Kogut v. The County of Nassau et al

Filing 57

MEMORANDUM AND ORDER re: 34 Notice of MOTION to Compel. For the reasons set forth herein, Defts' motion is DENIED. Deft is directed to notify the Court by letter of the status of Volpe's deposition: if the deposition has already been ta ken, Defts are directed to provide the dates on which it was taken; if the deposition has not been taken, Defts are directed to provide the dates on which it is scheduled to take place. ( Ordered by Judge Joanna Seybert on 3/31/09.) c/m c/ecf (Fagan, Linda)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------X JOHN KOGUT, Plaintiff, -againstTHE COUNTY OF NASSAU, POLICE COMMISSIONER DONALD KANE, POLICE COMMISSIONER WILLIAM J. WILLETT (2005), POLICE COMMISSIONER JAMES LAWRENCE, DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE 1985), DETECTIVE DENNIS FARRELL (HEAD OF HOMICIDE 2005), DETECTIVE JOSEPH VOLPE, DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT MARTINO, DETECTIVE WAYNE BIRDSALL, DETECTIVE MILTON G. GRUBER, DETECTIVE CHARLES FRAAS, DETECTIVE FRANK SIRIANNI, DETECTIVE HARRY WALTMAN, P.O. MICHAEL CONNAUGHTON, P.O. WILLIAM DIEHL, and JOHN DOES 1-5, Defendants. -----------------------------------------X JOHN RESTIVO, DENNIS HALSTEAD, MELISSA LULLO, JASON HALSTEAD, HEATHER HALSTEAD and TAYLOR HALSTEAD, Plaintiffs, - against NASSAU COUNTY, JOSEPH VOLPE, in his individual capacity, ROBERT DEMPSEY, in his individual capacity, FRANK SIRIANNI, in his individual capacity, MILTON GRUBER, in his individual capacity, HARRY WALTMAN in his individual capacity ALBERT MARTINO, in his individual capacity, CHARLIE FRAAS, in his individual capacity, THOMAS ALLAN in his individual capacity, RICHARD BRUSA, in his individual capacity, VINCENT DONNELLY, in his individual capacity, MICHAEL CONNAUGHTON, in his individual capacity, WAYNE BIRDSALL, in his individual capacity, WILLIAM DIEHL, in his individual capacity, JACK SHARKEY, in his individual capacity, MEMORANDUM AND ORDER 06-CV-6695 (JS)(WDW)

MEMORANDUM & ORDER 06-CV-6720(JS)(WDW)

DANIEL PERRINO, in his individual capacity, ANTHONY KOZIER, in his individual capacity, Detective Sergeant CAMPBELL, (Shield #48), in his individual capacity, SEAN SPILLANE, in his individual capacity, RICHARD ROE SUPERVISORS #1-10, in their individual capacities, Defendants. -----------------------------------------X APPEARANCES: For Plaintiffs: John Kogut Anthony M. Grandinette, Esq. Grandinette & Serio, LLP 114 Old Country Road, Suite 420 Mineola, NY 11501 Paul Casteleiro, Esq. 200 Washington Street, Suite 500 Hoboken, NJ 07030 John Restivo, Dennis Halstead, Melissa Lullo, Jason Halstead, Heather Halstead, and Taylor Halstead For Defendants: Barry C. Scheck, Esq. Deborah L. Cornwall, Esq. Monica R. Shah, Esq. Nick Joel Brustin, Esq. Anna Benvenutti Hoffman, Esq. Cochran, Neufeld & Scheck, Llp 99 Hudson Street, 8th Floor New York, New York 10013 Liora M. Ben-Sorek, Esq. Sondra Meryl Toscano, Esq. Office of the Nassau County Attorney One West Street Mineola, NY 11501

SEYBERT, District Judge: Plaintiffs, John Kogut ("Kogut"), John Restivo

("Restivo"), Dennis Halstead ("D. Halstead"), Melissa Lullo, Jason Halstead, Heather Halstead, and Taylor Halstead (collectively "Plaintiffs"), commenced these 42 U.S.C. § 1983 actions on December 19, 2006, and December 21, 2006, respectively, alleging, inter 2

alia, malicious prosecution, false arrest and imprisonment, and 14th Amendment due process violations. As part of their

Complaints, Plaintiffs allege that Defendant, Detective Joseph Volpe ("Volpe"), played a significant role in perpetrating these wrongs against them. Understandably, Plaintiffs have sought to Defendants, in turn,

depose Volpe during the discovery process.

have attempted to erect every roadblock imaginable to prevent this deposition.1 In their last challenge, Defendants sought a

protective order to prevent Volpe's deposition.

By Order dated

August 15, 2008, Magistrate Judge William D. Wall denied this motion. Defendants appealed Judge Wall's Order, and in an Order

dated September 19, 2008 ("September 2008 Order"), this Court denied Defendants' appeal. Presently pending before the Court is Defendants' newest challenge to prevent Volpe's deposition: a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from the Court's September 2008 Order. Specifically, Defendants seek For the

this relief pursuant to subsections (b)(2), (3), and (6). reasons that follow, Defendants' motion is DENIED. BACKGROUND

The Court presumes familiarity with the facts of this

A casual glance at the cases' docket sheets reveals that Defendants have filed motions to stay discovery, motions for a protective order to prevent Volpe's deposition, and the motion currently pending before the Court. 3

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case.

For a more complete discussion of the underlying facts, see

the Court's Order deciding Defendants' motion to dismiss. For purposes of this motion, the relevant facts are as follows. During a conference held on September 19, 2008, this

Court ordered the production of Volpe for his deposition by October 3, 2008. The parties, because of a variety of scheduling conflicts and excuses asserted by counsel on all sides, could not conduct the deposition within the required time. On October 20, 2008, already

two weeks past the deadline, Defendants filed their current motion seeking to be relieved of the portion of the Court's September 2008 Order, which required that Volpe be produced for his deposition by October 3. In essence, Defendants assert that (1) Plaintiffs'

scheduling conflicts provide grounds for a Rule 60 motion, even though it is apparent that both parties had scheduling conflicts. In the alternative, Defendants assert that Volpe's physical

condition warrants a reassessment of the Court's September 2008 Order, but fail to offer any new evidence that his condition has worsened or that any meaningful circumstance has changed since September 2008 that would warrant reversal of the Court's prior decision. DISCUSSION Rule 60(b) provides, in relevant part: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) newly 4

discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing par1y; . . . or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b)(2), (3) & (6). Plaintiffs assert that Defendants may not seek relief from the Court's September 2008 Order pursuant to Rule 60(b) because a party seeking relief under Rule 60 must first establish that the Court entered a final judgment. Plaintiffs maintain that an order

deciding a discovery matter does not constitute a final judgment. The Court agrees with Plaintiffs that a party seeking relief from a court's discovery order may not resort to Rule 60(b). Byrne v. Liquid Asphalt Sys., Inc., 250 F. Supp. 2d 84, 87-88 (E.D.N.Y. 2003). But even if Defendants could properly seek relief pursuant to Rule 60, they completely fail to satisfy the

requirements of the Rule.

Absolutely nothing cited in Defendants'

motion papers constitutes "new evidence" within the contemplation of Rule 60. physical Moreover, Defendants offer no evidence that Volpe's has changed such that the Court should

condition

reconsider its decision in the September 2008 Order. Additionally, Defendants fail to establish fraud on the part of Plaintiffs, as required by subsection (b)(3). Finally, Defendants provide the

court with no other reason that would justify reversal of its prior decision. 5

At bottom, the Court has the nagging suspicion that Defendants filed this motion as an ill-conceived delay tactic after having some difficulty for in scheduling Volpe's deposition. do not

Unfortunately

Defendants,

scheduling

conflicts

constitute new evidence or fraud.

Thus, in filing this motion,

Defendants achieved nothing other than wasting judicial - and client - resources. If Defendants continue such dilatory behavior

in the future, the Court may resort to Rule 11 sanctions. Accordingly, Defendants' motion is DENIED. CONCLUSION For the foregoing reasons, Defendants' motion is DENIED. Defendant is directed to notify the Court by letter of the status of Volpe's deposition: if the deposition has already been taken, Defendants are directed to provide the dates on which it was taken; if the deposition has not been taken, Defendants are directed to provide the dates on which it is scheduled to take place.

SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York March 31 , 2009

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