Sam Party of N.Y., 987 F.3d at 276 (citing Clingman, 544 U.S. at 593, 125 S.Ct. 2029).

The purpose of inclusion of the residence address of the candidate (Election Law, § 6-132, subd 1) is not only to facilitate the processing of his petition by the Board of Elections and to ease the task of one checking his qualification to run, but perhaps most important to assure that the signers of his petition are aware of the identity of their candidate. Ferris v. Sadowski, 45 N.Y.2d 815, 817, 381 N.E.2d 339, (409 N.Y.S.2d 133 [1978]). Ultimately, a “too-liberal construction of the Election Law has the potential for inviting mischief on the part of candidates, or their supporters or aides, or worse still, manipulations of the entire election process.” Cartwright v. Kennedy, No. 906349-24, 2024 N.Y. Misc. LEXIS 3768 (N.Y. Sup. Ct. Albany Cnty. Aug. 13, 2024) (cleaned up). Moreover, “[t]he United States Constitution cannot be construed to protect candidates from making false statements on their petitions for public office.” Id. at 33, 103 S.Ct. 927.

In the instant case, this Court need not determine whether Kennedy intended to mislead or confuse anyone when he listed the New York address as his residence though he had never resided there within the meaning of the Election Law. But the State's legitimate concern in requiring candidates to accurately disclosure their residency to avoid voter confusion is neither fanciful nor flimsy. Voters might be entirely misled and manipulated into voting for a presidential candidate because he claimed to be a New York resident, although he actually resided in Oklahoma and never lived at the address he listed on his nominating petition. Perhaps the candidate had no intent of posing as a hometown candidate to attract voters. But it might certainly be the case that some voters will vote for a hometown candidate, without considering any other factors. Consider the fact that there are presently three Representatives in U.S. Congress with the last name Smith. One clear way to identify them is by their residency (Representative Smith from New Jersey, Representative Smith from Washington, and Representative Smith from Missouri). Residency is certainly a significant requirement to ensure that voters correctly identify their intended candidates. New York's residence requirement withstands the lesser exacting inquiry under Anderson-Burdick because it furthers the States' legitimate interests in providing voters with accurate information about the identities of candidates.

At its most extreme, requiring accurate residency disclosures protects voters from the type of criminal fraud and manipulation at issue in United States v. Smilowitz. There, developer defendants fraudulently registered voters, falsified registration forms, and falsely listed an address in which their chosen candidate did not reside in so that the developers could control local government decisions and further their real estate development project. United States v. Smilowitz, 974 F.3d 155, 156 (2d Cir. 2020). The residence requirement is neither a Sisyphean hurdle nor an antiquated artifact. Rather, as Judge Ryba suggested in the State Action, the provision furthers legitimate state interests:

*16 Using a friend's address for political and voting purposes, while barely stepping foot on the premises, does not equate to residency under the Election Law. To hold otherwise would establish a dangerous precedent and open the door to the fraud and political mischief that the Election Law residency rules were designed to prevent.

Cartwright v. Kennedy, 2024 N.Y. Misc. LEXIS 3768, *47 (N.Y. Sup. Ct. Albany County, Aug. 13, 2024).

On balance, requiring strict compliance with the residence requirement is an important mechanism the State uses to regulate and administer fair and orderly elections. New York Election Law's interpretation of residence effects voters and candidates alike. See Wit v. Berman, 306 F.3d 1256, 1262 (2d Cir., 2002) (noting that “[d]omicile as a rule may have its philosophical defects ... but it has enormous practical advantages over the alternatives” providing “workable standards” for election regulatory officials). And, while residency determinations might have greater import in determining in-state residency qualifications for local and state elections such as town selectman races, gubernatorial races, or U.S. Congressional races, New York does have an important interest that Presidential candidates qualify and comport with Twelfth Amendment requirements that Presidential “Electors ... shall vote ... for a President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves.” U.S. CONST. amend. XII. ¹⁸ Plaintiffs have not sufficiently demonstrated that they are likely to succeed on their claim that the residence requirement violates the Presidential Qualifications Clause. Plaintiffs argue that the residence requirement violates the limits set forth in U.S. CONST., art. II, § 1, cl. 5, because it imposes two additional qualifications on independent candidates seeking ballot access in New York. However, the residence requirement applies equally to independent and established candidates. Whether any of the twenty-one States, in addition to New York, who have similar residence requirements violate the Qualifications clause has yet to be decided by the Supreme Court.

18 See Jones v. Bush, 122 F.Supp.2d 713 (N.D. Tex. 2000). Notably, the Court's analysis rested upon determining whether Vice President nominee Cheney qualified as an inhabitant of Wyoming within the meaning of the Twelfth Amendment.

And, as described above, New York's residence requirement as it is defined is more forgiving than inhabitancy under the Twelfth Amendment. Compare N.Y. Elec. Law § 1-104(22) (“A candidate's “residence” is where he “maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.”) with Jones v. Bush, 122 F.Supp.2d 713, 719-20 (N.D. Tex. 2000) citing State of Texas v. State of Florida, 306 U.S. 398, 424, 59 S.Ct. 563, 83 L.Ed. 817 (1939) (“[A] person is an ‘inhabitant' of a state, within the meaning of the Twelfth Amendment, if he (1) has a physical presence within that state and (2) intends that it be his place of habitation. The test for ascertaining inhabitance is thus a dual inquiry concerning physical presence in fact and intent to remain in or to return to the state after an absence.”). New York State allows for multiple states of residence while an individual may only have one state of inhabitancy under the Twelfth Amendment.

*17 Under the “quite deferential” review at the second step of the Anderson-Burdick inquiry, Price, 540 F.3d at 109, the State's purported regulatory interests in guarding against voter confusion justify the de minimis burden of requiring candidates to comply with the residence requirement.

Plaintiffs have failed to show they are likely to succeed on the merits of their U.S. constitutional claims. See Matter of Cartwright v. Kennedy, 230 A.D.3d 969,----(3d Dep't 2024) (“[W]e find that none of the constitutional challenges raised by the respondent candidates has merit.”).

V. Plaintiffs Have Not Sufficiently Proved Irreparable Harm

In the First Amendment context, plaintiffs must demonstrate a likelihood of success on the merits in order to show irreparable harm. Libertarian Party of N.Y. v. N.Y. Bd. of Elections, 539 F.Supp.3d 310, 329-30 (S.D.N.Y. 2021). Because Plaintiffs have not demonstrated a likelihood of success on the merits, the Court finds that they have not established irreparable harm. ¹⁹

19 Defendants claim that there is no irreparable harm because Kennedy has stopped trying to win the 2024 Presidential election, he cannot win, and his voters can write his name in if they so choose to on the ballot. These arguments fail. There is no question that “voting is of the most fundamental significance under our constitutional structure.” Burdick, 504 U.S. at 433, 112 S.Ct. 2059. (internal citation omitted). Citizens have a right to vote for the candidate of their choice. Defendants claim that if the injunction is denied, Kennedy will not suffer irreparable harm because he cannot win the election and his supporters can write his name in. For the same reasons discussed in the section on mootness, these arguments fail. Whether a candidate can win an election is irrelevant to a citizens' constitutional right to vote for that candidate. As described above, there are important goals for Kennedy and his party in future elections in New York if Kennedy garners five percent of the national vote. Under New York law, Kennedy's party will qualify as a party automatically eligible for placement on the ballot at a future election if he receives a significant percentage of the New York vote. See Election Law §§ 1-104(3), 6-128. A write-in vote is not an adequate substitute for having a candidate's name appear on the ballot. Anderson v. Celebrezze, 460 U.S. 780 n. 26, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). “The realities of the electoral process, however, strongly suggest that ‘access' via write-in votes falls far short of access in terms of having the name of the candidate on the ballot.... [A candidate] relegated to the write-in provision, would be forced to rest his chances solely upon those voters who would remember his name and take the affirmative step of writing it on the ballot.” Lubin v. Panish, 415 U.S. 709, n. 5, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974).

VI. The Public Interest and Balancing of the Equities Do Not Support Preliminary Relief

When balancing the equities, Plaintiff has failed to prove that this extraordinary relief is warranted. In a suit against the government, balancing of the equities merges into our consideration of the public interest. New York v. U.S. Dep't of Homeland Sec., 969 F.3d 42, 58-59 (2d Cir. 2020). As explained above, the presidential-election requirement serves important regulatory interests. Certainly, “securing First Amendment rights is in the public interest,” N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013), but “that is of no help to a plaintiff [like Kennedy] who is not likely to succeed on its First Amendment claim.” Sam Party of N.Y., 987 F.3d at 278. Even if Plaintiffs could establish a likelihood of prevailing on the merits, the public interests of the State outweigh those of the Plaintiffs.

*18 While a significant number of voters certainly want to see Kennedy's name on the ballot for the upcoming Presidential election, “the interest of these voters does not outweigh the broader public interest in administrable elections.” Id. There is no question that “[no] right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” But, as the Supreme Court has advised, “the right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system”. Burdick, 504 U.S. 428, 441, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (internal citations omitted).

CONCLUSION

For the reasons set forth above, Plaintiff's emergency request for a preliminary injunction is hereby DENIED.

SO ORDERED.