Smith v. County of Nassau et al
Filing
64
ORDER granting 43 Motion for Reconsideration: For the reasons contained in the attached Memorandum Opinion and Order, the County Defendants' motion for reconsideration and for vacatur of the $500.00 per diem sanctions award issued as part of the Court's March 26, 2013 Order is granted. In all other respects, the motion is denied. So Ordered by Magistrate Judge E. Thomas Boyle on 7/24/2013. (Minerva, Deanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL SMITH,
Plaintiff,
MEMORANDUM
OPINION AND ORDER
-against-
CV 10-4874 (MKB)(ETB)
COUNTY OF NASSAU, POLICE OFFICER TIMOTHY
SLEVIN, in his official and individual capacities, POLICE
OFFICER JAMES HEALEY, in his official and individual
capacities, POLICE OFFICER MARTIN HELMKE, in his
official and individual capacities, POLICE OFFICER
NICOLE LODUCA, in her official and individual
capacities, POLICE OFFICERS JOHN AND JANE DOES
1-10, in their official and individual capacities, ZURICH
ASSOCIATES, LTD., ANNA GAETANO, in her official
and individual capacities, and HARRY G. TEREZAKIS, in
his official and individual capacities,
Defendants.
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Before the Court is a motion for reconsideration by the County of Nassau and the
individual police officers named as defendants herein (the “County Defendants”) of the Court’s
Order dated March 26, 2013, in which, inter alia, the Court imposed discovery sanctions against
Deputy County Attorney Andrew Scott (“Scott”) for the County Defendants’ failure to comply
with the Order of the Court dated October 18, 2012. The County Defendants seek to have that
portion of the Order that awards sanctions vacated.1 Plaintiff opposes the motion. For the
following reasons, the County Defendants’ motion for reconsideration and vacatur is granted in
1
The County Defendants label their motion as one for reconsideration but then go on to
describe it in their motion papers as a motion to vacate a judgment, pursuant to Federal Rule of
Civil Procedure 60. The Court finds the motion to be more properly one for reconsideration, but,
for the sake of completion, will address the within motion under each legal standard.
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part and denied in part.
FACTS
Familiarity with the facts of the underlying action is presumed. In sum, this is a
civil rights action filed by the plaintiff, Michael Smith, arising out of his arrest for criminal
trespass while residing at a residence with his fiancée, pursuant to what he believed was a valid
lease but in actuality turned out to be a scam in which he was the victim. Named as defendants
are the County of Nassau and named police officers - Timothy Slevin, James Healey, Martin
Helmke, and Nicole Loduca - who were allegedly involved in this incident, as well as real estate
agents Anna Gaetano and Harry Terezakis, employed by defendant Zurich Associates, Ltd.
On October 18, 2012, the Court issued an Order in response to the County Defendants’
failure to respond or comply with the discovery demands served by plaintiff dated November 10,
2011, which directed the County Defendants to “respond/comply with the plaintiff’s outstanding
document requests no later than November 16, 2012.” (See Docket Entry #35.) Despite repeated
requests by the plaintiff, the County Defendants failed to comply. As a result, on February 22,
2013, plaintiff moved for discovery sanctions pursuant to Federal Rule of Civil Procedure 37(b).
On March 26, 2013, the Court, in relevant part, awarded sanctions in favor of plaintiff and
against Deputy County Attorney Andrew Scott in the amount of $500.00 per day for the County
Defendants’ failure to comply with the October 18, 2012 Order.
In addition, the Court awarded plaintiff his costs incurred in making the February 22,
2013 motion for discovery sanctions, pursuant to Federal Rule of Civil Procedure 37(b)(1), and
terminated discovery by the County Defendants. The latter costs were also assessed against Scott
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and plaintiff was given ten business days to submit an application. Plaintiff has yet to make such
an application, however, since by this motion, dated April 9, 2013, the County Defendants seek
reconsideration of the Court’s March 26, 2013 Order and, more specifically, for vacatur of that
part of the Order that awards per diem sanctions against Scott.
DISCUSSION
I.
Legal Standard for a Motion for Reconsideration
Motions for reconsideration in this district are governed by Local Civil Rule 6.3 and are
committed to the sound discretion of the district court. See Ehrlich v. Inc. Village of Sea Cliff,
No. CV 04-4025, 2007 WL 1593241, at *1 (E.D.N.Y. June 1, 2007) (“A motion for
reconsideration is within the sound discretion of the district court.”); Hunt v. Enzo Biochem,
Inc., No. 06 Civ. 170, at *1 (S.D.N.Y. May 7, 2007) (“Motions for reconsideration are governed
by Local Civil Rule 6.3 and are committed to the sound discretion of the district court.”).
“Reconsideration is an ‘extraordinary remedy to be employed sparingly in the interests of finality
and conservation of scarce judicial resources.’” Hunt, 2007 WL 1346652, at *1 (quoting In re
Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). For this reason,
Local Civil Rule 6.3 is “narrowly construed and strictly applied so as to avoid repetitive
arguments on issues that have been considered fully by the court.” Dietrich v. Bauer, 76 F. Supp.
2d 312, 327 (S.D.N.Y. 1999); see also Ehrlich, 2007 WL 1593241, at *2 (stating that it is well
settled in the Second Circuit that the standard for granting a motion for reconsideration is
“strict”); Church of Scientology Int’l v. Time Warner, Inc., No. 92 Civ. 3024, 1997 WL 538912,
at *2 (S.D.N.Y. Aug. 27, 1997) (“The standards for reargument are strictly applied in order to
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preserve scarce judicial resources and avoid piecemeal litigation.”).
“To prevail on a motion for [reconsideration], the movant ‘must demonstrate that the
Court overlooked controlling decisions or factual matters that were put before it on the
underlying motion.’” Church of Scientology, 1997 WL 538912, at *2 (quoting Gill v. Gilder,
No. 95 Civ. 7933, 1997 WL 419983, at *2 (S.D.N.Y. July 28, 1997)). “A motion for
reconsideration is not a substitute for appeal . . . Nor is it ‘a second bite at the apple for a party
dissatisfied with a court’s ruling.’” Hunt, 2007 WL 1346652, at *1 (quoting Pannonia Farms,
Inc. v. USA Cable, No. 03 Civ. 7841, 2004 WL 1794504, at *2 (S.D.N.Y. Aug. 10, 2004)).
Accordingly, a party may not merely offer the same arguments that were previously submitted to
the court when seeking reconsideration. See Giordano v. Thomson, No. 03-CV-5672, 2006 WL
1882917, at *1 (E.D.N.Y. June 26, 2006) (“This Court cannot merely consider the same
arguments that were previously submitted.”) (citing Ruiz v. Comm’r of the D.O.T. of New York,
687 F. Supp. 888, 890 (S.D.N.Y. 1988), modified on other grounds, 934 F.2d 450 (2d Cir.
1991)). Moreover, a party is not permitted to “advance new facts, issues or arguments not
previously presented to the Court” on a motion for reconsideration. Caribbean Trading & Fid.
Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991) (quotation omitted).
“Indeed, a party requesting [reconsideration] ‘is not supposed to treat the court’s initial decision
as the opening of a dialogue in which that party may then use Rule [6.3] to advance new facts
and theories in response to the court’s rulings.’” Church of Scientology, 1997 WL 538912, at *2
(quoting Woddard v. Hardenfelder, 845 F. Supp. 960, 966 (E.D.N.Y. 1994) (additional citation
omitted); see also Hunt, 2007 WL 1346652, at *1 (“The restrictive application of Local Rule 6.3
helps to prevent the practice of a losing party examining a decision and then plugging the gaps of
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a lost motion with additional matters.”) (quotation omitted).
II.
Legal Standard for a Motion to Vacate a Judgment
Federal Rule of Civil Procedure 60(b)(6), the provision on which the County Defendants
rely in making the within motion, provides that “the court may relieve a party . . . from a final
judgment, order, or proceeding for . . . any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). Like a motion for reconsideration, “[t]he decision whether to grant a party’s Rule 60(b)
motion is committed to the sound discretion of the district court.” Stevens v. Miller, 676 F.3d
62, 67 (2d Cir. 2012) (internal quotations and citation omitted). “In no circumstances, though,
may a party use a Rule 60(b) motion as a substitute for an appeal.” Id.
Rather, “Rule 60(b) provides a mechanism for extraordinary judicial relief available only
if the moving party demonstrates exceptional circumstances.” Motorola Credit Corp. v. Uzan,
561 F.3d 123, 126 (2d cir. 2009) (quotations, alterations and citations omitted). For this reason,
“[r]elief under Rule 60(b) is generally not favored.” Insurance Co. of N. Am. v. Public Serv.
Mut. Ins. Co., 609 F.3d 122, 131 (2d Cir. 2010) (quotations and citation omitted). “An argument
based on hindsight regarding how the movant would have preferred to have argued its case does
not provide grounds for Rule 60(b) relief . . ., nor does the failure to interpose a defense that
could have been presented earlier . . . .” Paddington Ptrs. v. Bouchard, 34 F.3d 1132, 1147 (2d
Cir. 1994) (citations omitted).
The burden of demonstrating entitlement to relief under Rule 60(b) rests with the moving
party. See Williams v. New York City Dep’t of Corr., 219 F.R.D. 78, 84 (S.D.N.Y. 2003). In
order to meet this burden, the moving party must put forth “highly convincing” evidence, must
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“show good cause for the failure to act sooner,” and there must not be any “undue hardship . . .
imposed on other parties.” Kotlicky v. United States Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir.
1987).
Specifically, Rule 60(b)(6) is a “catch-all provision,” which “allows courts to vacate
judgments whenever necessary to accomplish justice . . . .” Aczel v. Labonia, 584 F.3d 52, 61
(2d Cir. 2009). While this provision of the Rule is considered a “‘grand reservoir of equitable
power to do justice in a particular case,’ . . . that reservoir is not bottomless.” Stevens, 676 F.3d
at 67 (quoting Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986)). A party seeking relief
under Rule 60(b)(6) must “demonstrate that extraordinary circumstances warrant relief.”
Stevens, 676 F.3d at 67 (internal quotations and citations omitted). The County Defendants have
failed to make such a showing and, for this reason, the application pursuant to Federal Rule of
Civil Procedure 60(b)(6) is denied.
III.
The County Defendants’ Grounds for Reconsideration/Vacatur
A.
The Court was “Misled” by Plaintiff During Oral Argument
The County Defendants argue that the Court should reconsider and vacate its
award of sanctions because plaintiff misrepresented to the Court at the oral argument held with
respect to plaintiff’s February 22, 2013 motion for sanctions that he had not received a single
document from the County Defendants during discovery. According to the County Defendants,
they in fact provided plaintiff with approximately twenty-two pages of documents and
photographs as part of their Rule 26(a)(1) initial disclosures. (Scott Decl. ¶¶ 3-4; Ciampoli
Decl., Ex. B.) The County Defendants therefore assert that the Court did not have all of the
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relevant information before it when it rendered its sanctions award.
The plaintiff disputes the County Defendants’ assertions. According to the plaintiff, he
did not receive any documents from the County Defendants until April 4, 2013 - after the Court
issued the sanctions order. (Pl. Mem. of Law in Opp’n 5.)
While there is an issue of fact here concerning whether or not the County Defendants did
indeed turn over twenty-two pages of discovery in connection with their initial disclosures, this
factual dispute does not alter the basis for the Court’s issuance of sanctions against Deputy
County Attorney Scott. This case is not about turning over initial disclosures pursuant to Rule
26(a)(1) of the Federal Rules of Civil Procedure. Plaintiff first advised the Court of the County
Defendants’ failure to comply with document demands and interrogatory requests by letter dated
September 26, 2012, noting that although the County Defendants had been in possession of
plaintiff’s formal demands since November 2011, they had failed to remit any responses. (Letter
from Gregory Calliste, Jr. dated Sept. 26, 2012 at 2.) In this submission, plaintiff’s counsel
repeated an allegation made in April 2012 that Deputy County Attorney Scott stated to him
relative to discovery production that he has “no obligations” or “no burden to prosecute the case”
and that “if Plaintiff fails to make sure that discovery gets completed, Plaintiff’s case will just get
dismissed.” (Id.) (emphasis in original.) Counsel for plaintiff, Mr. Calliste, went on to state that
“Mr. Scott simply challenges me to make motions to compel when I raise legitimate discovery
concerns,” concluding that “Mr. Scott has already made his position clear - that Plaintiff is the
only Party with discovery obligations in this matter and that Defendants can ‘just sit and do
nothing at all,’ then seek dismissal when discovery is not completed within the schedule set by
the Court . . . . (Id.) (emphasis in original.) Scott has never disputed this claim. He failed to
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even respond to plaintiff’s September 26, 2012 letter and did not address these allegations in his
opposition to the motion that gives rise to the sanctions awarded.
Thus, regardless of whether the County Defendants provided the disputed twenty-two
pages of documents to plaintiff in connection with its initial disclosures, the Court’s issuance of
sanctions was based on Deputy County Attorney Scott’s willful and continued failure to comply
with the discovery obligations and the intervening Order of this Court, which arose from the
failure to respond to interrogatory requests and document demands for a period of sixteen
months. Accordingly, there is no need to resolve the factual dispute raised by the parties
concerning whether the County Defendants produced the twenty-two pages of documents as part
of their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1). Such sanctions
were imposed due to Scott’s willful failure to comply with the Orders of the Court, which Scott
has readily admitted throughout these proceeding.
B.
The County Defendants Have Fully Complied with Their Discovery Obligations
The County Defendants further argue that the sanctions order should be vacated
because they complied with all of their outstanding discovery obligations within six business
days of the Order. That only compounds the egregiousness of Scott’s actions. Clearly, the
documents requested by plaintiff were relatively easy to gather and produce, given that it was
completed within six business days. Thus, the County Defendants’ compliance with the
sanctions order does not absolve Scott of the failures in his duties as an attorney and does not
entitle the County Defendants to vacatur of the Order.
That said, the County Defendants also argue that the March 26, 2013 Order “provided the
Defendants with an opportunity to purge themselves of the sanction,” based on the language in
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the Order providing that the sanctions “shall apply in the event that the County Defendants
continue to fail to fully comply with the October 18, 2012 Order of the Court.” (Def. Reply
Mem. of Law 1, 5; Order of Boyle, M.J. dated Mar. 26, 2013, 4.) According to the County
Defendants, “the implementation of sanctions was made conditional upon Defendants’ continued
non-compliance.” (Def. Reply Mem. of Law 5.)
On reconsideration, the Court is concerned with this choice of language and agrees that
this language is more appropriate to a situation where a party is afforded a limited grace period to
comply without incurring any sanctions. Given this ambiguity in the language and the
professional manner in which this action has been subsequently handled since the issuance of the
underlying Order, the County Defendants’ request to vacate the $500.00 per diem assessment as
a sanction is hereby granted.
CONCLUSION
For the foregoing reasons, the County Defendants’ motion for reconsideration and for
vacatur of the $500.00 per diem sanctions award issued as part of the Court’s March 26, 2013
Order is granted. In all other respects, the motion is denied.
SO ORDERED:
Dated: Central Islip, New York
July 24, 2013
/s/ E. Thomas Boyle
E. THOMAS BOYLE
United States Magistrate Judge
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