TADCO Construction Corp. et al v. Dormitory Authority of the State of New York et al

Filing 96

ORDER denying 94 Motion for Certificate of Appealability. For the reasons set forth in the attached Memorandum and Order, the court denies DeMartino's motion for this court's entry of partial final judgment of Judge Trager's March 19, 2010 order and issuance of a certificate of appealability as to that judgment pursuant to Federal Rule of Civil Procedure 54(b). Ordered by Judge Kiyo A. Matsumoto on 7/23/2012. (Chang, Emily)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - X
TADCO CONSTRUCTION GROUP CORP. and
THOMAS DEMARTINO,
Plaintiffs,

MEMORANDUM & ORDER

- against –

08-CV-73 (KAM)(JMA)

DORMITORY AUTHORITY OF THE STATE OF NEW
YORK, TYRONE MIDDLETON, PAT CINELLI,
JAMES GRAY, JACK KEMP and JOHN DOES
#1-#5,
Defendants.
- - - - - - - - - - - - - - - - - - - - X

MATSUMOTO, UNITED STATES DISTRICT JUDGE:
On January 7, 2008, plaintiff TADCO Construction
Corporation (“TADCO”) and TADCO’s on-site superintendent and
management representative, Thomas DeMartino (“DeMartino”)
(collectively, “plaintiffs”), brought this action against the
Dormitory Authority of the State of New York (“DASNY”) and
several DASNY employees, alleging thirty-nine federal and state
causes of action arising out of a contentious construction
contract dispute between TADCO and DASNY.

On March 19, 2010,

then-presiding Judge Trager 1 granted in part and denied in part
defendants’ motion to dismiss all of plaintiffs’ federal claims

1

The action was transferred to the undersigned on January 28, 2011.
Docket Entry dated 1/28/2011.)

1

(See

and DeMartino’s state-law claims.

The claims Judge Trager

dismissed included certain of DeMartino’s federal claims and all
of DeMartino’s state-law claims for false arrest, malicious
prosecution, and abuse of process.

On February 14, 2012, this

court denied DeMartino’s motion for reconsideration of Judge
Trager’s March 19, 2010 order.
Presently before the court is DeMartino’s motion for
this court’s entry of partial final judgment of Judge Trager’s
March 19, 2010 order and issuance of a certificate of
appealability as to that judgment pursuant to Federal Rule of
Civil Procedure 54(b).

For the reasons set forth below,

DeMartino’s motion is denied.
BACKGROUND
The court assumes the parties’ familiarity with the
underlying facts as alleged by plaintiffs and as set forth in
Judge Trager’s Memorandum and Order dated March 19, 2010 (see
ECF No. 39, Memorandum and Order dated 3/19/2010 (“Trager M&O”)
at 2–10), and repeats only facts relevant to the instant motion.
I.

Relevant Facts
On June 15, 2005, DASNY awarded TADCO a general

construction contract (the “Contract”) for work on a new ten-bed
residence building for the Staten Island Developmental
Disabilities Services Office (the “Project”).

(ECF No. 1,

Complaint (“Compl.”) at ¶¶ 14, 17, 23 & Ex. A at 2.)
2

The

project was plagued by delays that TADCO generally attributes to
DASNY’s inadequate pre-construction planning and failure to
manage DASNY’s other contractors.

(Id. ¶¶ 22, 42-45.)

A. November 9, 2006 Arrest
On November 9, 2006, defendant Tyrone Middleton
(“Middleton”), one of DASNY’s field representatives, ordered
DeMartino, TADCO’s on-site superintendent and management
representative for the Project, to cover with wood planks the
site’s open trenches, which could not be backfilled.
¶¶ 74, 76.)

(Compl.

DeMartino refused, on grounds that the work was not

specified in the Contract and required extra labor, materials,
supplies, and equipment not specified in the Contract.
¶¶ 77-78.)

(Id.

Middleton then lodged a criminal complaint against

DeMartino, demanding that the state police officers assigned to
the facility arrest DeMartino for trespassing on the job site.
(Id. ¶ 80.)

Based on Middleton’s complaint, the police arrested

and handcuffed DeMartino, and brought him to the local precinct,
where he was charged with trespass in violation of New York
Penal Law § 140.05. 2
dismissed.

(Id. ¶ 82.)

The trespass charge was later

(Id. ¶ 83.)

B. January 2007 Arrest
In early January 2007, Middleton and another DASNY
personnel lodged another criminal complaint against DeMartino,
2

Pursuant to New York Penal Law § 140.05, “A person is guilty of trespass
when he knowingly enters or remains unlawfully in or upon premises.”

3

demanding his arrest for trespassing on the job site.
¶ 84.)

(Id.

DeMartino was arrested based on the complaint and spent

the night in jail.

(Id. ¶¶ 85-86.)

DeMartino alleges that the

January 2007 complaint was “patently false[] for the same
reasons that the [November 9, 2006] complaint was false.”
¶ 85.)

(Id.

Although DeMartino was again charged with trespass in

violation of New York Penal Law § 140.05, 3 the charge was later
dismissed.
II.

(Id. ¶¶ 86-87.)

The Instant Action
A. Plaintiff’s Claims 4
DeMartino asserted claims of false arrest, malicious

prosecution, and abuse of process pursuant to 42 U.S.C. § 1983
(“Section 1983”) and state law against DASNY, Middleton,
Cinelli, and Jack Kemp (Chief of Construction Contracts for
DASNY), 5 for their respective roles in effectuating DeMartino’s
arrest on November 9, 2006.

(Compl. ¶¶ 124-150, 399-419.)

DeMartino also asserted claims of false arrest, malicious
prosecution, and abuse of process pursuant to Section 1983 and
3

4

5

Plaintiffs cite to New York Penal Law § 140.04 (see Compl. ¶ 86), but no
such provision exists; accordingly, the court construes the complaint as
referencing New York Penal Law § 140.05.
Although DeMartino joined TADCO in asserting other causes of action against
defendants, the court discusses only the relevant claims here. Furthermore,
the court notes that the claims discussed herein were brought solely by
DeMartino because, as Judge Trager correctly held in his March 19, 2010
Order, TADCO does not have third-party standing to assert claims of false
arrest, malicious prosecution, and abuse of process on behalf of DeMartino.
(See Trager M&O at 30.)
Although DeMartino alleges that Middleton was immediately responsible for
his arrest and prosecution, he also names Cinelli and Kemp as defendants on
grounds that either or both individuals approved and authorized Middleton’s
actions. (Compl. ¶¶ 139, 149, 158.)

4

state law against DASNY, Middleton, Cinelli, Kemp, and John Doe
for their respective roles in effectuating DeMartino’s arrest in
January 2007.

(Id. ¶¶ 151–177, 420-440.)

B. Judge Trager’s March 19, 2010 Order
On March 19, 2010, Judge Trager granted in part and
denied in part defendants’ motion to dismiss all of plaintiffs’
federal claims and DeMartino’s state-law claims.

(See generally

Trager M&O.)
1.

Claims Arising From November 9, 2006 Arrest

Judge Trager found that plaintiff sufficiently pled
each element of his Section 1983 claims of false arrest,
malicious prosecution, and abuse of process against Middleton.
(Id. at 31-42.)

Judge Trager noted that it appeared that

defendants had authority to terminate and remove TADCO
supervisory staff and employees at DASNY’s request pursuant to
the Contract, 6 which could furnish the probable cause that would
defeat a claim for false arrest or malicious prosecution.
at 34.)

(Id.

Nevertheless, the court determined that the facts, as

pled, left open the question of “whether or not such authority

6

The relevant contractual provision provides:
B.
If at any time the supervisory staff is not satisfactory
to the Owner, the Contractor shall, if directed by the Owner,
immediately replace such supervisory staff with other staff
satisfactory to the Owner.
C. The Contractor shall remove from the Work any employee of
the Contractor or of any Subcontractor when so directed by the
Owner.
(ECF No. 34-4, Declaration of Joel Graber (“Graber Decl.”) Ex. B § 5.01(B)(C).)

5

was properly exercised prior to DeMartino’s November 9[, 2006]
arrest.”

(Id.)

Moreover, because DeMartino’s allegations were

sufficient to state a Section 1983 claim for supervisory
liability against Cinelli and Kemp, Judge Trager denied
defendants’ motion to dismiss the Section 1983 claims against
Cinelli and Kemp.

(Id. at 46.)

Judge Trager dismissed DeMartino’s Section 1983 claims
for false arrest, malicious prosecution, and abuse of process as
against DASNY, however, because DeMartino “nowhere claimed that
it is DASNY’s official custom or policy to have the employees of
contractors with whom it is displeased arrested rather than
removed from projects through lawful channels.”

(Id. at 48.)

In addition, because plaintiff’s state-law false arrest claim
was untimely (see id. at 42–43) and plaintiff failed to plead
special damages with respect to his state-law malicious
prosecution and abuse-of-process claims (id. at 43-44), Judge
Trager dismissed all of plaintiff’s state-law claims that arose
from plaintiff’s November 9, 2006 arrest.
2.

(Id. at 45-46.)

Claims Arising From January 2007 Arrest

Judge Trager granted defendants’ motion to dismiss
DeMartino’s Section 1983 and state-law claims of false arrest,
malicious prosecution, and abuse of process that arose out of
his January 2007 arrest.

(Id. 48-51.)

Judge Trager determined

that “[e]ven under plaintiffs’ recounting of the events [of
6

DeMartino’s January 2007 arrest], probable cause existed for the
January arrest” because DASNY had indisputable authority,
pursuant to the Contract, to have DeMartino removed from the
worksite upon request and “there is no question that as of
January 2007, based on the November incident and DASNY’s
decision to remove DeMartino from the project, DASNY employees
believed DeMartino had no right to be at the job site.”
50.)

(Id. at

Judge Trager thus concluded that “the complaint of

trespassing filed by a DASNY employee in January was based on a
reasonable belief that DeMartino was in fact trespassing by
returning to the site” and probable cause to arrest therefore
existed, obviating DeMartino’s false arrest and malicious
prosecution claims under Section 1983 and state law.

(Id.)

Judge Trager also found that DeMartino’s Section 1983
and state-law abuse-of-process claims failed because “the facts
that give rise to probable cause for the January arrest also
make it impossible for DeMartino to adequately plead that the
person activating regularly issued process was moved by an
improper purpose, as required for an abuse of process claim.”
(Id. at 50-51.)
C. The Instant Motion
DeMartino brings the instant motion pursuant to
Federal Rule of Civil Procedure 54(b) (“Rule 54(b)”) seeking
certification of appealability and entry of partial final
7

judgment of Judge Trager’s March 19, 2010 Order.

(See generally

ECF No. 90, DeMartino’s Memorandum of Law in Support of Motion
for Certificate of Appealability (“DeMartino Mem.”); ECF No. 94
(“DeMartino Reply”).)

Under Judge Trager’s March 19, 2010

Order, DeMartino’s claims involving the November 9, 2006 arrest
- but not the January 2007 arrest – may proceed to trial
together with twenty-six remaining causes of action, including
claims for wrongful termination, breach of contract, quantum
meruit, and unjust enrichment.

(Trager M&O at 53-54.)

DeMartino contends that “[i]f the District Court erred
in its holding with respect to the dismissal, and that singular
determination is later upset on appeal, there would inevitably
be two trials on factually and legally identical issues,”
resulting in “duplicative trials” and an “enormous waste of
judicial resources” at the district-court level, because in
DeMartino’s estimation, “the 2006 and 2007 false arrest
incidents involve nearly identical documentary and testimonial
evidence.”

(Id. at 2, 4.)
DeMartino further asserts that Rule 54(b)

certification is appropriate because “the two sets of claims in
this case - false arrest incidents three months apart from each
other - involve nearly identical evidence based on similar sets
of events and circumstances.”

(Id. at 2.)

Accordingly,

DeMartino argues, if the court granted Rule 54(b) certification,
8

“only one jury, rather than two, [would] be required to become
familiar” with the background and incidents.

(Id. at 4 (quoting

Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d
11, 15 (2d Cir. 1997).)

DeMartino also urges the court to grant

his motion for Rule 54(b) certification because “the instant
case involves a meritorious appeal,” particularly because Judge
Trager’s March 19, 2010 Order was predicated upon inaccurate
findings, and “[t]he interests of justice, taken together with
the interest of the judicial system in preventing piecemeal
trials and preservation of court resources, warrant
certification.”

(Id. at 5; DeMartino Reply at 4.)
DISCUSSION

III. Legal Standard
In general, the court may enter final judgment in an
action only after all claims have been adjudicated.

Novick v.

AXA Network, LLC, 642 F.3d 304, 310 (2d Cir. 2011); Perez v.
Ortiz, 849 F.2d 793, 796 (2d Cir. 1988) (same).

Rule 54(b),

which provides an exception to that general rule, permits a
court to “direct entry of a final judgment as to one or more,
but fewer than all, claims . . . only if the court expressly
determines that there is no just reason for delay.”
Civ. P. 54(b).

Fed. R.

The Second Circuit has counseled, however, that

the historic “policy against piecemeal appeals ‘requires that
the court’s power to enter such a final judgment before the
9

entire case is concluded . . . be exercised sparingly.’”
Novick, 642 F.3d at 310 (quoting Harriscom Svenska AB v. Harris
Corp., 947 F.2d 627, 629 (2d Cir. 1991)).
The Rule 54(b) requirement that this court expressly
determine “that there is no just reason for delay” means that
“the court must provide a ‘reasoned,’ even if brief,
‘explanation’ of its considerations.”

Id. (quoting Harriscom,

947 F.2d at 629); Nat’l Bank of Washington v. Dolgov, 853 F.2d
57, 58 (2d Cir. 1988) (finding improper a partial judgment
entered pursuant to Rule 54(b) where partial judgment was
“conclusory in form, merely reciting the language of Rule 54(b)
without providing any explanation for the conclusion that a
partial final judgment should be entered immediately”).
Specifically, the court must consider (1) “the policy against
piecemeal appeals” and (2) “the equities between or among the
parties.”

Novick, 642 F.3d at 310.

A. Piecemeal Appeals
The first factor, piecemeal appeals, involves a
determination of “whether the claims under review are separable
from the others remaining to be adjudicated and whether the
nature of the claims already determined [i]s such that no
appellate court would have to decide the same issues more than
once even if there were subsequent appeals.”

10

Novick, 642 F.3d

at 311 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S.
1, 8 (1980)).
The Second Circuit has “repeatedly noted that the
district court generally should not grant a Rule 54(b)
certification ‘if the same or closely related issues remain to
be litigated.’”

Id. (quoting Harriscom, 947 F.2d at 629).

This

is because “[i]t does not normally advance the interests of
sound judicial administration or efficiency to have piecemeal
appeals that require two (or more) three-judge panels to
familiarize themselves with a given case’ in successive appeals
from successive decisions on interrelated issues.”

Id. (quoting

Harriscom, 947 F.2d at 631); Ginett v. Computer Task Group,
Inc., 962 F.2d 1085, 1095 (2d Cir. 1992) (“We should avoid the
possibility that the ultimate dispositions of the claims
remaining in the district court could . . . require us to decide
issues twice.”).
B. Equities Between or Among the Parties
The second factor, “equities between or among the
parties,” considers whether “there exists ‘some danger of
hardship or injustice through delay which would be alleviated by
immediate appeal.’”

O’Bert ex rel. Estate of O’Bert v.

Vargo, 331 F.3d 29, 41 (2d Cir. 2003) (quoting Cullen v.
Margiotta, 618 F.2d 226, 228 (1980)).

11

The hardships to be considered may affect a party to
the litigation.

See, e.g., Advanced Magnetics, 106 F.3d at 16

(citing, as example of “hardship or injustice,” the prospect
that “a plaintiff might be prejudiced by a delay in recovering a
monetary award”).

The Second Circuit has also recognized that

unnecessary, expensive, and duplicative trials also constitute
hardships to be considered.

See, e.g., Grand River Enters. Six

Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005)
(finding “danger of hardship or injustice” where district court
dismissed antitrust claim against thirty non-New York
defendants, and that “it would make no sense to try the
antitrust count against New York State alone if the dismissals
of the other states or the other claims turned out to be in
error”); Building Indus. Fund. v. Local Union No. 3 Int’l
Brotherhood of Elec. Workers, 992 F. Supp. 162, 191 (E.D.N.Y.
1996) (quoting Cullen, 811 F.2d at 711) (“Rule 54(b)
certification may be appropriate ‘where an expensive and
duplicative trial could be avoided if, without delaying
prosecution of the surviving claims, a dismissed claim were
reversed in time to be tried with other claims.’”).
IV.

Application
As the Second Circuit noted in Novick, “it is

incumbent upon a party seeking immediate relief in the form of a
Rule 54(b) judgment to show not only that the issues are
12

sufficiently separable to avoid judicial inefficiency but also
that the equities favor entry of such a judgment.”
314.

642 F.3d at

The court finds that DeMartino has failed to meet this

burden.
A. Piecemeal Appeals
The court finds that the first factor, piecemeal
appeals, weighs against granting DeMartino’s motion for Rule
54(b) certification.

As noted supra, the Second Circuit has

“repeatedly noted that the district court generally should not
grant a Rule 54(b) certification ‘if the same or closely related
issues remain to be litigated.’”

Novick, 642 F.3d at 311

(quoting Harriscom, 947 F.2d at 629).

Here, DeMartino argues

that Rule 54(b) certification is “proper, as the two sets of
claims in this case – false arrest incidents three months apart
from each other – involve nearly identical evidence based on
similar sets of events and circumstances.”
2.)

(DeMartino Mem. at

As defendants point out, however, DeMartino’s argument

“strongly counsels against Rule 54(b) certification” (ECF No.
93, Defendants’ Opposition to DeMartino Motion Seeking
Certification (“Defs. Mem.”), at 8), particularly because a
grant of Rule 54(b) certification at this juncture would result
in the need for “‘two (or more) three-judge panels to
familiarize themselves with a given case’ in successive appeals

13

from successive decisions on interrelated issues.”

Novick, 642

F.3d at 311 (quoting 947 F.2d at 631).
Moreover, the court finds that DeMartino’s reliance on
Advanced Magnetics, 106 F.3d 11, is misplaced.

In Advanced

Magnetics, the Second Circuit affirmed a district court’s Rule
54(b) certification of certain claims so that “only one jury,
rather than two, [would] be required to become familiar with the
[relevant underlying] events.”

106 F.3d at 17.

The Second

Circuit also noted, however, that Rule 54(b) certification was
permissible because the issues presented on appeal were
“entirely unrelated to the merits of the claims . . . to be
tried,” and because “nothing that [would] be aired at trial [of
the remaining claims would] be expected to shed light” on the
issues presented on appeal.

Id.

Here, in contrast, the issues that DeMartino would
present on an appeal regarding the claims arising from his
January 2007 arrest are related to DeMartino’s remaining claims,
as both sets of claims share nearly identical background facts
and involve nearly identical parties.

Accordingly, given the

interrelated nature of the claims, the issuance of Rule 54(b)
certification would result in the type of piecemeal appeals
against which the Second Circuit has counseled.

See Gidatex,

S.r.L. v. Campaniello Imports, Ltd., 73 F. Supp. 2d 345,
348 (S.D.N.Y. 1999) (“While the Court appreciates [defendant’s]
14

concern for the judicial resources of the district court in
attempting to avoid two trials, Rule 54(b)’s primary concern is
the conservation of the appellate court’s resources in avoiding
multiple appeals.”).
B. Equities Between or Among the Parties
The court also finds that DeMartino has failed to show
that the equities among the parties weigh in favor of Rule 54(b)
certification.

Plaintiff conclusorily submits that postponing

his appeal “may result in duplicative trials and create an
enormous waste of judicial resources” (see DeMartino Mem. at 2
(emphasis added)), but fails to give the court a sound basis for
finding that any second trial on his dismissed claims would be
so expensive and unnecessary as to constitute an unusual
“hardship or injustice.”

Moreover, DeMartino fails to account

for the fact that any second trial would be minimally
duplicative because most of the remaining twenty-six causes of
action have no relation to DeMartino’s January 2007 arrest.
The only additional hardships plaintiff identifies are
the “prejudice [caused by] having to wait until completion of a
trial to pursue his other claim” and “tremendous additional
legal fees for a potential second trial” that he will incur in
the absence of Rule 54(b) certification.

(DeMartino Mem. at 5.)

These hardships are inherent in every denial of Rule 54(b)
certification, and hardly rise to the level of hardships that
15

warrant immediate appeal, however.

See Hogan v. Consol. Rail

Corp., 961 F.2d 1021, 1025 (2d Cir. 1992) (reversing district
court’s Rule 54(b) certification for failure to find that “the
case was an exceptional one or that there would be any unusual
hardship in requiring [the parties] to await, in accordance with
normal federal practice, the disposition of the entire case
before obtaining appellate review of the dismissal of their
claims”).
In addition, the court is not persuaded by plaintiff’s
argument that the court should grant Rule 54(b) certification
because “the instant case involves a meritorious appeal and a
likelihood of success on its merits” (DeMartino Mem. at 5),
because “‘[s]peculation’ about the importance of an appeal on a
legal issue cannot ‘serve as sufficient ground to warrant a Rule
54(b) certification.’”

In re Vivendi Universal, S.A., Secs.

Litig., No. 02 Civ. 5571, 2012 WL 362028, at *3 (S.D.N.Y. Feb.
6, 2012) (quoting Cornwell v. Credit Suisse Grp., 270 F.R.D.
145, 147 (S.D.N.Y. 2010)).
The court must balance its equities analysis against
the efficiency considerations required in the first factor, see
id. at *4, and the court finds that the balance tips decidedly
against Rule 54(b) certification.

The Second Circuit has

clearly directed that the court should “sparingly” exercise its

16

power to issue partial final judgment, and the court finds no
justification for exercising such power in the instant case.
CONCLUSION
For the foregoing reasons, the court denies
DeMartino’s motion for this court’s entry of partial final
judgment of Judge Trager’s March 19, 2010 order and issuance of
a certificate of appealability as to that judgment pursuant to
Federal Rule of Civil Procedure 54(b).
SO ORDERED.
Dated:

Brooklyn, New York
July 23, 2012
______________/s/______________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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