Briscoe v. New Haven

Filing 221

RULING granting 199 Motion to Amend/Correct. See attached Ruling. The operative complaint in this action is now the Third Amended Complaint [Doc. 199-2]. The date of its filing and service is deemed to be the date of this Ruling's entry. Defendant is directed to answer the Third Amended Complaint within the time specified by Fed.R.Civ.P. 12(a)(1)(A)(i). Signed by Judge Charles S. Haight, Jr on November 9, 2012. (Caldwell, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
MICHAEL BRISCOE,
Plaintiff,
v.

3:09-cv-1642 (CSH)

CITY OF NEW HAVEN,
Defendant.

RULING ON PLAINTIFF’S MOTION
FOR LEAVE TO AMEND COMPLAINT

HAIGHT, Senior District Judge:
Plaintiff Michael Briscoe has filed a Motion to Amend [Doc. 199], seeking leave to make
two changes in his Amended Complaint [Doc. 7], which is the currently operative Complaint. He
proposes (1) changes in the allegations, to add information about the alleged disparate impact of
Defendant’s actions, and (2) a new claim under state law. He has filed a proposed Third Amended
Complaint making these changes [Doc. 199-2]. The defendant, the City of New Haven, objects to
both changes. For the reasons stated below, the Court grants the Motion to Amend.
I.

Relevant Facts and Procedural Posture
Plaintiff’s Amended Complaint brings a single claim (the “federal claim”) under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that decisions made by
Defendant regarding its promotional process had an impermissible disparate impact on African
American applicants. On March 1, 2010, Plaintiff filed his first Motion to Amend Complaint (the
“First Motion”) [Doc. 63], seeking leave to file a Second Amended Complaint. He sought to add

1

additional factual allegations based on newly discovered facts and a second claim (the “municipal
claim”) under Defendant’s City Charter (the “Charter”) and its Civil Service Rules (the “Rules”).
Specifically, the new claim would allege that the Charter and Rules require that tests for the position
of fire lieutenant be based on a 100-point scale with a passing grade of 70%, and that Defendant’s
policies with respect to the grading of the fire lieutenant examination administered in 2003 (the
“2003 Exam”) did not follow that rule. First Motion at 1-5.
The Court denied the First Motion on April 21, 2010 in an Order later modified and docketed
on July 12, 2010. Memorandum of Opinion (the “Memorandum”) [Doc. 123]. In that Order, the
Court also dismissed the federal claim, finding that the relief Plaintiff sought was foreclosed by the
holding of the U.S. Supreme Court in Ricci v. DeStefano, 557 U.S. 557 (2009). The Court denied
the First Motion as futile for two reasons: (1) it did not cure the deficiency in the Amended
Complaint as a whole, and (2) in the absence of a viable federal claim, the Court declined to exercise
supplemental jurisdiction over the proposed municipal claim. Memorandum at 19-20. Plaintiff
appealed the decision dismissing the Amended Complaint, but did not explicitly appeal the denial
of the First Motion. On appeal, the Court of Appeals for the Second Circuit reversed the dismissal
of the Amended Complaint and remanded the action to this Court. Briscoe v. City of New Haven,
654 F.3d 200 (2d Cir. 2011).
Plaintiff filed the present Motion to Amend [Doc. 199] on September 6, 2012, seeking the
same changes in the Amended Complaint that he sought in the First Motion. Defendant responded
with an Objection to Motion to Amend (the “Objection”) [Doc. 202], focusing on the addition of the
proposed municipal claim. Defendant argues that Plaintiff abandoned the municipal claim when it
failed to appeal the Court’s decision denying the First Motion, and also provides three arguments
2

for finding that the municipal claim is not viable.
III.

Discussion
A.

Standard for Leave to Amend

Rule 15 of the Federal Rules of Civil Procedure provides that after a responsive pleading has
been filed, “a party may amend its pleading only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). A court “should freely give leave when justice so requires.”
Id. Leave to amend may be denied when the amendment would be futile. Foman v. Davis, 371 U.S.
178, 182 (1962). An amendment is futile if it would fail to survive a motion to dismiss for failure
to state a claim. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
B.

Waiver

Defendant’s first argument is procedural. It asserts that Plaintiff waived the municipal claim
when it failed to appeal the Court’s denial of the First Motion. Objection at 3-5. Plaintiff, however,
argues that the Court’s decision to deny leave to add the municipal claim in the absence of a federal
claim in the action was not “an appealable final order, failure to appeal from which would give the
order res judicata effect.” Reply to Motion for Leave to Amend Complaint (the “Reply”) [Doc. 209]
at 3 n. 2.
The allegation of waiver rests on the “law of the case” doctrine. It is to that doctrine that the
Court must look in deciding whether Plaintiff has waived the municipal claim.
Under the [law-of-the-case] doctrine, a decision made at a previous stage of litigation, which
could have been challenged in the ensuing appeal but was not, becomes the law of the case;
the parties are deemed to have waived the right to challenge that decision, for “[i]t would be
absurd that a party who has chosen not to argue a point on a first appeal should stand better
as regards the law of the case than one who had argued and lost.”
Cnty. of Suffolk v. Stone & Webster Eng’g., 106 F.3d 1112, 1117 (2d Cir. 1997), quoting Fogel v.
3

Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981).
To determine what has been waived, the Court must define the decision that Plaintiff failed
to appeal when it failed to appeal the denial of the First Motion. The Court described that decision
as follows:
Because the Proposed Second Amended Complaint [Doc. 97] cannot and does not cure the
fundamental deficiency discussed at length above - namely the fact that Briscoe’s disparate
impact claim with respect to the 2003 exam is foreclosed by the Supreme Court’s holding
in Ricci - Plaintiff’s Motion to Amend [Doc. 63] is hereby denied as futile. Furthermore, in
the absence of a viable federal claim, this Court would decline to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiff’s state and municipal law claims
relating to the alleged scoring error, and therefore it is futile to permit Plaintiff to amend his
complaint to add such claims.
Memorandum at 19-20.
Defendant treats the Court’s ruling as a decision that Plaintiff may not bring the municipal
claim, period; that is implied by Defendant’s statement that Plaintiff “abandoned his municipal-law
claim by failing to appeal this Court’s decision denying leave to amend and declining to exercise
supplemental jurisdiction.” Objection at 3. Plaintiff, on the other hand, interprets the Court’s ruling
more narrowly: as a decision that the municipal claim failed if the federal claim failed. “[T]he Court
must decide a different question from the one it did before, to wit: whether leave to amend should
be granted given that the Court could and should exercise supplemental jurisdiction over it because
plaintiff’s federal claims have been reinstated.” Reply at 3.
Both of the Court’s reasons for denying the First Motion were predicated on the correctness
of its primary decision that the federal claim failed. First, its holding that the amendment would not
cure the deficiency in the Amended Complaint as a whole depended on the holding that the
Amended Complaint was deficient. The Court did not hold that the proposed Second Amended

4

Complaint would not pass muster even if the existing complaint did. To put it another way, the
Court never held that the municipal claim would be futile even if the federal claim was viable.
Second, the Court’s decision not to exercise supplemental jurisdiction was based on the fact
that the federal claim was dismissed. “[I]n the absence of a viable federal claim, this Court would
decline to exercise supplemental jurisdiction . . . over Plaintiff’s state and municipal law claims.”
Id. at 20 (emphasis added).1 Thus, in the absence of a federal claim, the amendment would be futile.
The Court did not make any assertion about how it would rule on the supplemental-jurisdiction
question if the action does contain a federal claim.
Thus, both of the Court’s decisions that justified denial of the First Motion relied on the
correctness of the Court’s holding on the federal claim. Plaintiff challenged the correctness of that
holding when it appealed to the Second Circuit. The Second Circuit reversed that decision, finding
that the federal claim is not barred by the Supreme Court’s holding in Ricci. Briscoe v. City of New
Haven, 654 F.3d 200, 209 (2d Cir. 2000). In doing so, the Second Circuit eliminated both of the
bases for the denial of the First Motion.
The issue now before the Court is whether Plaintiff’s amendment is futile given the presence
of the federal claim. Because this Court has never ruled on that issue, the law-of-the-case doctrine
does not apply.
B.

Futility

Defendant presents three arguments that the proposed municipal claim is futile. Objection
1

There are four conditions under which a district court may decline to exercise
supplemental jurisdiction, one of which is the absence of claims over which the Court has
original jurisdiction. 28 U.S.C. § 1367(c). In the presence of a federal claim, the Court could
decline supplemental jurisdiction only if it found that one of the three remaining conditions was
satisfied. The Court never addressed those conditions.
5

at 2-3. The Court addresses each of these in turn.
First, Defendant argues that it cannot be held liable for complying with a judicial mandate,
i.e., the Ricci judgment. Id. at 7-8. In support of this argument, Defendant relies principally on the
Third Circuit’s holding in NAACP v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 484-85
(3d Cir. 2011). That holding, however, dealt with an issue not present here: whether an employer’s
act could be taken as evidence of its discriminatory intent where the act was necessary to comply
with a judicial mandate. The act at issue “can hardly be viewed as a race-based decision when it is
motivated by the imperative to comply with a judicial order.” Id. at 485). Neither of the claims in
the proposed Third Amended Complaint alleges that Defendant had a discriminatory intent.
Defendant also cites Santora v. Miklus, 199 Conn. 179, 192 (1986). The issue there was
whether a trial court could enjoin a civil service commission’s attempt to comply with the order of
a federal court. The issue of whether the commission could be liable to a third party for actions
taken to comply with an order did not arise. Id.
Defendant’s argument is essentially the position rejected by the Second Circuit: that its
actions with respect to the 2003 Exam cannot be challenged here because they were compelled by
the Supreme Court’s holding in Ricci. However, the core of the Second Circuit’s holding in this
action was that Plaintiff is not barred from bringing this action by the outcome of the Ricci litigation.
It held that Plaintiff, as a nonparty to the Ricci litigation, is not bound by the Ricci judgment unless
a common-law or statutory exception applies, and found that no such exception applies here.
Briscoe v. City of New Haven, 654 F.3d 200, 203-05 (2d Cir. 2011). The exceptions to the doctrine
of nonparty preclusion that the Second Circuit considered did not include the existence of a judicial
mandate compelling the defendant to act as it did. Id. The court noted that the Supreme Court
6

effectively rejected the position that an action cannot be challenged when it was compelled by a
judicial order in Martin v. Wilks, 490 U.S. 755 (1989); that Congress enacted specific exceptions to
the Martin holding in 42 U.S.C. § 2000e-2(n); and that the present action does not fall within those
exceptions. Id. This Court, bound by the Second Circuit’s holding, rejects Defendant’s first
argument.
Second, Defendant argues that success of the municipal claim would necessarily invalidate
the promotions given to the Ricci plaintiffs, contrary to the Second Circuit’s holding that the Ricci
plaintiffs are entitled to the full fruits of the Ricci judgment. Objection at 8. The Second Circuit
held that the federal claim would not necessarily interfere with the rights of the Ricci plaintiffs under
the judgment. Briscoe at 209. Defendant does not explain why the municipal claim differs from the
federal claim in this respect. In the absence of any complete explanation of why the municipal claim
cannot lead to the granting of relief consistent with Ricci and Briscoe, the Court must reject this
argument.
Third, Defendant argues that New Haven’s municipal law (the City Charter and Civil Service
Rules) does not contain the rules that Plaintiff alleges Defendant violated. Objection at 8-10. It
characterizes the municipal claim as asserting that each component of a civil service exam must be
graded on a 100-point scale. Id. at 10.
Plaintiff interprets his allegations differently. Reply at 4-6. He describes his position as
being based on the allegation that the exam as a whole was graded on an 84-point scale rather than
a 100-point scale and did not implement the City Charter’s rule that appointments be made only from
applicants who scored at least 70% on the exam. Id. at 5-6. Plaintiff is the master of his complaint,
and his interpretation is consistent with the language of the Third Amended Complaint. See Third
7

Amended Complaint [Doc. 199-2] at 8-10. This argument must also be rejected.
III.

Conclusion
Defendant has not established that the proposed amendment to the operative Complaint

would be futile, for reasons of either procedure or substance. It has not provided any other argument
for denying the proposed amendment in spite of the general rule that leave to amend is freely
granted. Consequently, Plaintiff’s Motion to Amend [Doc. 199] is GRANTED. The operative
complaint in this action is now the Third Amended Complaint [Doc. 199-2]. The date of its filing
and service is deemed to be the date of this Ruling’s entry. Defendant is directed to answer the Third
Amended Complaint within the time specified by Fed. R. Civ. P. 12(a)(1)(A)(i).
It is SO ORDERED.
Dated: New Haven, Connecticut
November 9, 2012
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

8